Citation Nr: 20020005 Decision Date: 03/18/20 Archive Date: 03/18/20 DOCKET NO. 15-45 101 DATE: March 18, 2020 ORDER The appeal for a compensable initial rating for left ear hearing loss is denied. FINDING OF FACT During the period on appeal, the Veteran’s left ear hearing loss was manifested by no worse than Level II hearing acuity; he is not service connected for right ear hearing loss. CONCLUSION OF LAW The criteria have not been met for an initial compensable disability rating g for left ear hearing loss. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably on active duty in the United States Marine Corps from June 2004 to December 2004, from January 2005 to November 2005, and from May 2010 to April 2011. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2012 rating decision. The Board remanded the Veteran’s claim in November 2019 for additional development. As previously noted by the Board, the Veteran’s hearing request was withdrawn in August 2019 correspondence. 38 C.F.R. § 20.704(e). The appeal for a compensable initial rating for left ear hearing loss is denied. Legal Criteria for Increased Ratings Disability ratings are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. The Veteran’s entire history is reviewed when making disability evaluations. See generally, Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 4.1. Where, as in the case of the Veteran’s left ear hearing loss, the question for consideration is the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection and consideration of the appropriateness of staged ratings are required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Further, “[w]here there is a question as to which of two evaluations shall be applied, the higher evaluation 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. Ratings for hearing loss disability are derived from Table VII of 38 C.F.R. § 4.85 by a mechanical application of the rating schedule to numeric designations for hearing acuity assigned after audiometric evaluations are performed. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). The numeric designations correspond to eleven auditory acuity levels, indicated by Roman numerals, where Level I equates to essentially normal acuity and Level XI equates to profound deafness. The assignment of the appropriate numeric level is based on the results of controlled speech discrimination tests in combination with the Veteran’s average hearing threshold. The average pure tone threshold is derived from pure tone audiometric testing in the frequencies of 1000, 2000, 3000, and 4000 Hertz. 38 C.F.R. § 4.85. Rating specialists use either Table VI or VIA of 38 C.F.R. § 4.85 to determine the hearing acuity level. Table VIA is used when speech discrimination tests are not appropriate due to language difficulties, inconsistent speech discrimination scores, etc., or where there is an exceptional pattern of hearing loss (defined in 38 C.F.R. § 4.86). Such exception hearing loss pattern occurs when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more. 38 C.F.R. § 4.86(a). Another occurs when the pure tone threshold at 1000 Hertz is 30 decibels or less and the pure tone threshold at 2000 Hertz is 70 decibels or more. 38 C.F.R. § 4.86(b). If, as in the case at hand, service connection of hearing loss is in effect for only one ear, in order to determine the percentage evaluation from Table VII, the non-service-connected ear will be assigned Roman Numeral designation of hearing impairment of I. 38 C.F.R. § 4.85(f). Factual Background The Veteran has undergone several hearing loss examinations since he first filed for compensation benefits with VA. A March 2011 annual audiology examination showed the following Puretone audio threshold averages: HERTZ 1000 2000 3000 4000 Avg. LEFT 20 5 15 50 22.5 No Maryland CNC speech discrimination testing results were provided. When applied to Table VIA, these results provide for Level I hearing acuity in the left ear. At an April 2012 VA audiology examination, the Veteran’s Puretone audio threshold for his left ear hearing loss showed the following threshold averages: HERTZ 1000 2000 3000 4000 Avg. LEFT 0 -5 10 50 14 His left ear Maryland CNC speech recognition was 96 percent. These results translate to a Level I under Table VI. There was no evidence of an exceptional pattern of hearing loss such that consideration under Table VIA would be appropriate. In a February 2015 VA audiology examination, the Veteran’s average Puretone threshold in decibels for his left ear were as shown: HERTZ 1000 2000 3000 4000 Avg. LEFT 5 -5 10 60 18 His Maryland CNC speech discrimination score for the left ear was 96 percent. These results translate to a Level I under Table VI. There was no evidence of an exceptional pattern of hearing loss such that consideration under Table VIA would be appropriate. The Veteran submitted an October 2019 private medical opinion from his audiologist, Dr. D.L.M. The physician indicated the Veteran’s word recognition was 80 percent in his left ear, although she did not indicate whether or not the speech recognition test used was the Maryland CNC test, as required to rate hearing loss under the statutory guidelines. Puretone threshold average for the left ear were as shown: HERTZ 1000 2000 3000 4000 Avg. LEFT 20 25 30 70 36.25 There was no evidence of an exceptional pattern of hearing loss such that consideration under Table VIA would be appropriate. As noted above, it is not clear from the opinion if the Maryland CNC speech recognition test was used, and therefore application to Table VI cannot be made. Affording the Veteran the benefit of the doubt, these results translate to a Level II hearing acuity under Table VIA. In an August 2019 audiology progress note, the Veteran reported the case history was unchanged since previous evaluation with the exception of increased difficulty in communication. The examiner noted the results of the examination are similar to previous examination indicating essentially normal hearing. No numerical measurements were indicated in this progress note. The Veteran submitted a December 2019 supplemental private medical opinion from his audiologist. This opinion contained no additional Puretone threshold readings or Maryland CNC speech recognition results. In a December 2019 the Veteran was afforded a new VA audiology examination. Puretone threshold average for the left ear were as shown: HERTZ 1000 2000 3000 4000 Avg. LEFT 20 20 30 50 30 Maryland CNC speech discrimination was 94 in the left ear. His Maryland CNC speech discrimination score for the left ear was 94 percent. These results translate to a Level I under Table VI. There was no evidence of an exceptional pattern of hearing loss such that consideration under Table VIA would be appropriate. The Veteran also submitted two lay statements from coworkers in February 2020 that indicate the Veteran has difficulty communicating while at work due to his hearing loss issues. These statements do not provide the necessary audiogram testing results necessary to rate the Veteran’s hearing loss under the statutory criteria. In his November 2015 VA Form 9, the Veteran stated that he has difficulty in his profession hearing certain instruments and differences in words. He also stated that he noticed the testing (VA audiology) only accounted for hearing loss between 1000Hz and 4000Hz, but his hearing loss drops significantly after 4000Hz. The Veteran stated that it is his belief that his moderate to moderately severe hearing loss at 4000 to 8000 hertz should rate some compensation. The Veteran also stated that his auditory brain-stem response was reported to have borderline latency issues, which he stated it was his belief that his brain was not processing sound waves as optimal as he once was. The Veteran stated his left ear hearing loss should be compensated with at least 10 percent because his left ear and right ear are significantly different. The Veteran stated in his February 2020 correspondence that he disagrees with the January 2020 Supplemental Statement of Case (SSOC). He recounted the significant ways he was exposed to high noise environments from explosions to firefights and other hazardous noises in service. The Veteran stated that his left ear hearing loss adversely affects his day to day activities. He further stated he has difficulty hearing in crowded areas with low background noise and has difficulty understanding people when they speak to him in such environments. The Veteran reported that his spouse has also commented on the numerous ways the Veteran has difficulty hearing. He also stated his left ear hearing loss adversely impacts his professional career because of the constant background noise in his laboratory environment, which makes it difficult to understand his coworkers, and can result in hazardous situations. He stated he cannot effectively communicate his research because of his left ear hearing loss. While the Board acknowledges the Veteran’s own assertions that hearing loss should be rated based on hearing acuity at frequencies other than those addressed by VA to date, hearing acuity is rated based on specific statutory provisions, and the Board is bound to apply the mechanical statutory criteria. That his hearing loss would interfere with activities of daily living is anticipated by the rating criteria. Indeed, the criteria applies to just that – hearing loss. However, the Veteran has not suggested any issues or symptoms not addressed by the schedular rating criteria. After carefully reviewing the evidence, the Board finds that no audiometry during the period under consideration showed a hearing loss disability warranting compensable rating under the schedular criteria for rating hearing loss. For all periods on appeal, the Veteran’s left ear hearing loss has been manifested by no greater than Level I or Level II hearing acuity. When applied to Table VII, Level II hearing acuity (at worst) in the worse ear, and Level I acutiy in the better ear provides for a noncompensable rating. The Board further finds that the record does not demonstrate an exceptional pattern of hearing impairment in either ear of the type contemplated by 38 C.F.R. § 4.86. Accordingly, the Board must deny the Veteran’s claim for a compensable disability rating for left ear hearing loss. The Board is grateful to the Veteran for his honorable service to our country and is sympathetic to the fact that he has medical conditions; however, the Board must apply the law as it exists. See Owings v. Brown, 8 Vet. App. 17, 23 (1995) (providing that the Board must apply the law as it exists and is not permitted to award benefits based on sympathy for a particular appellant). The Board regrets that a more favorable outcome could not be reached; however, the Veteran is able to reapply for an increased rating in the future should his hear loss become worse. M. Pryce Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Williams, 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.