Citation Nr: 20028836 Decision Date: 04/24/20 Archive Date: 04/24/20 DOCKET NO. 14-42 494 DATE: April 24, 2020 ORDER The claim for a compensable rating for bilateral hearing loss is denied. FINDING OF FACT Three audiological evaluations reflect hearing acuity between 0 and 57 percent average puretone decibel hearing loss, with at least 84 percent speech discrimination in each ear. This equates to level II hearing in each ear. CONCLUSION OF LAW The criteria for a compensable rating for bilateral hearing loss are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code (DC) 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1968 to March 1971. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a December 2013 Department of Veterans’ Affairs (VA) rating decision. The Board remanded the case in November 2018 based on the Veteran’s claim that his hearing loss had worsened since his most recent VA audiological evaluation in August 2014. The Veteran was therefore afforded another VA audiological evaluation in September 2019. A review of that evaluation report reflects that there has been substantial compliance with the Board’s remand instructions. Stegall v. West, 11 Vet. App. 268 (1998). The Veteran was awarded service connection and assigned a noncompensable (zero percent) rating for bilateral hearing loss shortly after his separation from active duty. The Veteran now claims that his hearing loss has worsened and that he is therefore entitled to a compensable rating. For the reasons set forth below, however, the Board finds that the preponderance of the evidence is against the claim. Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. In cases where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where 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. See 38 C.F.R. § 4.7. The assignment of a disability rating for hearing impairment is "derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometry evaluations are rendered." Lendenmann v. Principi, 3 Vet. App. 345, 349 (1993). Specifically, organic impairment of hearing acuity is rated using audiological test results, obtained by a state-licensed audiologist, and the basic rating method involves using both the results of controlled speech discrimination tests (Maryland CNC) and the average decibel threshold level as measured by puretone audiometry tests at the frequencies of 1000, 2000, 3000, and 4000 Hertz. 38 C.F.R. § 4.8 (a). Tests are conducted without hearing aids. VA rating criteria for evaluating hearing loss disability provide ratings from 0 percent (noncompensable) to 100 percent, based on the results of controlled speech discrimination tests together with the results of puretone audiometry tests. 38 C.F.R. §§ 4.85, 4.86, DC 6100. "Puretone threshold average," as used in Table VI, is the sum of the puretone thresholds at 1000, 2000, 3000, and 4000 Hertz, divided by four. Average puretone decibel (dB) loss is located on Table VI along a horizontal axis, and percent of speech discrimination is located along a vertical axis. These axes intersect to determine the Roman numeral designation for hearing impairment in each ear. The results are then matched between the "better" ear and the "poorer" ear on Table VII to produce a disability rating under Diagnostic Code 6100. When the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more, Table VI or Table VIa is to be used, whichever results in the higher numeral. 38 C.F.R. § 4.86(a). Additionally, when the puretone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, Table VI or Table VIa is to be used, whichever results in the higher numeral. Thereafter, that numeral will be elevated to the next higher numeral. 38 C.F.R. § 4.86(b). In Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007), the United States Court of Appeals for Veterans Claims (Court) held that in addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in his or her final report. Yet the Court also noted that even if an audiologist's description of the functional effects of a Veteran's hearing disability was somehow defective, the Veteran bears the burden of demonstrating any prejudice caused by a deficiency in the examination. Id. The Veteran in this case was afforded three VA audiological evaluations in connection with his claim for a compensable rating for bilateral hearing loss – March 2013, August 2014, and September 2019 – none of which include findings which would meet the criteria for a compensable rating. In March 2013, audiometric testing in the right ear revealed puretone thresholds of 20, 25, 45, and 60 decibels at the 1000, 2000, 3000, and 4000 levels, respectively, for an average of 38 decibels. Testing in the left ear at those same levels showed puretone thresholds of 20, 25, 60, and 75 decibels for an average of 45 decibels. Speech discrimination was 88 percent for each ear. Testing in August 2014 revealed puretone thresholds in the right ear of 25, 35, 50, and 70 decibels at the 1000, 2000, 3000, and 4000 levels, respectively, for an average of 45 decibels. Testing in the left ear at those same levels showed puretone thresholds of 20, 30, 60, and 75 decibels for an average of 46 decibels. Speech discrimination was 86 percent for the right ear and 84 percent for the left ear. And lastly, testing in September 2019 revealed puretone thresholds in the right year of 20, 25, 40, and 65 decibels at the 1000, 2000, 3000, and 4000 levels, respectively, for an average of 38 decibels. Testing in the left ear at those same levels showed puretone thresholds of 10, 25, 60, and 80 decibels for an average of 44 decibels. Speech discrimination was 88 percent for the right ear and 84 percent for the left ear. In addition to these findings, the audiologist noted that the Veteran experienced decreased hearing sensitivity bilaterally causing issues with understanding speech at work. The audiologist further commented that “hearing loss and tinnitus the Veteran reports typically interferes [sic] with word understanding in any type of competing noise. He may have difficulty hearing spoken guidance, instructions or comments from other workers when in noise. He may also have difficulty understanding phone conversations since one cannot read lips and facial expressions of the other talker during telephone exchanges. Once he understands the topic at hand, the hearing should not interfere with completion of work.” Applying the criteria found in 38 C.F.R. § 4.87 at Table VI to the three audiometric test results show that the Veteran's hearing loss does not warrant a compensable rating. The above findings yield a numerical designation of no greater than level II for each ear (between 0 and 57 percent average puretone decibel hearing loss, with at least 84 percent speech discrimination). Entering the category designations for each ear into Table VII produces a disability percentage rating of zero percent. The Board thus finds that the Veteran's bilateral hearing loss was properly assigned a noncompensable rating. The Board has carefully considered the Veteran's statements regarding his hearing loss disability, as noted in his submitted statements and audiological evaluation reports. The Veteran explained that he works as a paratransit driver in which he drives elderly and disabled passengers to and from medical appointments, schools, libraries, banks, etc. He explained that his hearing loss makes it difficult to communicate with his passengers, especially since he must face people in order to read their lips. He also explained that any kind of background noise – including traffic, the bus engine, and multiple conversations – “kills his hearing and ability to comprehend.” The Veteran is indeed competent to report symptoms related to his hearing loss disability. He is also credible. However, even after considering the functional impact of his hearing loss, the objective evidence shows that a compensable rating for bilateral hearing loss is not warranted. The United States Court of Appeals for Veterans Claims in Martinak, 21 Vet. App. at 454 and Doucette v. Shulkin, 28 Vet. App. 366 (2017) has held that the Veteran's inability to hear or understand speech or to hear other sounds in various contexts is sufficiently measured during a VA audiological evaluation, and that such functional effects are contemplated by the schedular rating criteria. Moreover, findings from a VA audiological evaluation represent the best evidence for deciding the claim, as they directly address the rating criteria. A compensable rating for bilateral hearing loss is simply not warranted here based on findings from three VA audiological evaluations. (Continued on the next page)   In conclusion, the Board finds that the preponderance of the evidence is against the Veteran’s claim of entitlement to a compensable rating for bilateral hearing loss. In reaching this conclusion, the Board has considered the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b). JOHN Z. JONES Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Department of Veterans Affairs 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.