Citation Nr: 20054652 Decision Date: 08/18/20 Archive Date: 08/18/20 DOCKET NO. 18-49 765 DATE: August 18, 2020 ORDER Entitlement to a rating in excess of 10 percent for bilateral hearing loss is denied. FINDING OF FACT Throughout the appeal period the Veteran’s bilateral hearing loss has been manifested by no worse than Level II hearing acuity in the right ear and Level VI hearing acuity in the left ear. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.85, 4.85, Diagnostic Code (DC) 6100 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1961 to September 1964. This matter comes to the Board of Veterans’ Appeals (Board) on appeal of an August 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). When the case was previously before the Board in February 2019 it was remanded for additional development. Increased Rating for Bilateral Hearing Loss Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Ratings for hearing loss disability are based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination testing together with the average hearing threshold level, in decibels (dB) as measured by pure tone audiometric tests in frequencies 1000, 2000, 3000, and 4000 Hertz (Hz). 38 C.F.R. § 4.85, DC 6100. An examination for hearing impairment for VA purposes must include a controlled speech discrimination test (Maryland CNC). To evaluate the degree of disability from defective hearing, the rating schedule requires assignment of a Roman numeral designation, ranging from I to XI. Other than exceptional cases, VA arrives at the proper designation by mechanical application of Table VI, which determines the designation based on results of standard test parameters. Table VII is then applied to arrive at a rating based upon the respective Roman numeral designations for each ear. Exceptional patterns of hearing impairment allow for assignment of the Roman numeral designation using Table VI or an alternate table, Table VIA, whichever is more beneficial to the Veteran. 38 C.F.R. § 4.86. This applies to two patterns. In both patterns each ear will be evaluated separately. The first pattern is where the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hz) is 55 dB or more. 38C.F.R. § 4.86 (a). The second pattern is where the pure tone threshold is 30 decibels or less at 1000 Hz and 70 dB or more at 2000 Hz. If the second pattern exists, the Roman numeral will be elevated to the next higher numeral. As an initial matter, the Board notes that the Veteran submitted three private audiological examination reports dated in March 2016, March 2017, and April 2017. The audiometric testing is depicted in graph form, but the Board finds that the pure tone thresholds are represented clearly enough by the graph to allow for a reliable interpretation of the graph to determine the numeric values of the pure tone levels for rating purposes. As a fact finder, the Board is permitted to interpret and rate scores provided in graph form. See Savage v. Shinseki, 24 Vet. App. 249 (2011) (noting the Board may interpret results from an audiometric graph, if it felt it had the expertise, and holding that the Board may not ignore such test results that are of record); see also Kelly v. Brown, 7 Vet. App. 471 (1995). Further, and as stated below, there is no indication as to whether the word recognitions scores for the private audiology testing dated in March 2016, March 2017, and April 2017 constituted controlled speech discrimination test (Maryland CNC); however, the Board will afford the Veteran the benefit of the doubt on this issue and find that the March 2016, March 2017, and April 2017 private audiological examinations meet the criteria of 38 C.F.R. § 4.85 (requiring that an examination for hearing impairment for VA purposes be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) without the use of hearing aids). Turning to the medical evidence, the March 2016 private audiometry report reflected that pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 40 50 Not tested 60 50 LEFT 55 45 55 65 55 Word recognition scores were 100 percent for the right ear and 73 percent for the left ear. (However, there is no indication as to whether the Maryland CNC word list was used.) These findings reflect Level I hearing impairment in the right ear and Level V hearing impairment in the left ear. 38 C.F.R. § 4.85, Table VI. Such numeric designations correspond to a 0 percent rating under Table VII, Code 6100. No exceptional pattern of hearing is shown. A July 2016 VA examination report reflected that pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 40 50 55 65 53 LEFT 55 65 70 75 66 Speech discrimination scores were 88 percent in the right ear and 76 percent in the left ear. The Veteran reported that he had difficulty understanding people in communication situations. These findings reflect Level II hearing impairment in the right ear and Level IV hearing impairment in the left ear. 38 C.F.R. § 4.85, Table VI. Such numeric designations correspond to a 0 percent rating under Table VII, DC 6100. However, based on these results the Veteran displayed an exceptional pattern of hearing loss in the left ear. See 38 C.F.R. § 4.86. As such, the Veteran’s Roman numeral designation for the left ear for this period can be alternatively derived from Table VIa. Id. Applying the July 2016 VA audiological test results for the left ear to Table VIa, the result is a Level V Roman numeral designation for the left ear. As the Level V hearing impairment from Table VIa is higher than the Level IV designation derived from Table VI, the Level V designation from Table VIa will be used to determine the disability rating for the left ear. Id. When the designations of Level II hearing impairment for the right ear and Level V for the left ear are applied to Table VII, the result is a 10 percent rating. The March 2017 private audiometry report reflected that pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 35 45 55 60 49 LEFT 50 50 60 70 58 Word recognition scores were 96 percent for the right ear and 80 percent for the left ear. (However, there is no indication as to whether the Maryland CNC word list was used.) These findings reflect Level I hearing impairment in the right ear and Level IV hearing impairment in the left ear. 38 C.F.R. § 4.85, Table VI. Such numeric designations correspond to a 0 percent rating under Table VII, DC 6100. No exceptional pattern of hearing is shown. The April 2017 private audiology report reflected that pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 40 55 65 70 58 LEFT 80 65 70 80 74 Word recognition scores were 100 percent for the right ear and 73 percent for the left ear. (However, there is no indication as to whether the Maryland CNC word list was used.) These findings reflect Level II hearing impairment in the right ear and Level VI hearing impairment in the left ear. 38 C.F.R. § 4.85, Table VI. Such numeric designations correspond to a 10 percent rating under Table VII, DC 6100. Based on these results, an exceptional pattern of hearing is shown in the left ear. Applying the April 2017 private audiological test results for the left ear to Table VIa, the result is a Level VI Roman numeral designation for the left ear. As the Level VI designation from Table VIa is the same as the Level VI designation derived from Table VI, the rating does not change based upon the exceptional pattern of hearing in this case. Such numeric designations (level II in the right ear and level VI in the left ear) remain at a 10 percent rating under Table VII. A July 2017 VA audiology report reflected the following pure tone thresholds, in decibels: HERTZ 1000 2000 3000 4000 Average RIGHT 45 60 75 80 65 LEFT 55 55 Not tested 55 55 Speech discrimination test using the Maryland CNC list was 80 percent in the right ear and no result is listed for the left ear. The July 2017 VA audiology treatment record indicated that the left ear could not be tested. Because the July 2017 VA audiology report does not contain any speech discrimination score for the left ear, the examination results are not adequate for VA rating purposes and cannot be used to evaluate the Veteran’s hearing loss. 38 C.F.R. § 4.85 (a). A June 2018 VA examination report noted that test results were not valid for rating purposes. The Veteran’s responses were noted to be unreliable for rating purposes because responses were not consistent on test/re-test. Further, the responses were determined to be inconsistent with conversational ability. Although the Veteran was reinstructed, the responses remained unreliable. At a November 2019 VA examination, the pure tone thresholds, in decibels, were reported as follows. HERTZ 1000 2000 3000 4000 Average RIGHT 35 50 60 60 51 LEFT 60 75 75 80 73 Speech discrimination scores using the Maryland CNC word list were 94 percent in the right ear and 88 percent in the left ear. The Veteran reported that he is unable to functional normally and cannot understand conversations, especially when people mumble or talk softly. He also reported that he cannot hear warning or safety signals and feels ashamed. These findings reflect Level I hearing impairment the right ear and Level II hearing impairment in the left ear. 38 C.F.R. § 4.85, Table VI. Such numeric designations correspond to a 0 percent rating under Table VII, DC 6100. Based on these results, an exceptional pattern of hearing is shown in the left ear. Applying the November 2019 VA audiological test results for the left ear to Table VIa, the result is a Level VI Roman numeral designation for the left ear. As the Level VI hearing impairment from Table VIa is higher than the Level II designation derived from Table VI, the Level VI designation from Table VIa will be used to determine the disability rating for the left ear. Id. When the designations of Level I hearing impairment for the right ear and Level VI for the left ear are applied to Table VII, the result is a 0 percent rating. Based upon the above medical evidence, a rating in excess of 10 percent is not warranted. In rendering this decision, the Board notes that the VA examinations did address the functional impact of the Veteran’s hearing loss and indicated that the Veteran had difficulty understanding speech. See Martinak v. Nicholson, 21 Vet. App. 447 (2007). The Board has also considered the Veteran’s lay contentions that his hearing is worse than currently rated and that he has difficulty hearing in conversational situations, when people talk softly, and he cannot hear safety warnings. However, as indicated above, rating a hearing loss disability involves the mechanical application of rating criteria to the results of specified audiometric studies. Here, the objective medical evidence of record consists of the above VA and private audiological examinations, which indicate that the Veteran’s hearing loss does not rise to the level of a 20 percent rating. See 38 C.F.R. § 4.85. For these reasons, the Veteran’s claim for a rating in excess of 10 percent for bilateral hearing loss is denied. (Continued on the next page)   A remand to obtain clarification from the private audiologists as to which type of word test was utilized would be unreasonable because, here, even assuming that the controlled speech discrimination tests listed were the Maryland CNC test, the results of the exams would not warrant a higher disability evaluation. See Savage, 24 Vet. App. at 259. Thus, these records do not provide the evidence needed to support an increased rating. See Savage, 24 Vet. App. at 259. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board’s consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). ROBERT C. SCHARNBERGER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Redman, 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.