Citation Nr: 21002793 Decision Date: 01/15/21 Archive Date: 01/15/21 DOCKET NO. 15-05 333 DATE: January 15, 2021 ORDER A compensable disability rating for bilateral hearing loss is denied. FINDING OF FACT The hearing acuity in both of the Veteran’s ears were shown to be productive of Level I hearing impairment throughout the period on appeal. CONCLUSION OF LAW The criteria for an initial compensable disability rating for bilateral hearing loss have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably in the United States Navy from January 1983 to January 1987. These matters come to the Board of Veterans’ Appeals (Board) on appeal from a March 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). This matter is being adjudicated under the legacy appellate framework. The Veteran testified at a personal hearing before the Board in April 2018, and a transcript of the hearing is of record. This matter was previously before the Board, and, in August 2018 and May 2020, the Board remanded this matter for further development. Further development in substantial compliance with the Board’s previous remand instructions has been completed. A compensable disability rating for bilateral hearing loss is denied. At issue is whether the Veteran is entitled to a compensable disability rating for bilateral hearing loss. The weight of the evidence indicates that the Veteran is not entitled to an increased disability rating. The Veteran first filed for service connection in July 2010, and, in May 2011, the RO granted service connection for hearing loss of the right ear and was assigned a noncompensable disability rating effective the date the claim was received. The Veteran filed an increased rating claim in November 2014, and, in March 2015, the RO denied the Veteran’s increased rating claim. The Veteran appealed. During the pendency of the appeal, the Veteran was granted bilateral hearing loss throughout the period on appeal. Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. In evaluating service-connected hearing loss, disability ratings are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are performed. Lendenmann v. Principi, 3 Vet. App. 345 (1992). Hearing loss disability evaluations 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 pure tone audiometric tests in the frequencies 1,000 cycles per second (Hz), 2,000 Hz, 3,000 Hz and 4,000 Hz. 38 C.F.R. § 4.85. Speech discrimination scores must be determined using a recording of the Maryland CNC word list. Id. See also Handbook of Standard Procedures and Best Practices for Audiology Compensation and Pension Examinations, p. 9. The rating schedule establishes 11 auditory acuity levels designated from Level I for essentially normal hearing acuity through Level XI for profound deafness. VA audiometric examinations are conducted using a controlled speech discrimination test together with the results of a pure tone audiometry test. The vertical lines in Table VI (in 38 C.F.R. § 4.85 ) represent nine categories of the percentage of discrimination based on the controlled speech discrimination test. The horizontal columns in Table VI represent nine categories of decibel loss based on the pure tone audiometry test. The numeric designation of impaired hearing (Levels I through XI) is determined for each ear by intersecting the vertical row appropriate for the percentage of discrimination and the horizontal column appropriate to the pure tone decibel loss. The Veteran’s treatment records indicate that he manifested bilateral hearing loss throughout the period on appeal, and that he was also provided hearing aids. The Veteran underwent a VA examination in February 2015. The Veteran’s pure tone thresholds were as follows in decibels: Hertz 500 1000 2000 3000 4000 Right 15 15 20 55 55 Left 15 10 20 30 35 The Veteran’s average pure tone threshold was 36 dB in the right ear and 24 dB in the left. The Veteran’s speech recognition scores were 98 percent bilaterally. The examiner indicated that the Veteran’s bilateral hearing loss impacts ordinary conditions of daily life, including his ability to work. Asked to describe the impact in the Veteran’s own words, the examiner recorded that the Veteran reported difficulty hearing his wife and that in background noise everything is muffled. The Veteran underwent private audiometric testing in March 2018. The Veteran’s speech discrimination scores were 100 percent bilaterally; although it is unclear if a recorded Maryland CNC list was used. The Veteran’s pure tone thresholds were displayed graphically in decibels; which the Board is competent is interpret. Kelly v. Brown, 7 Vet. App. 471 (1995). Hertz 500 1000 2000 3000 4000 Right 20 20 30 50 55 Left 15 15 25 35 35 The Veteran’s average pure tone thresholds were 38.75 dB in the right ear and in the left 27.5 dB. The Veteran testified at a personal hearing before the Board in April 2018 that he had difficulty hearing. See Transcript. The Veteran underwent a VA examination in October 2020. The Veteran’s pure tone thresholds were as follows in decibels: Hertz 500 1000 2000 3000 4000 Right 15 15 30 60 60 Left 10 15 25 45 40 The Veteran’s average pure tone threshold was 41.25 dB in the right ear and 31.25 dB in the left. The Veteran’s speech recognition scores were 100 percent bilaterally. The examiner indicated that the Veteran’s bilateral hearing loss impacts ordinary conditions of daily life, including his ability to work. Asked to describe the impact in the Veteran’s own words, the examiner recorded that the Veteran reported having difficulty hearing in the presence of background noise and having to repeatedly ask people to repeat themselves. The percentage evaluation assigned for hearing loss is derived by intersecting the vertical column of Table VII (in 38 C.F.R. § 4.85 ) appropriate for the numeric designation for the ear having the better hearing acuity and the horizontal row appropriate to the numeric designation level for the ear having the poorer hearing acuity. For example, if the better ear has a numeric designation Level of “V” and the poorer ear has a numeric designation Level of “VII,” the percentage evaluation is 30 percent. See 38 C.F.R. § 4.85. Using Table VI in 38 C.F.R. § 4.85, the pure tone average and speech recognition are combined to give each ear a numeric designation for use on Table VII to determine the correct disability level. In February 2015, the right ear had a pure tone average of 36 dB and a speech recognition score of 98 percent; therefore, the right ear warranted a designation of I. The left ear had a pure tone average of 24 dB and a speech recognition score of 98 percent; therefore, the left ear warranted a designation of I. Exceptional hearing loss was not shown by the examination. See 38 C.F.R. § 4.86. As a result, the percentage evaluation based on the findings of the February 2015 examination was noncompensable. In March 2018, the right ear had a pure tone average of 38.75 dB and a speech recognition score of 100 percent; therefore, the right ear warranted a designation of I. The left ear had a pure tone average of 27.5 dB and a speech recognition score of 98 percent; therefore, the left ear warranted a designation of I. Exceptional hearing loss was not shown by the examination. See 38 C.F.R. § 4.86. As a result, the percentage evaluation based on the findings of the March 2018 audiometric testing was noncompensable. In October 2020, the right ear had a pure tone average of 41.25 dB and a speech recognition score of 100 percent; therefore, the right ear warranted a designation of I. The left ear had a pure tone average of 31.25 dB and a speech recognition score of 98 percent; therefore, the left ear warranted a designation of I. Exceptional hearing loss was not shown by the examination. See 38 C.F.R. § 4.86. As a result, the percentage evaluation based on the findings of the October 2020 examination was noncompensable As noted above, VA examiner noted that the Veteran’s bilateral hearing loss impacted ordinary conditions of his daily life, including his ability to work. In Martinak v. Nicholson, the United States Court of Appeals for Veterans Claims held that in addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in his or her final report. 21 Vet. App. 447 (2007). Nevertheless, the Veteran has not described any functional effects which would provide a basis for a higher evaluation, because the Veterans reports mainly involved difficulty hearing. In making this determination, the Board must emphasize the requirement to that disability ratings based on hearing loss are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are performed. See Lendenmann. The weight of the evidence fails to demonstrate that the Veteran is entitled to an initial compensable disability for his bilateral hearing loss. Therefore, the evidence in this case is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. As such entitlement to an initial compensable rating for bilateral hearing loss is denied. The Board has considered whether or not a total disability rating due to individual unemployability (TDIU) has been raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board find that it has not, because – although the Veteran’s hearing loss impacted the Veteran’s ability to work – the evidence of record does   not suggest that the Veteran’s hearing loss prevented the Veteran from securing and maintaining substantially gainful employment. DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Seaton 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.