Citation Nr: 21003049 Decision Date: 01/19/21 Archive Date: 01/19/21 DOCKET NO. 17-02 476 DATE: January 19, 2021 ORDER Entitlement to a compensable rating for left ear hearing loss is denied. FINDING OF FACT The Veteran’s left ear hearing loss has been manifested with pure tones threshold averages and speech recognition corresponding to a noncompensable rating. CONCLUSION OF LAW The criteria for a compensable rating for left ear hearing loss were not met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.85, 4.86 Diagnostic Code (DC) 6100 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran honorably served on active duty in the United States Air Force from January 1975 to August 1977. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2015 rating decision issued by the Department of Veteran’s Affairs (VA), Agency of Original Jurisdiction (AOJ). In August 2019 the Veteran attended a videoconference hearing before the undersigned Veteran’s Law Judge (VLJ). At that hearing the Veteran indicated that his hearing in his left ear had worsened. In November 2019 the Board remanded for further development. The AOJ issued a Supplemental Statement of the Case (SSOC) in April 2020. Increased Rating Disability ratings are determined by the application of the VA’s Schedule for Rating Disabilities. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § Part 4. Ratings for service-connected disabilities are determined by comparing the Veteran’s symptoms with criteria listed in VA’s schedule for rating disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. 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. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Left Ear Hearing Loss The Veteran contends that he is entitled to a higher initial rating for his left ear hearing loss, which is currently assigned a noncompensable rating. In evaluating the extent of 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, 349 (1992). Hearing loss ratings range from noncompensable to 100 percent based on organic impairment of hearing acuity, as measured by controlled speech discrimination tests in conjunction with average hearing thresholds determined by puretone audiometric testing at frequencies of 1000, 2000, 3000 and 4000 cycles per second. “Puretone threshold average” is the sum of the puretone thresholds at 1000, 2000, 3000 and 4000 Hertz divided by four. This average is used in all cases (including those in § 4.86) to determine the Roman numeral designation for hearing impairment from Table VI or VIA. 38 C.F.R. § 4.85, DC 6100. The rating schedule establishes eleven auditory acuity levels, designated from Level I for essentially normal hearing acuity, through Level XI for profound deafness. 38 C.F.R. § 4.85. The horizontal rows 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 vertical columns in Table VI represent nine categories of decibel loss based on the puretone audiometry test. The Roman numeral designation is located at the point where the percentage of speech discrimination and puretone threshold average intersect. See 38 C.F.R. §§ 4.85, 4.86. The Roman numeral designation for each ear is then used to determine the current level of disability based upon a pre-designated schedule. Table VII in 38 C.F.R. § 4.85. If impaired hearing is service-connected in only one ear, in order to determine the percentage evaluation, from Table VII, the nonservice-connected ear will be assigned a Roman numeral designation of I. 38 C.F.R. § 4.85(f). The regulations provide that in cases of exceptional hearing loss, i.e. when the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more, the Roman numeral designation will be determined for hearing impairment, separately, from either Table VI or Table VIA, whichever results in the higher numeral. 38 C.F.R. § 4.86. A Roman numeral designation will also be determined from either Table VI or Table VIA, whichever results in the higher numeral, when the puretone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz. That numeral will then be elevated to the next higher Roman numeral. The Veteran underwent a VA examination in February 2017. The February 2017 VA examination revealed that the Veteran did have trouble hearing. The examination results for the Maryland CNC Word list speech recognition score and puretone thresholds, in decibels, were as follows: Feb 2017 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 35 30 35 35 33.75 92% LEFT 50 45 60 65 55 72% The average puretone thresholds for the left ear were 55. The average puretone thresholds for the right ear were 33.75. The VA examiner also conducted a Maryland CNC speech discrimination test which revealed speech recognition at 92 percent in the right ear and 72 percent in the left ear. The audiological findings translate to a level I hearing acuity for the right ear and a level V hearing acuity for the left ear under table VI. Applying these results to Table VII, a noncompensable disability rating is warranted. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. In January 2020, the Veteran underwent another VA examination. The January 2020 VA examination revealed that the Veteran did have trouble hearing. The examination results for the Maryland CNC Word list speech recognition score and puretone thresholds, in decibels, were as follows: Jan 2020 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 40 40 45 50 43.75 94% LEFT 60 65 70 70 66.25 68% The average puretone thresholds for the left ear were 66.25. The average puretone thresholds for the right ear were 43.75. The VA examiner also conducted a Maryland CNC speech discrimination test which revealed speech recognition at 94 percent in the right ear and 68 percent in the left ear. The audiological findings translate to a level I hearing acuity for the right ear and a level VI hearing acuity for the left ear under table VI. Applying these results to Table VII, a noncompensable disability rating is warranted. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. The January 2020 VA examiner noted that the Veteran’s hearing loss did have a functional impact on ordinary conditions of daily life, including ability to work. The examiner noted the Veteran reported difficulty hearing in a variety of situations. The Veteran submitted a private audiology report, conducted in July 2011 and received by VA in March 2015. The private audiology report did not provide sufficient information to determine whether a compensable disability rating was warranted. VA treatment records have also been reviewed. These medical records, however, do not contain any audiological findings or complaints that would entitle the Veteran to a higher rating for his hearing loss under 38 C.F.R. § 4.85 or 38 C.F.R. § 4.86. Based on the evidence above, the Board finds that the results of the audiometric testing fail to reflect that the Veteran’s hearing loss disability meets the criteria to warrant a compensable rating. While the Board takes note that the Veteran contends his hearing loss is even more severe than currently evaluated, the Board observes that the Veteran, while competent to report symptoms such as difficulty understanding conversation, injuries incurred and acoustic noise exposure during service, the Veteran is not competent to report impairment to his hearing acuity. The Veteran is not competent to determine if his hearing loss rises to the level of severity to warrant a higher evaluation under VA’s tables for rating hearing loss disabilities because such a determination requires medical expertise and training with the use of specialized testing in evaluating hearing impairment which he has not been shown to have. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Furthermore, disability ratings for hearing impairment are to be derived by mechanical application of the rating schedule to the numeric designations assigned based on objective audiometric test results. Thus, even after considering such contentions as to functional effects of the Veteran’s hearing loss disability, without medical evidence of hearing loss which merits higher evaluations, the Veteran’s condition is properly rated. Accordingly, based on the Veteran’s audiological examinations, the Board is compelled to conclude that the preponderance of the evidence is against entitlement to a compensable rating for bilateral hearing loss. Hart v. Mansfield, 21 Vet. App. 505 (2007). B. MULLINS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Hellina Y. Hailu, 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.