Citation Nr: 18146971 Decision Date: 11/02/18 Archive Date: 11/02/18 DOCKET NO. 16-13 272 DATE: November 2, 2018 ORDER Entitlement to an initial compensable rating for bilateral hearing loss is denied. FINDING OF FACT Audiometric testing reveals hearing acuity patterns that are not consistent with a compensable evaluation under the applicable diagnostic criteria. CONCLUSION OF LAW The criteria for an initial compensable rating for bilateral hearing loss have not been met. 38 U.S.C. § 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1-4.7, 4.85, 4.86, Diagnostic Code (DC) 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service from June 1967 to April 1969. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2014 rating decision of the VA Regional Office (RO) in Oakland, California. 1. Initial compensable rating for bilateral hearing loss The Veteran asserts that his service connected hearing disability is more severe than the currently assigned noncompensable rating. Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated based on specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27. Where there is a question as to which of two evaluations shall apply, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt as to the degree of the disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Hearing loss ranges from zero to 100 percent. This is based on organic impairment of hearing acuity measured by combining controlled speech discrimination tests (Maryland CNC) results together with the average hearing- threshold level measured by pure tone audiometric tests in the frequencies of 1000, 2000, 3000, and 4000 Hertz. The rating schedule establishes eleven auditory acuity levels ranging from numeric level I for essentially normal acuity, through numeric level XI for profound deafness to evaluate the degree of disability from service-connected hearing loss. 38 C.F.R. § 4.85, Tables VI and VII, DC 6100. The ratings for disability compensation for hearing loss are determined by a mechanical, meaning nondiscretionary, application of the criteria in Table VI and Table VII. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Table VI in 38 C.F.R. § 4.85 is used to determine the numeric designation of hearing impairment based on the pure tone threshold average from the audiometry test and the results of the speech discrimination test. The vertical lines in Table VI represent nine categories of the percentage of discrimination based on the controlled speech discrimination test. The horizontal columns in Table VI represent nine categories of decibel loss based on the pure tone audiometry test. The numeric designation of impaired hearing for each ear (Levels I through XI) is determined by intersecting the vertical row, the percentage of discrimination, and the horizontal column, the pure tone decibel loss. The rating is determined in Table VII in 38 C.F.R. § 4.85 by intersecting the vertical column, the numeric designation for the ear having the better hearing acuity (as determined by Table VI), and the horizontal row, the numeric designation level for the ear having the poorer hearing acuity (as determined by Table VI). The provisions of 38 C.F.R. § 4.86, addresses exceptional patterns of hearing impairment and allows for use of Table VIA, which evaluates hearing impairment based only on pure tone averages, if the veterans pure tone threshold at each of the four specified frequencies (1000, 2000, 3000 and 4000 Hertz) is 55 decibels or more, or the pure tone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz. In this case, during a private audiometric examination in October 2013, pure tone thresholds, in decibels, were as follows: HERTZ Oct. 2013 500 1000 2000 3000 4000 Avg. RIGHT 15 10 30 85 85 52.5 LEFT 20 15 35 70 80 50 It is not specified that Maryland CNC tests were used for speech recognition; as such, applying these results to Table VIA results in Level III designations bilaterally and a zero percent evaluation. An October 2014 fee-based hearing loss examination generated the following results: HERTZ Oct. 2014 500 1000 2000 3000 4000 Avg. RIGHT 20 20 30 85 80 53.75 LEFT 25 20 40 70 65 48.75 Additionally, speech recognition scores using the Maryland CNC word lists were 76 percent in the right ear and 88 percent in the left. Again, utilizing 38 C.F.R. § 4.85, Table VI, the results correspond to a numeric designation of Level IV for the right ear and Level II for the left ear. Applying these hearing levels to 38 C.F.R. § 4.85, Table VII, results in a noncompensable rating. The Board also notes no exceptional patterns of hearing impairment. A February 2016 hearing loss examination generated the following results: HERTZ Feb. 2016 500 1000 2000 3000 4000 Avg. RIGHT 25 20 25 85 90 55 LEFT 25 25 35 75 75 52.5 It does not appear that Maryland CNC tests were used for speech recognition; as such, applying these results to Table VIA results in Level III designations bilaterally and a zero percent evaluation. In October 2016, a VA audiometric examination generated the following results: HERTZ Oct. 2016 500 1000 2000 3000 4000 Avg. RIGHT 15 20 25 80 80 51.25 LEFT 25 25 30 65 65 46.25 Additionally, speech recognition scores using the Maryland CNC word lists were 90 percent in the right ear and 96 percent in the left. The Veteran reported difficulty hearing in several conversational situations. Again, utilizing 38 C.F.R. § 4.85, Table VI, the results correspond to a numeric designation of Level II for the right ear and Level I for the left ear. Applying these hearing levels to 38 C.F.R. § 4.85, Table VII, results in a noncompensable rating. The Board also notes no exceptional patterns of hearing impairment. Outside of these four examinations, there are no other contemporaneous audiological testing results of record (i.e., puretone threshold and Maryland CNC testing), and as such these four examinations constitute the only competent evidence of record for purposes of applying 38 C.F.R. § 3.385. Disability evaluations for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered. See Lendenmann, 3 Vet. App. at 349. The Board has applied the results of the examinations during this appeal to 38 C.F.R. § 4.85, Table VII, and a compensable rating is not warranted, as shown above. The Board acknowledges the Veteran’s assertions that his hearing is worse than currently rated, that he should be entitled to a compensable disability rating, and that it affects his daily life and job functions, specifically as he reported in his November 2014 Notice of Disagreement and March 2016 Form 9. See Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). The Veteran is competent to report on factual matters and observable symptoms of which he had firsthand knowledge, and the Board finds that the Veteran is credible. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). That noted, the Board finds that the assigned noncompensable rating fully contemplates the functional effects contemplated by the Veteran, as the subjective complaints of the Veteran are consistent with his testing findings and the hearing loss those findings reflect. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). The Board finds the results of the VA audiological examinations adequately represent the severity of the Veteran’s hearing loss throughout the pendency of this claim. As such, the preponderance of the evidence is against an entitlement to an initial compensable rating for bilateral hearing loss, and the Veteran’s claim must be denied. 38 C.F.R. § 4.7. A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Evan Thomas Hicks