Citation Nr: 21004165 Decision Date: 01/26/21 Archive Date: 01/26/21 DOCKET NO. 18-10 540 DATE: January 26, 2021 ORDER Entitlement to a rating in excess of 30 percent for bilateral hearing loss disability is denied. FINDING OF FACT During the period on appeal the Veteran’s bilateral hearing loss disability is manifest by no more than Level VI hearing in the right ear and Level V hearing in the left ear. CONCLUSION OF LAW The criteria for a rating in excess of 30 percent for bilateral hearing loss disability have not been met. 38 U.S.C. §§ 1155; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1954 to September 1958. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2015 decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran requested a hearing before a Veterans Law Judge in the February 2018 VA Form 9. A review of the file indicates that the Veteran submitted a written request to withdraw the hearing on December 22, 2020. Thus, the hearing request is deemed withdrawn and the Board will proceed with adjudication of the Veteran’s claim. 38 C.F.R. § 20.704 (e). 1. Rating for bilateral hearing loss disability. The Veteran seeks a higher rating for his bilateral hearing loss disability, which is currently evaluated as 30 percent disabling under 38 C.F.R. § 4.85. 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, 349 (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 and as measured by Puretone audiometric tests in the frequencies 1000, 2000, 3000, and 4000 cycles per second. 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 (Maryland CNC) together with the results of a Puretone audiometry test. The vertical lines in Table VI (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 Puretone 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 Puretone decibel loss. The percentage evaluation is found from Table VII (38 C.F.R. § 4.85) by intersecting the vertical column 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. The provisions of 38 C.F.R. § 4.86 (a) provide that when the Puretone thresholds at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more, 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. Each ear will be evaluated separately. The provisions of 38 C.F.R. § 4.86 (b) provide that when the Puretone threshold is 30 dB or less at 1000 hertz, and 70 dB 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. That numeral will then be elevated to the next higher Roman numeral. Each ear will be evaluated separately. As will be explained below, neither section 4.86 (a) nor 4.86 (b) are applicable.   At a December 2010 VA audiological examination, Puretone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 35 70 85 105 LEFT 35 70 80 95 The Puretone threshold average was 74 decibels for the right ear and 70 decibels for the left ear. Speech discrimination scores using the Maryland CNC word test were 64 percent for the right ear and 74 percent for the left ear. The Board granted service connection for bilateral hearing loss disability in an October 2013 decision. Following the Board’s decision, the Regional Office assigned a 30 percent rating based on the Puretone thresholds and speech discrimination scores in the October 2010 VA examination. In October 2014 the Veteran filed a VA Form 21-526b Supplemental Claim for Compensation seeking a higher rating for bilateral hearing loss. He was provided a VA audiological examination in February 2015, but the examiner determined the test results are invalid and unreliable, and therefore were not reported. The claim was denied in a March 2015 rating decision.   The Veteran filed the current increased rating claim in April 2015. He was provided a VA audiological examination in July 2015 and Puretone thresholds, in decibels, were as follows” HERTZ 1000 2000 3000 4000 RIGHT 45 70 80 105 LEFT 45 65 75 105 The average Puretone threshold for the 1000, 2000, 3000, and 4000 Hertz frequencies was 75 decibels for the right ear and 72.5 decibels for the left ear. Speech discrimination scores using the Maryland CNC word test were 74 percent for the right ear and 78 percent for the left ear. These results equate to a 20 percent rating after applying the criteria and appropriate Tables in 38 C.F.R. § 4.85.   The Veteran submitted a private audiologic evaluation dated October 2015. Puretone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 45 65 75 100 LEFT 35 65 80 110 The average Puretone threshold for the 1000, 2000, 3000, and 4000 Hertz frequencies was 71.25 decibels for the right ear and 72.5 decibels for the left ear. Speech discrimination scores were 68 percent for the right ear and 76 percent for the left ear. The examiner noted the use of the Word Recognition Score, rather than Maryland CNC. An examination for hearing impairment for VA purposes must include a Maryland CNC controlled speech discrimination test. See 38 C.F.R. § 4.85(a). The October 2015 audiogram is not valid for VA rating purposes. He was provided another VA audiological examination in November 2017. Puretone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 50 70 80 105 LEFT 45 70 80 100 The average Puretone threshold for the 1000, 2000, 3000, and 4000 Hertz frequencies was 76.25 decibels for the right ear and 73.75 decibels for the left ear. Speech discrimination scores using the Maryland CNC word test were 68 percent for the right ear and 76 percent for the left ear. These results equate to a 20 percent rating after applying the criteria and appropriate Tables in 38 C.F.R. § 4.85. Using the criteria contained in 38 C.F.R. § 4.85, the usable examinations of record show that during the period on appeal the Veteran has had, at worst, a numeric designation of Level VI for his right ear and Level V for his left ear. These numeric designations coincide with a 20 percent rating for bilateral hearing loss. See 38 C.F.R. § 4.85, Table VII. There is no evidence inconsistent with the findings of the examinations reported above. None of the audiograms of record reveal an exceptional pattern of hearing loss. The Puretone thresholds at 1000, 2000, 3000, and 4000 Hertz have not each been shown to be above 55 decibels. VA examinations show the Puretone thresholds at 1000 Hertz have been 30 decibels of higher in each ear, the threshold at 2000 Hertz. A rating in excess of 30 percent for the Veteran’s service-connected bilateral hearing loss disability is not warranted. The criteria set out by VA for a 40 percent or greater rating have not been met or approximated at any time. The Veteran has submitted statements relating to the functional impact of his hearing loss, and last reported that his hearing had worsened in the September 2015 Notice of Disagreement. However, subsequent VA examination in November 2017 revealed Level VI hearing in the right ear and Level V hearing in the left ear, equating to a 20 percent rating. The documented examinations show no objective support for a rating in excess of 30 percent. Audiologic evaluations reflect that his hearing loss does not reach the level of disability contemplated by a 40 percent rating or greater. Assignment of a schedular disability rating for hearing impairment is derived by a mechanical application of the rating schedule to the numeric designation assigned after valid audiometry results are obtained. Hence, the Board has no discretion in this matter and must predicate its determination based on the results of the audiology studies of record. Lendenmann, 3 Vet. App. at 349. For the reasons outlined above, the preponderance of the evidence is against the claim for an increased rating for bilateral hearing loss disabilities. The claim must be denied. H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Morse 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.