Citation Nr: 21001772 Decision Date: 01/11/21 Archive Date: 01/11/21 DOCKET NO. 18-32 632 DATE: January 11, 2021d ORDER Entitlement to a compensable disability rating for bilateral hearing loss disability is denied. FINDING OF FACT Bilateral hearing loss disability has been productive of a puretone threshold average of 78.75 decibels (dB) in the right ear and 35 dB in the left ear with speech discrimination scores of 94 percent in the right ear and 96 percent in the left ear, at worst. 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. §§ 4.1, 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 1990 to January 1991, January to April 1991, May to October 2005, and August 2006 to February 2007. In April 2019, the Board, in pertinent part, denied a compensable rating for the Veteran’s left ear hearing loss, and granted service connection for right ear hearing loss. The Veteran appealed the denial of a compensable rating for left ear hearing loss to the United States Court of Appeals for Veterans Claims (Court). In December 2019, the Court granted a Joint Motion for Partial Remand (JMPR), vacating the portion of the April 2019 Board decision that denied a compensable rating for left ear hearing loss, and remanding the matter for action consistent with the December 2019 JMPR. The December 2019 JMPR notes that the April 2019 Board decision did not properly consider the fact that service connection for right ear hearing loss had been granted. In May 2020, the Board remanded the claim for a new audiological examination. In October 2020, the Board remanded the claim again after the August 2020 Supplemental Statement of the Case characterized the issue on appeal as involving an increased rating for left ear hearing loss rather than a bilateral hearing loss. The Board directed the RO to readjudicate the bilateral hearing loss claim. The has been substantial compliance with the Board’s remand directives and will now consider the claim on its merits. Entitlement to a compensable disability rating for bilateral hearing loss The Veteran believes that his bilateral hearing loss is worse than the noncompensable disability rating contemplates. Disability evaluations are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. 38 C.F.R. Part 4. The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. Ratings of hearing loss range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of speech discrimination tests combined with the average hearing threshold levels as measured by puretone audiometry tests in the frequencies 1000, 2000, 3000, and 4000 cycles per second. To rate the degree of disability for service-connected hearing loss, the Rating Schedule has established eleven auditory acuity levels, designated from level I, for essentially normal acuity, through level XI, for profound deafness. 38 C.F.R. § 4.85(h), Table VI. In order to establish entitlement to a compensable rating for hearing loss, it must be shown that certain minimum levels of the combination of the percentage of speech discrimination loss and average puretone decibel loss are met. The assignment of disability ratings for hearing impairment is derived by a mechanical application of the Rating Schedule to the numeric designations assigned after audiometric evaluations are rendered. The criteria for rating hearing impairment use controlled speech discrimination tests (Maryland CNC) together with the results of puretone audiometry tests. These results are then charted on Table VI, Table VIA, in exceptional cases as described in 38 C.F.R. § 4.86, and Table VII, as set out in the Rating Schedule. Table VIA will be used when the examiner certifies that use of the speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc. 38 C.F.R.§ 4.85(c). After carefully reviewing the evidence of record, the Board finds that the preponderance of the evidence is against entitlement to a compensable rating for bilateral hearing loss. The reasons follow. The Veteran was provided a VA examination in July 2015. During that examination, the Veteran’s puretone thresholds were noted as follows: HERTZ 1000 2000 3000 4000 RIGHT 65 55 65 75 LEFT 25 35 30 30 The July 2015 VA audiological examiner noted that the Veteran had a diagnosis of mixed hearing loss in both ears, and speech discrimination scores of 94 percent in the right ear and the left ear. The puretone thresholds are noted in the table above, with a puretone threshold average of 65 dB in the right ear and 30 dB in the left ear. A February 2017 VA medical treatment record shows that the Veteran had an audiology examination, where his word discrimination test was at 92 percent on the right and 96 percent on the left. The Veteran was provided another VA examination in May 2017. During that examination, the Veteran’s puretone thresholds were noted as follows: HERTZ 1000 2000 3000 4000 RIGHT 45 60 105 105 LEFT 30 35 35 40 The May 2017 VA audiological examiner noted that the Veteran had a diagnosis of mixed hearing loss in both ears, and speech discrimination scores of 94 percent in the right ear and 96 percent in the left ear. The puretone thresholds are noted in the table above, with a puretone threshold average of 78.75 dB in the right ear and 35 dB in the left ear. A February 2020 VA medical treatment record notes that the Veteran’s puretone thresholds were essentially stable since last audiologic evaluation in May 2017, except there was a 20 dB decrease at the 2000 Hz in the right ear. The Veteran was afforded another VA examination in June 2020. During that June 2020 VA Audiological Examination, the Veteran’s puretone thresholds were noted as follows: HERTZ 1000 2000 3000 4000 RIGHT 50 60 95 90 LEFT 15 25 30 35 The June 2020 VA audiological examiner noted that the Veteran had a diagnosis of mixed hearing loss in the right ear and sensorineural hearing loss in the left ear, with a speech discrimination score of 94 percent in both ears. The puretone thresholds average of 73.75 (dB) in the right ear and 26.25 in the left ear. As noted above, Table VI in 38 C.F.R. § 4.85 combines the puretone average and the speech discrimination scores to produce a numeric designation for each ear, which is inserted into Table VII in 38 C.F.R. § 4.85 to determine the correct disability level. The three audiological evaluations conducted during VA examinations establish that the Veteran’s bilateral hearing loss disability does not meet the criteria for a compensable rating. For example, the July 2015 VA audiological examination showed that the Veteran’s right ear had a puretone average of 65 dB with a speech discrimination score of 94 percent, and the left ear had a puretone average of 30 dB with speech discrimination score of 94 percent. This results in the Veteran’s right ear hearing loss having a numeric designation of II and the left ear hearing loss having a numeric designation of I. The intersection of numeric designations II and I on table VII establishes that the Veteran’s bilateral hearing loss is noncompensable disability rating. Furthermore, the May 2017 VA audiological examination showed that the Veteran’s right ear had a puretone average of 78.75 dB with a speech discrimination score of 94 percent, and the Veteran’s left ear had a puretone average of 35 dB with a speech discrimination score of 96 percent. This results in the Veteran’s right ear hearing loss having a numeric designation of II and left ear hearing loss having a numeric designation of I. The intersection of numeric designations II and I on Table VII establishes that the Veteran’s bilateral hearing loss is noncompensable disabling. Finally, the June 2020 VA audiological examination showed the Veteran’s right ear had a puretone average of 73.75 dB with a speech discrimination score of 94 percent, and the Veteran’s left ear had a puretone average of 26.25 dB with a speech discrimination score of 94 percent. This results in the Veteran’s right ear hearing loss having a numeric designation of II and left ear hearing loss having a numeric designation of I. The intersection of numeric designations II and I on Table VII establishes that the Veteran’s bilateral hearing loss is noncompensable disabling. The facts establish that entitlement to a compensable rating for bilateral hearing loss disability is not warranted. In the June 2018 VA Form 9, Appeal to the Board, the Veteran wrote that the results of his hearing test could not be accurate because of the loud, disruptive piercing ringing in his ears (tinnitus). He stated when he was sitting in a soundproof room with a headset covering his ears, the ringing was much more apparent and made it extremely difficult to distinguish from the beeps of the hearing test and his tinnitus in both ears. In the June 2020 VA examination report, the examiner wrote that the test results were not false positive or inconclusive. The examiner explained that the Veteran was not aware of a threshold technique that is used in order to assess hearing acuity. The examiner wrote that if he suspected that the Veteran exhibited signs of inconsistency in responses whether he was hearing the tone or the tinnitus, the examiner would have reinstructed the Veteran or made it possible for the Veteran to distinguish the puretone from his ongoing tinnitus. The examiner further explained that there are times when they are not able to get consistent or reliable responses, and the examiners approach the claimant in a way that their responses become more consistent. The examiner wrote if there is a significant discrepancy between the speech reception threshold and the puretone average, where the puretone average is much worse than the speech reception threshold, the examiner typically would instruct the claimant with a different approach. The examiner said there is usually not a problem in every cooperative claimant with getting valid puretone results in the presence of severe tinnitus. The Board notes that there is no indication that the Veteran’s results have been altered due to his tinnitus, and the Veteran has had consistent results throughout the appeal period. Therefore, the Board finds the results of the VA examinations from July 2015, May 2017, and June 2020 are probative in determining the level of severity of the Veteran’s bilateral hearing loss. The Veteran is competent to describe his hearing loss. However, to the extent that the Veteran asserts that he is entitled to a higher rating, such assertion does not change the outcome, as the assignment of disability ratings for hearing impairment is derived by a mechanical application of the Rating Schedule to the numeric designations assigned after audiometric evaluations are rendered. For all the reasons described above, the preponderance of the evidence is against a compensable rating for bilateral hearing loss. Thus, as the preponderance of the evidence is against the claim, there is no reasonable doubt to be resolved, and the claim for a higher rating is denied. 38 U.S.C. § 5107(b). A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Griffin, 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.