Citation Nr: 20004640 Decision Date: 01/21/20 Archive Date: 01/21/20 DOCKET NO. 16-08 720 DATE: January 21, 2020 ORDER For the rating period on appeal prior to June 30, 2015, a compensable rating for bilateral hearing loss disability is denied. FINDING OF FACT For the rating period on appeal prior to June 30, 2015, the Veteran’s right ear hearing loss has been manifested by hearing acuity no worse than Level I in the right ear and Level IV in the left ear. CONCLUSION OF LAW For the rating period on appeal prior to June 30, 2015, the criteria for a compensable rating for bilateral hearing loss are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.85, 4.86, Diagnostic Code 6100 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1968 to December 1972. In June 2018, the Board denied entitlement to a rating higher than 10 percent for bilateral hearing loss disability from June 30, 2014, forward. In addition, the Board remanded the issue of entitlement to a compensable rating for bilateral hearing loss disability prior to June 30, 2015. Specifically, the Board found that the delay caused by not issuing a statement of the case until December 2015 in response to a timely September 2009 Notice of Disagreement required that VA attempt to obtain any outstanding audiology treatment records from 2008 to 2015. Entitlement to a Compensable Rating for Bilateral Hearing Loss Prior to June 30, 2015 Under DC 6100, ratings for hearing loss are determined in accordance with the findings obtained on audiometric examination. Evaluations of hearing impairment range from non-compensable to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests, together with the average hearing threshold level as measured by pure tone audiometry tests in the frequencies 1000; 2000; 3000; and 4000 Hertz (cycles per second). To evaluate the degree of disability from hearing impairment, the rating schedule establishes eleven auditory acuity levels designated from Level I for essentially normal acuity through Level XI for profound deafness. 38 C.F.R. § 4.85, DC 6100. As set forth in the regulations, Tables VI, VIA, and VII are used to calculate the rating to be assigned. See 38 C.F.R. § 4.85, DC 6100. Hearing tests will be conducted without hearing aids, and the results are charted on Table VI and Table VII. See 38 C.F.R. § 4.85. Alternatively, VA regulations provide that in cases of exceptional hearing loss, when the pure tone thresholds at each of the four specified frequencies (1000, 2000, 3000 and 4000 Hertz) is 55 decibels or more, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86(a). The provisions of 38 C.F.R. § 4.86(b) further provide that, when the pure tone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever would result in the higher numeral. That numeral will then be elevated to the next higher Roman numeral. Each ear will be evaluated separately. For the reasons expressed below, the Board finds that prior to June 30, 2015, a compensable rating for bilateral hearing loss is not warranted. In a July 2007 rating decision, the RO granted service connection for bilateral hearing loss and assigned a noncompensable disability rating. VA received the Veteran’s increased rating claim on August 19, 2008. Although outside the period on appeal, the Board considered the finding in the July 2007 VA audiology examination, at which time pure tone thresholds, in decibels, were recorded as follows: HERTZ AVG 1000 2000 3000 4000 RIGHT 39 20 15 50 70 LEFT 50 15 55 65 65 Speech audiometry revealed speech recognition ability of 94 percent in the right ear and 76 percent in the left ear. Here, applying the July 2007 audiometric result to Table VII, the Veteran had Level I hearing acuity in the right hear and Level IV hearing acuity in the left ear, resulting in a noncompensable rating. An exceptional hearing pattern was not demonstrated. Thereafter, in September 2008, the Veteran underwent an additional audiology examination, at which time pure tone thresholds, in decibels, were recorded as follows: HERTZ AVG 1000 2000 3000 4000 RIGHT 50 25 35 60 80 LEFT 59 25 65 70 75 Speech audiometry revealed speech recognition ability of 96 percent in the right ear and 92 percent in the left ear. Here, applying the September 2008 audiometric result to Table VII, the Veteran had Level I hearing acuity in the right hear and Level II hearing acuity in the left ear, resulting in a noncompensable rating. An exceptional hearing pattern was not demonstrated. An April 2011 VA audiogram was associated with the claims file, at which time pure tone thresholds, in decibels, were recorded as follows: HERTZ AVG 1000 2000 3000 4000 RIGHT 46 20 35 60 70 LEFT 55 20 65 65 70 Speech audiometry revealed speech recognition ability of 92 percent in the right ear and 80 percent in the left ear; however, the audiologist did not use the Maryland CNC as required by the rating criteria. Furthermore, the audiologist noted that the audiogram was not adequate for rating purposes but provided no additional explanation. Regardless, however, even if applying the April 2011 audiometric result to Table VII, the Veteran had Level I hearing acuity in the right hear and Level IV hearing acuity in the left ear, resulting in a noncompensable rating. An exceptional hearing pattern was not demonstrated. An associated treatment record indicated that the Veteran sustained mild to moderately severe and moderate to severe hearing loss and the hearing sensitivity was only “slightly worse” in comparison to the 2007 evaluation. According to May 2011 VA audiology treatment note, the Veteran received new hearing aids and was pleased with the sound quality. Subsequent treatment records dated from 2012 to 2015 showed no additional treatment for the service-connected bilateral hearing loss disability and contained no additional audiometric results. Based on the results of the audiological evaluations discussed above, and in the absence of any additional evidence showing a more severe hearing disability, a compensable rating prior to June 30, 2015 is not warranted. The Board does not discount the difficulties the Veteran has with his auditory acuity and sympathizes with the fact that he had to wait an unreasonable amount of time for a new VA examination. However, the Board has no discretion in this matter and must predicate its determination on the basis of the results of the audiology studies of record. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992) (the assignment of a disability rating for service-connected hearing impairment is derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered). In addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in the final report. See Martinak v. Nicholson, 21 Vet. App. 447 (2007). The September 2008 examiner considered the functional effects caused by the Veteran’s hearing loss indicating that the Veteran had difficulty hearing and needed to ask others to repeat what they say. The Board further notes in compliance with the Board’s June 2018 remand directives, the RO sent the Veteran a February 2019 letter asking him to identify any outstanding audiology treatment records. Although the copy of the letter mailed to the Veteran’s attorney was returned to VA as undeliverable, there is no indication that the Veteran did not receive a copy of the letter. Nevertheless, to-date, the Veteran has failed to respond. In September 2019, the RO associated with the claims file VA treatment records dated from 2012 to 2019 and readjudicated the claim in a supplemental statement of the case. Accordingly, the Board finds that there has been substantial compliance with the remand directives. In this regard, the Board notes that although the VA has a duty to assist the Veteran in substantiating his claims, that duty is not a one-way street and it is important that he make efforts to assist VA in gathering evidence relevant to his claim. Woods v. Gober, 14 Vet. App. 214, 224 (2000); see also Hurd v. West, 13 Vet. App. 449, 452 (2000). Here, the Board finds that to the extent possible, VA has attempted to assist the Veteran. Accordingly, no further attempts to assist the Veteran are warranted. As a preponderance of the evidence is against the assignment of a higher rating, the benefit-of-the-doubt rule does not apply, and the claim must be denied. LAURA E. COLLINS Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Yaffe, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.