Citation Nr: 21000948 Decision Date: 01/06/21 Archive Date: 01/06/21 DOCKET NO. 17-08 981 DATE: January 6, 2021 ORDER Entitlement to a compensable rating for bilateral hearing loss is denied. FINDING OF FACT At worst, the Veteran has Level I hearing loss in each ear – so bilaterally. CONCLUSION OF LAW The criteria are not met for entitlement to a compensable rating for bilateral hearing loss. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 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 May 1977 to May 1981. This appeal to the Board of Veterans’ Appeals (Board) is from an August 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified in support of this claim during a hearing before the undersigned Veterans Law Judge (VLJ) of the Board in November 2019. A transcript of the hearing is of record. In January 2020, the Board remanded this claim for further development – including to obtain all outstanding treatment records, both private and VA, and to have the Veteran reexamined to reassess the severity of his bilateral hearing loss. Those remand instructions since have been completed, as directed. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions); but see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only “substantial” rather than strict or exact compliance with the Board's remand directives is required under Stegall); accord Dyment v. West, 13 Vet. App. 141, 146-47 (1999). The Board, consequently, is proceeding with its adjudication of the claim. Entitlement to a compensable rating for bilateral hearing loss The Veteran contends that he is entitled to a higher rating for his bilateral hearing loss because it is more severe than contemplated by his current 0 percent, i.e., noncompensable rating. Evaluations of defective hearing range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of a controlled Maryland CNC speech discrimination test together with the average hearing threshold level measured by pure tone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hertz (Hz)). 38 C.F.R. § 4.85, DC 6100. To evaluate the degree of disability from bilateral service-connected hearing loss, the schedule establishes 11 auditory hearing acuity levels designated from Level I for essentially normal hearing acuity through Level XI for profound deafness. 38 C.F.R. § 4.85, Tables VI and VII.   An exceptional pattern of hearing impairment 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). In that situation, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral. Further, when the average pure tone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral, and that numeral will then be elevated to the next higher numeral. 38 C.F.R. § 4.86(b). In June 2013, the Veteran underwent his initial VA audiological examination for VA compensation purposes. However, this examiner noted the Veteran’s claims file was not available for review and, therefore, could not provide an opinion on the issue of whether service connection was warranted for this disability (which, at the time, is what the Veteran was trying to establish). Service connection for bilateral hearing loss, however, since has been established and, as such, the results of that hearing test are pertinent to and adequate as relating to this “downstream” increased rating claim. See Fenderson v. West, 12 Vet. App. 119 (1999). The report of that June 2013 VA examination reveals the Veteran cited difficulty hearing while talking on the phone and listening to people who are far away. 38 C.F.R. § 4.10; Martinak v. Nicholson, 21 Vet. App. 447 (2007). His Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: June 2013 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 15 20 35 40 28 96 LEFT 20 25 40 40 31 96 Applying the results to Table VI, the findings yield a numeric designation of Level I in the right ear and Level I also in the left ear. Entering the resulting bilateral (i.e., right and left ear) numeric designations of Level I for the right ear and Level I for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a 0 percent, or noncompensable, disability rating under Diagnostic Code 6100. Moreover, an exceptional pattern of hearing impairment of the types contemplated by 38 C.F.R. § 4.86 was not shown. In August 2013 the Veteran again underwent a VA audiological examination as his claims file was available for review by the examining audiologist. The Veteran’s Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: August 2013 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 0 10 25 35 18 96 LEFT 15 20 35 40 28 96 Applying the results to Table VI, the findings again yield a numeric designation of Level I in the right ear and Level I also in the left ear. Entering the resulting bilateral numeric designation of Level I for the right ear and Level I for the left ear to 38 C.F.R. § 4.85, Table VII, again correlates to a 0 percent, or noncompensable, disability rating under Diagnostic Code 6100. Moreover, an exceptional pattern of hearing impairment according to 38 C.F.R. § 4.86 again was not shown. On his August 2014 VA Form 21-0958, Notice of Disagreement (NOD), the Veteran stated, “[h]earing loss affects job requirements.” But the rating for a service-connected disability contemplates there is impairment of earning capacity, so some effect on a person’s ability to do his job. See 38 C.F.R. §§ 4.1, 4.15. This is not, however, tantamount to concluding the Veteran is unemployable owing to the service-connected disability. Rather, the Court clarified in Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993), that the disability rating, itself, is recognition that industrial capabilities are impaired. During his November 2019 hearing before this Board, the Veteran testified that he has trouble hearing his wife speak at home and difficulty hearing people in loud environments. He further testified that he believes his hearing loss had gotten worse since his last VA audiological examinations in 2013. Primarily for those reasons, the Board remanded the claim in January 2020 for further development – including, as already mentioned, partly to have the Veteran reexamined to reassess the severity of his bilateral hearing loss That same month, so also in January 2020, the Veteran underwent a VA audiological test, however, it was for treatment purposes and, as such, was noted as inadequate for VA rating purposes. See 38 C.F.R. § 4.85. A VA treatment record from later in January 2020 shows the Veteran reported believing his hearing acuity had gotten “slightly worse since his last hearing test in 2013 and reports some difficulty with understanding during conversation.” The additional VA compensation examination directed to occur on remand was in March 2020, during which the Veteran reported having difficulty understanding people if there is any noise around (i.e., background noise), especially if the person speaking is on the Veteran’s left side. 38 C.F.R. § 4.10; Martinak, 21 Vet. App. 447. His Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: March 2020 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 15 25 40 45 31 98 LEFT 20 40 50 55 41 96 Applying the results to Table VI, the findings continue to yield a numeric designation of Level I in the right ear and Level I in the left ear. So, again, entering the resulting bilateral numeric designation of Level I for the right ear and Level I for the left ear to 38 C.F.R. § 4.85, Table VII, correlates to a 0 percent, or noncompensable, disability rating under Diagnostic Code 6100. Moreover, an exceptional pattern of hearing impairment as contemplated by 38 C.F.R. § 4.86 again was not shown. The Board acknowledges that the results of this most recent audiological test show some worsening of the Veteran’s bilateral hearing loss, but the results do not show severe enough worsening to warrant a higher (i.e., compensable) rating because his hearing loss still falls short of that. The March 2020 VA examiner was directed by the Board’s January 2020 remand to provide comment on whether the Veteran’s bilateral hearing loss impacts his ability to work. When the examiner asked the Veteran to discuss his perceived functional impact of his hearing loss, the Veteran only stated that he has trouble understanding people in noisy environments, especially if they are standing on his left side. However, he did not note any impact on his work and the examiner noted that work activities were unaffected by the Veteran’s hearing loss. Finally, the Board notes that the Veteran submitted private audiology test results from January 2017, March 2018, and January 2020, as identified on his February 2017 VA Form 9, Appeal to the Board of Veterans’ Appeals, and later requested in the Board’s January 2020 remand. However, these private audiology test results cannot be used for rating purposes. Generally, private audiology reports may be used as evidence if all the required information is present, and the findings can be converted to numerical charts. Further, speech discrimination must be assessed using the Maryland CNC test. If the speech recognition scores are not Maryland CNC, then those speech recognition scores cannot be applied to Table VI and cannot be used. The private audiology test results submitted by the Veteran do not include numerical charts for hearing thresholds, only graphs of the results. Additionally, there is no indication as to which speech discrimination test was used. That notwithstanding, all three tests show he had 100 percent, or perfect, speech discrimination – although, to reiterate, the test used was not indicated. Based on the evidence that has been discussed, a compensable rating for the Veteran’s bilateral hearing loss is not warranted. The Board expressly acknowledges its consideration of the lay evidence of record when adjudicating this claim, including that the Veteran has difficulty hearing his wife and having conversations in noisy public settings, especially if the speaker is on his left side. He is competent to report difficulty with his hearing; however, disability ratings for hearing loss are derived from a mechanical (meaning nondiscretionary) application of the Rating Schedule to the numeric designations resulting from audiometric testing. See Lendenmann v. Principi, 3 Vet. App. 345 (1992).   The rating criteria contemplate speech reception thresholds and ability to hear spoken words on Maryland CNC testing. The functional impact that the Veteran describes is contemplated by the rating criteria. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). His main complaint is reduced hearing acuity and clarity, which is precisely what is contemplated in the rating assigned. Rossy v. Shulkin, 29 Vet. App. 142, 145 (2017). Accordingly, the preponderance of the most probative evidence is against the claim of entitlement to a compensable rating for the bilateral hearing loss. In so concluding, the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the claim, this doctrine is inapplicable. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Pak 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.