Citation Nr: 20007984 Decision Date: 01/30/20 Archive Date: 01/30/20 DOCKET NO. 17-65 463 DATE: January 30, 2020 ORDER An increased (compensable) disability rating for bilateral sensorineural hearing loss (hearing loss) from April 8, 2015 to September 26, 2017 is denied. FINDING OF FACT For the rating period on appeal from April 8, 2015 to September 26, 2017, the service-connected hearing loss was manifested by no worse than Level I hearing loss for the right ear and Level I hearing loss for the left ear pursuant to Table VI, with speech recognition ability of 94 percent in the right ear and 94 percent in the left ear. CONCLUSION OF LAW The criteria for a higher (compensable) disability rating for hearing loss from April 8, 2015 to September 26, 2017 have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran, who is the appellant, had active duty service from June 1981 to January 2008. This case is an appeal from a July 2015 Department of Veterans Affairs (VA) Regional Office (RO) rating decision that, in pertinent part, denied an increased rating for hearing loss. During the pendency of the appeal, the RO granted a disability rating of 20 percent as of September 27, 2017. As a 20 percent rating was the maximum benefit that the Veteran was seeking on appeal (see September 1, 2015, Notice of Disagreement), the current appeal for increased rating pertains only to the period from the date of claim for increase (April 8, 2015) to September 26, 2017. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on the Department of Veterans Affairs (VA) to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.326(a). The Board finds that the duties to notify and assist have been met. Neither the Veteran nor the representative has raised contentions regarding notice or assistance. The examination was conducted pursuant to current audiometric testing and speech recognition testing procedures. The Veteran expressed concerns about the sterile atmosphere of the testing room, stating that it did not require dealing with background noise and other interference. While the Veteran generally disagrees with the testing methods for measuring hearing loss, such as conducting the examination in a quiet room, no specific contentions that the 2015 VA examination was irregularly conducted or is inadequate to rate the hearing loss. Disability Ratings Criteria Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. § Part 4. 38 U.S.C. § 1155. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of ratings with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. Where there is a question as to which of two disability ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Rating Hearing Loss Under the applicable criteria, ratings for hearing loss are determined in accordance with the findings obtained on audiometric evaluations. Ratings for hearing impairment range from 0 percent 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 puretone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 Hertz. 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; Diagnostic Code 6100. Hearing tests will be conducted without hearing aids and the results of above-described testing are charted on Table VI and Table VII. 38 C.F.R. § 4.85. An adequate evaluation of impairment of hearing acuity rests upon the results of controlled speech discrimination tests, together with tests of the average hearing threshold levels at certain specified frequencies. 38 C.F.R. § 4.85, Diagnostic Code 6100. The assignment of disability ratings for hearing impairment are derived from the mechanical application of the Rating Schedule to the numeric designations assigned after audiometry evaluations are conducted. Lendenmann v. Principi, 3 Vet. App. 345 (1992). Audiometric evaluations are conducted using the controlled speech discrimination tests together with the results of the puretone audiometry test. 38 C.F.R. § 4.85(a). Numeric designations of Level I through XI are assigned by application of Table VI, in which the percentage of speech discrimination is intersected with the puretone decibel loss. 38 C.F.R. § 4.85, Table VI. The results are then applied to Table VII for a percentage rating. A puretone threshold average, as used in Tables VI and VIA is the sum of the puretone thresholds at 1000, 2000, 3000, and 4000 Hertz, divided by four. That average is used in all cases, including those in 38 C.F.R. § 4.86 (patterns of exceptional hearing loss), to determine the Roman numeral designation for hearing impairment from Table VI or Table VIA (38 C.F.R. § 4.85(d). Where puretone thresholds are 55 decibels or more at each of the four specified frequencies of 1000, 2000, 3000, and 4000 Hertz, either Table VI or Table VIA is applied, and whichever results in the higher numeral shall be applied. 38 C.F.R. § 4.86(a) (describing an exceptional pattern of hearing impairment). When the puretone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz, the higher number of Table VI or Table VIA is also applied. 38 C.F.R. § 4.86(b) (describing another exceptional pattern of hearing impairment). Rating Hearing Loss The Veteran filed a claim for increased hearing loss on April 8, 2015. The disability rating as of April 8, 2015 was noncompensable (0 percent). Accordingly, VA provided an examination to obtain the necessary updated audiometric data. The Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: 7/2015 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 40 35 60 65 50 94% LEFT 35 30 45 60 43 94% Applying the results to Table VI, the findings yield a numeric designation of Level I in the right ear and Level I in the left ear. Entering the resulting bilateral numeric designation of Level I for the right ear and Level I for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a 0 percent (noncompensable) disability rating under Diagnostic Code 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown in this case. The Veteran contends that it is not possible for his hearing loss to have gone from a noncompensable rating to a 20 percent rating solely on the date of the September 27, 2017, examination. The Board recognizes that hearing loss may develop progressively; however, in this case, there are no test points between the audiogram provided above in 2015 and the September 27, 2017 examination that eventually established the 20 percent rating. For this reason, there are no measures of record to show the extent of worsening of hearing loss until the September 2017 examination. (Continued on the next page)   The Veteran also spoke to functional loss, saying that he routinely has to give daily briefings and conduct phone conversations and that the hearing loss limits the ability to effectively concentrate and conduct professional presentations. The ability to hear sounds and voices is measured and rated by the Hertz audiometric test, which specifically measures different frequencies and captures high frequency hearing loss from sources including voices, music, sirens, and similar high-pitched sounds. See Doucette v. Shulkin, 28 Vet. App. 366 (2016) (holding “that the rating criteria for hearing loss contemplate the functional effects of difficulty hearing and understanding speech”). Words missed in conversation, such as during professional presentations or phone conversations, are captured by the rating schedule proxy of Maryland CNC speech recognition testing. All the Veteran’s hearing impairment is measured and captured by either the Hertz audiometric testing or the Maryland CNC speech recognition testing. For these reasons, an increased (compensable) disability rating from April 8, 2015 to September 26, 2017 is not warranted. 38 C.F.R. §§ 4.3, 4.7, 4.85. J. PARKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Smith, 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.