Citation Nr: 21000554 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 16-35 561A DATE: January 5, 2021 ORDER Entitlement to a compensable rating for bilateral hearing loss is denied. FINDING OF FACT The Veteran’s hearing loss is manifested by hearing impairment corresponding to auditory acuity of no more than level II in the left ear and level IV in the right ear. CONCLUSION OF LAW The criteria for a compensable rating for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.85, Diagnostic Code 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from September 1957 to September 1963. In August 2016, the Veteran testified at a Decision Review Officer (DRO) hearing. A transcript of the hearing has been associated with the claims folder. In addition, the Veteran requested a Travel Board hearing which was scheduled in April 2019; however, the Veteran did not appear for the hearing. Thus, there are no outstanding hearing requests. This matter was previously before the Board in December 2019 and was remanded for further development. As remand directives have been substantially complied with, the matter has been returned to the Board for further appellate review. Stegall v. West, 11 Vet. App. 268, 271 (1998). Entitlement to a compensable rating for bilateral hearing loss. The Veteran’s bilateral hearing loss has been rated under the provisions of 38 C.F.R. § 4.85, Diagnostic Code 6100. Disability ratings for hearing loss are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are performed. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Hearing loss disability ratings range from noncompensable to 100 percent based on organic impairment of hearing acuity, as measured by controlled speech discrimination tests in conjunction with the average hearing threshold, as measured by puretone audiometric tests in the frequencies 1,000, 2,000, 3,000 and 4,000 cycles per second. 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 Table VI is the sum of the puretone thresholds at 1000, 2000, 3000, and 4000 Hertz, divided by four. This average is used in all cases to determine the Roman numeral designation for hearing impairment from Table VI or VIa. 38 C.F.R. § 4.85 (d). Where there is an exceptional pattern of hearing impairment as defined in 38 C.F.R. § 4.86, the rating may be based solely on puretone threshold testing. An exceptional pattern of hearing impairment occurs when the puretone thresholds in each of the four frequencies 1000, 2000, 3000, and 4000 Hertz are 55 decibels or greater, or when the puretone threshold at 1000 Hertz is 30 decibels or less and the threshold at 2000 Hertz is 70 decibels or more. 38 C.F.R. § 4.86 (a), (b). The Veteran seeks a compensable rating for his service-connected hearing loss. Records show the Veteran received a private audiology examination in May 2015. As the private record is in graph form, the Board may interpret the graphical representation contained in the audiogram into numerical results so as to appropriately rate the hearing disability. See Kelly v. Brown, 7 Vet. App. 471 (1995). The puretone thresholds for the frequencies of interest are as follows: 500Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz Average Right 15 20 60 90 75 61 Left 20 25 40 60 55 45 Word recognition scores were noted as 80 percent in the right ear and 90 percent in the left ear; however, there is no indication that the Maryland CNC speech discrimination test was used. Nevertheless, application of Table VI to the audiometric results yield Roman Numeral IV for the right ear and Roman Numeral II for the left ear. Using the Veteran’s right ear as the poorer ear, a noncompensable evaluation is derived from Table VII. In July 2015, the Veteran received a VA audiology examination which revealed the following puretone thresholds for the frequencies of interest: 500Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz Average Right 10 15 55 65 70 51 Left 15 20 35 60 50 41 The Veteran’s speech recognition score based on the Maryland CNC Test was 92 percent in the right ear and 96 percent in the left ear. Mechanical application of Table VI to the audiometric results yield Roman Numeral I for both the right ear and left ear. Applying Roman Numeral I for both ears to Table VII provides that a non-compensable rating is assigned for those numeric designations. VA treatment records show the Veteran reported that his hearing loss had worsened in a September 2016 audiology visit. He specifically reported that his hearing has decreased since his last examination, and that he has difficulty when he is in background noise. The examiner noted the Veteran was last seen for an audiological examination in July 2015 which revealed normal hearing sloping to a severe sensorineural hearing loss bilaterally. The examiner discussed hearing aid options with the Veteran, and an October 2016 audiology note shows the Veteran received hearing aids. The Board notes that pursuant to the Board’s prior remand, the September 2016 audiology graph was obtained; however, speech pathology scores were deemed unavailable in an October 2020 VA memorandum. Nonetheless, in an October 2020 response to the AOJ’s request for the examination results, the attending audiologist provided the hearing examination results and speech reception scores. The Board notes, however, that the audiologist explained that a regular diagnostic audiometric evaluation does not use compensation and pension protocols, and that the CNC word list is typically not used. Notwithstanding these findings, the Board has applied the relevant results of the examination which are as follows: 500Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz Average Right 20 20 60 60 70 53 Left 15 25 40 65 55 46 The examiner noted speech reception scores were 80 percent for the right ear and 96 percent for the left ear. Mechanical application of Table VI to the audiometric results yield Roman Numeral IV for the right ear and Roman Numeral I for the left ear. Using the Veteran’s right ear as the poorer ear, a noncompensable evaluation is derived from Table VII. These results were subsequently confirmed in an April 2017 VA audiology examination where testing showed the following puretone thresholds: 500Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz Average Right 15 20 60 85 80 61 Left 10 25 40 65 65 49 The Veteran’s speech recognition score based on the Maryland CNC Test was 80 percent in the right ear and 88 percent in the left ear. Mechanical application of Table VI to the audiometric results yield Roman Numeral IV for the right ear and Roman Numeral II for the left ear, and a noncompensable evaluation is derived from Table VII. Considering the above, the Board finds that a compensable rating is not warranted. While the Veteran is in receipt of hearing aids which suggest his hearing loss has worsened, the audiometric findings during the appeal period do not support a compensable rating for hearing loss, and none of the examinations show an exceptional pattern of hearing loss as defined by § 4.86. Accordingly, the Board finds that the most probative evidence of record shows that a noncompensable rating is warranted for the Veteran’s hearing loss disability. As the preponderance of the evidence is against the claim, the benefit of the doubt rule does not apply, and the claim is denied. 38 U.S.C. § 5107 (b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Laffitte, 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.