Citation Nr: 20052939 Decision Date: 08/10/20 Archive Date: 08/10/20 DOCKET NO. 12-22 153 DATE: August 10, 2020 ORDER Entitlement to a compensable rating prior to December 17, 2019, and a rating higher than 30 percent thereafter, for service-connected bilateral hearing loss is denied. FINDINGS OF FACT 1. Prior to December 17, 2019, at worst, the Veteran’s right and left ear hearing was at Level II in each ear. When applied to Table VI and VII, these findings result in a zero percent rating. 2. From December 17, 2019, at worst, the Veteran’s right ear showed Level VII hearing acuity and left ear hearing acuity was Level VI. When applied to Table VIA and Table VII, these findings result in a 30 percent rating. CONCLUSION OF LAW The criteria for a compensable rating prior to December 17, 2019, and a rating higher than 30 percent thereafter, for service-connected bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code (Code) 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty with the U.S. Army from November 1967 to October 1970. The Board remanded the appeal in May 2019 in order to updated examination findings. A contract VA examination was conducted in December 2019. 1. Entitlement to a compensable rating prior to December 17, 2019, and a rating higher than 30 percent thereafter, for service-connected bilateral hearing loss. A disability rating is determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The Rating Schedule provides a table (Table VI) to determine a Roman numeral designation (I through XI) for hearing impairment, based on puretone thresholds and controlled speech discrimination (Maryland CNC) testing. Table VII is used to determine the rating assigned by combining the Roman numeral designations for hearing impairment of each ear. 38 C.F.R. § 4.85. The “puretone threshold average” as used in Tables VI, is the sum of the puretone thresholds at 1000, 2000, 3000, and 4000 Hertz, divided by four. This average determines the Roman numeral designation for hearing impairment from Table VI or Via. 38 C.F.R. § 4.85(d). Ratings for hearing impairment are derived by the mechanical application of the Rating Schedule to the numeric designations assigned after audiometry evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345 (1992). When the puretone threshold at each of the four specified frequencies (1,000, 2,000, 3,000, and 4,000 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 1,000 Hertz, and 70 decibels or more at 2,000 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). An examination for hearing impairment for VA purposes must be conducted by a state licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a puretone audiometry test. Examinations will be conducted without hearing aids. 38 C.F.R. § 4.85(a). Further, in Martinak v. Nicholson, 21 Vet. App. 447 (2007), the United States Court of Appeals for Veterans Claims (Court) held that in addition to dictating objective test results a VA audiologist must describe the functional effects caused by a hearing disability in his or her final report. The Court also noted, however, 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. Further, the Federal Circuit has noted that such is not part of the rating criteria. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (2009). The Veteran asserts that his bilateral hearing loss is more severe than the current ratings assigned. The pertinent evidence consists of two VA audiological evaluations dated in March 2015 and December 2019. On the authorized audiological evaluation in March 2015, puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 45 45 65 75 75 LEFT 45 50 65 75 80 The puretone threshold average for the right ear was 65 and the average for the left ear was 68. Speech audiometry revealed speech recognition ability of 96 percent in both ears. Utilizing Table VI listed in 38 C.F.R. § 4.85, the above audiological findings show Level II hearing acuity in each ear. Using Level II hearing under Table VII in 38 C.F.R. § 4.85, these findings confirm a noncompensable rating. On the authorized audiological evaluation in December 2019, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 60 65 70 90 90 LEFT 60 65 70 80 85 The pure tone threshold average for the right ear was 79 and the average for the left ear was 75 percent. Speech audiometry revealed speech recognition ability of 80 percent in the right ear and of 76 percent in the left ear. Utilizing Table VI, the above audiological findings show Level V hearing acuity in both the right and left ears. Using Level V hearing under Table VII in 38 C.F.R. § 4.85, these findings warrant a 20 percent rating. However, the four frequencies (1000-4000 Hertz) were 55 decibels or more—which meets the requirement for an exceptional pattern of hearing impairment. Using Table VIA for exceptional patterns of hearing impairment, the Veteran has Level VII in the right ear and Level VI hearing acuity in the left ear. These findings warrant a 30 percent rating. Based on the results of the audiological evaluations discussed above, and in the absence of any additional medical evidence adequate for rating purposes that shows a more severe hearing disability, the hearing loss has not approximated the criteria for a compensable rating prior to December 17, 2019 and higher than 30 percent since such date. Although the Board sympathizes with the Veteran’s belief that he should be assigned higher disability ratings on the basis that his hearing loss has increased in severity, the Board has no discretion in this matter and must predicate its determination based on the results of the audiology studies of record. See Lendenmann, supra. Thus, the assignment of higher disability ratings is not warranted. To the extent that he contends that his hearing loss is more severe than the ratings that are currently assigned, the Board observes that the Veteran, although competent to report that he has difficulty hearing, is not competent to report that his hearing acuity is of sufficient severity to warrant increased compensation under VA’s tables for rating hearing loss disabilities because such an opinion requires medical expertise (training in evaluating hearing impairment), which he has not been shown to have. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Despite the foregoing, the Board acknowledges the Veteran’s report regarding the severity of his bilateral hearing loss, to include difficulty with communication. After considering such contentions as to the effects of the disability on his daily life, the Board finds that the criteria for additional compensation other than that to which he was found to be entitled to above are not met. H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Price, 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.