Citation Nr: 21003534 Decision Date: 01/21/21 Archive Date: 01/21/21 DOCKET NO. 11-00 162A DATE: January 21, 2021 ORDER Entitlement to a compensable rating for bilateral hearing loss prior to December 3, 2019 and to a rating in excess of 40 percent from that date is denied. FINDING OF FACT 1. At no time, from March 16, 2010 to December 2, 2019, is the Veteran’s hearing acuity shown to have been worse than Level II in the right ear or worse than Level III in the left. 2. At no time, from December 3, 2019, is the Veteran’s hearing acuity shown to have be worse than Level VI in the right ear or worse than Level VIII in the left. CONCLUSION OF LAW A compensable rating for bilateral hearing loss prior to December 3, 2019 and a rating in excess of 40 percent from that date are not warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.85, 4.86 Diagnostic Code (Code) 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant is a Veteran who served on active duty from August 1979 to August 1985. This matter is before the Board of Veterans’ Appeals (Board) on appeal of a September 2010 Department of Veterans Affairs (VA) rating decision. In May 2014, the Board reopened a claim of service connection for right ear hearing loss. In May 2014, June 2015, and October 2019, the claims of service connection for right ear hearing loss and for an increased rating for left ear hearing loss were remanded for development. An August 2020 rating decision granted service connection for right ear hearing loss and (as left ear hearing loss was already service -connected), rated the disability as bilateral, assigning staged ratings of 0 percent from March 16, 2010, and 40 percent from December 3, 2019. Ratings for hearing loss disability are derived from Table VII of 38 C.F.R. § 4.85 by a mechanical application of the rating schedule to numeric designations assigned after audiometric evaluations are performed. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). The numeric designations correspond to eleven auditory acuity levels, indicated by Roman numerals, where Level I denotes essentially normal acuity and Level XI denotes profound deafness. The assignment of the appropriate numeric level is based on the results of controlled speech discrimination tests in combination with average hearing threshold. The average threshold is obtained from puretone audiometry in the frequencies of 1000, 2000, 3000, and 4000 Hertz. 38 C.F.R. § 4.85. Rating specialists use either Table VI or VIA of 38 C.F.R. § 4.85 to determine the correct Roman numeral designation for the level of hearing acuity of each ear. Table VIA is used when speech discrimination tests are inappropriate due to language difficulties, inconsistent speech discrimination scores, etc., or where there is an exceptional pattern of hearing loss (as defined in 38 C.F.R. § 4.86). One such pattern occurs when the puretone threshold at each of the four specified frequencies is 55 decibels or more; another when the puretone threshold at 1000 Hertz is 30 decibels or less and the puretone threshold at 2000 Hertz is 70 decibels or more. 38 C.F.R. § 4.86. On May 2010 VA audiological examination, audiometry revealed that puretone thresholds, in decibels were: HERTZ 1000 2000 3000 4000 Average Right 20 20 25 35 25 Left 30 40 50 55 44 Speech audiometry revealed speech recognition ability of 88 percent in the right ear and 82 percent in the left. The Veteran reported hearing difficulty. In his VA Form 9, the Veteran reported he has to ask people to repeat themselves, does not understand what people say and pretends that he does understand, and has difficulty hearing the phone and television. At the July 2012 hearing, the Veteran testified he confuses words and cannot understand speech. He related that he has to ask people to repeat themselves when in a noisy environment, and cannot work where there are noisy backgrounds. He related that hearing aids help a little, and that his hearing is worsening as he gets older. On October 2018 VA audiological examination, audiometry revealed that puretone thresholds were: HERTZ 1000 2000-3000-4000 Average Right 30 40 40 45 39 Left 50 65 70 65 63 Speech audiometry revealed speech recognition ability of 88 percent in the right ear and 84 percent in the left. The examiner found the puretone test results and speech discrimination scores valid for rating purposes. The Veteran reported he cannot make out certain voices or certain sounds without hearing aids, he related he has to ask speakers to repeat themselves. The examiner opined that with hearing aids, the Veteran can function in an occupational environment (but preferably without hazardous level noise). On December 3, 2019 VA audiological examination, audiometry revealed that puretone thresholds were: HERTZ 1000 2000 3000 4000 Average Right 40 45 55 60 50 Left 50 60 70 70 63 Speech audiometry revealed speech recognition ability of 64 percent in the right ear and 50 percent in the left. The examiner found the puretone test results and speech discrimination scores valid for rating purposes. The Veteran reported he cannot hear or understand certain words. Applying the results of the May 2010 VA examination to Table VI shows that the Veteran had Level II hearing acuity in the right ear and Level III acuity in the left. Under Table VII, such hearing acuity warrants a 0 percent rating. The findings do not reflect an exceptional pattern of hearing loss, nor did the examiner indicate that speech recognition scores were unreliable; therefore, Table VIA is not for application Applying the results of the October 2018 VA examination to Table VI shows that the Veteran had Level II hearing acuity in the right ear and Level III acuity in the left. Under Table VII, such hearing acuity warrants a 0 percent rating. The findings do not reflect an exceptional pattern of hearing loss, nor did the examiner indicate that speech recognition scores were unreliable; therefore, Table VIA is not for application Applying the results of the December 2019 VA examination to Table VI shows that the Veteran had Level VI hearing acuity in the right ear and Level VIII acuity in the left. Under Table VII, such hearing acuity warrants a 40 percent rating. The findings do not reflect an exceptional pattern of hearing loss, nor did the examiner indicate that speech recognition scores were unreliable; therefore, Table VIA is not for application. The record does not include reports of any further adequate audiometry during the period under consideration. As the assignment of a disability rating for hearing impairment is derived by mechanical application of the rating schedule to the numeric designations assigned after audiometry evaluations are rendered, there is no doubt as to the proper evaluation to be assigned. Lendenmann, 3 Vet. App. 345; 38 C.F.R. § 4.85, Tables VI-VII, Code 6100. The findings on official audiometry on May 2010 and October 2018 VA examinations fall squarely within the parameters for a 0 percent rating, and that rating encompasses the Veteran’s self-reported functional impairment (difficulty hearing conversations and words, especially in noisy environments and without the use of his hearing aids), which the Board finds no reason to question. Accordingly, a compensable rating for bilateral hearing loss prior to December 3, 2019 is clearly not warranted. The findings on official audiometry on December 2019 VA examination fall squarely within the parameters for a 40 percent rating, and that rating encompasses the Veteran’s self-reported functional impairment (inability to fully understand speech). The AOJ has assigned a 40 percent rating for the bilateral hearing loss from December 3, 2019 and a rating in excess of 40 percent for bilateral hearing loss from that date is not warranted. GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Naumovich, 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.