Citation Nr: 21004199 Decision Date: 01/26/21 Archive Date: 01/26/21 DOCKET NO. 16-61 929 DATE: January 26, 2021 ORDER Entitlement to an initial compensable rating for bilateral hearing loss is denied. FINDING OF FACT The Veteran’s service-connected bilateral hearing loss is not shown to have been manifested by more than Level II hearing impairment in the right ear and Level I hearing impairment in the left ear. CONCLUSION OF LAW The criteria for an initial compensable rating for bilateral hearing loss are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.383, 4.1, 4.85, 4.86, Diagnostic Code 6100.   REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1957 to May 1960, from August 1961 to September 1962, and from July 1965 to July 1968. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a February 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). A Board hearing was held before the undersigned in February 2018. A transcript of the hearing is of record. This matter was previously before the Board in April 2018 and July 2020 when it was remanded for further development. Bilateral Hearing Loss The Veteran generally contends he is entitled to an initial compensable rating for his bilateral hearing loss. Generally, disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The Rating Schedule is primarily a guide used in the evaluation of disabilities encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. A Veteran’s entire history is to be considered when making disability evaluations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Board acknowledges that with respect to a claim for an increased rating for an already service-connected disability, a Veteran may experience multiple distinct degrees of disability that might result in different levels of compensation. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). The following analysis is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. In evaluating hearing loss, disability ratings are derived by a mechanical application of the Rating Schedule to the numeric designations assigned after audiometric evaluations are rendered. 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 (Maryland CNC) in conjunction with the average hearing threshold, as measured by pure tone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 Hertz cycles per second (Hertz or Hz). 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 percentage evaluation is found from Table VII (in 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.   Under 38 C.F.R. § 4.86, which addresses exceptional patterns of hearing impairment, when the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hz) is 55 decibels or more, the rating specialist will determine the numeric designation Level for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86(a). When the average puretone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hz, the rating specialist will determine the numeric designation Level 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 level. Each ear will be evaluated separately. 38 C.F.R. § 4.86(b). Turning to the evidence in this case, a review of the record reflects that the Veteran underwent a private audiological evaluation in January 2009. However, the audiometric chart reflects that the Veteran’s hearing was not tested at 3000 Hz. Consequently, the evaluation is not adequate for rating purposes and will not be discussed further. See 38 C.F.R. § 4.85. In September 2012, the Veteran underwent VA audiological testing, which revealed puretone thresholds, in decibels, as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 25 35 45 45 38 LEFT 20 30 40 50 35   However, speech discrimination testing conducted during this evaluation was not completed using the Maryland CNC word list, so the audiometry results are inadequate for rating purposes. See 38 C.F.R. § 4.85(a). Rating based solely on the puretone thresholds is inapplicable as there is no indication from the audiometry report that speech discrimination testing using the Maryland CNC word list was not appropriate due to such reasons as language difficulties or inconsistent speech discrimination scores. In addition, the results of the puretone thresholds fail to qualify as an exceptional pattern of hearing impairment under 38 C.F.R. § 4.86, as the puretone thresholds at 1000, 2000, 3000, and 4000 Hertz were not 55 decibels or more and the Veteran’s bilateral hearing loss was not shown to have both a puretone threshold at 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz. In December 2013, the Veteran underwent a VA examination which revealed puretone thresholds, in decibels, as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 25 40 45 45 39 LEFT 20 35 40 60 39 The Veteran’s Maryland CNC speech discrimination test revealed speech recognition ability of 98 percent in the right ear and 96 percent in the left ear. Application of the December 2013 pure tone threshold average levels and speech recognition ability (percentage of discrimination) using Table VI results in Roman Numeral I in both ears. When these numeric designation Levels are combined in Table VII, they indicate a noncompensable rating should be assigned.   Based on the results of the December 2013 VA audiological evaluation, the Veteran’s bilateral hearing loss fails to qualify as an exceptional pattern of hearing impairment under 38 C.F.R. § 4.86, as the puretone thresholds at 1000, 2000, 3000, and 4000 Hertz in the right ear and at 1000, 2000, and 3000 Hertz in the left ear were not 55 decibels or more and the Veteran’s bilateral hearing loss was not shown to have both a puretone threshold at 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz. In March 2016 and March 2018, the Veteran underwent additional VA audiological testing. The March 2016 evaluation revealed pure tone thresholds, in decibels, as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 40 45 55 60 50 LEFT 35 35 55 65 48 The March 2018 evaluation revealed pure tone thresholds, in decibels, as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 45 55 70 80 63 LEFT 40 40 70 80 58   However, speech discrimination testing conducted during these evaluations was not completed using the Maryland CNC word list, so the audiometry results are inadequate for rating purposes. See 38 C.F.R. § 4.85(a). Rating based solely on the puretone thresholds is inapplicable as there is no indication from the audiometry report that speech discrimination testing using the Maryland CNC word list was not appropriate due to such reasons as language difficulties or inconsistent speech discrimination scores. In addition, the results of the puretone thresholds fail to qualify as an exceptional pattern of hearing impairment under 38 C.F.R. § 4.86, as the puretone thresholds at 1000, 2000, 3000, and 4000 Hertz were not all 55 decibels or more and the Veteran’s bilateral hearing loss was not shown to have both a puretone threshold at 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz. In May 2018, the Veteran underwent another private hearing evaluation. Audiometric results of the evaluation are in the form of an audiometric chart, as opposed to a table. However, the process of reading the raw data from the chart used to report it requires no specialized medical training or knowledge; no interpretation is needed to transcribe the numbers from one form to another. While the United States Court of Appeals for Veterans Claims (Court) may not do so, citing such as “fact finding,” the Board, as triers of fact, are entitled to do so. Kelly v. Brown, 7 Vet. App. 471 (1995). In the role as fact finder, the Board has reviewed the graphical findings of the May 2018 private audiological report and determined that the results are as follows, with pure tone thresholds in decibels: HERTZ 1000 2000 3000 4000 Average RIGHT 45 55 65 65 58 LEFT 40 40 55 65 50   The Veteran’s Maryland CNC speech discrimination test revealed speech recognition ability of 100 percent in the right ear and 92 percent in the left ear. Application of the May 2018 pure tone threshold average levels and speech recognition ability (percentage of discrimination) using Table VI results in Roman Numeral II in the right ear and Roman Numeral I in the left ear. When these numeric designation Levels are combined in Table VII, they indicate a noncompensable rating should be assigned. Based on the results of the May 2018 private audiological evaluation, the Veteran’s bilateral hearing loss fails to qualify as an exceptional pattern of hearing impairment under 38 C.F.R. § 4.86, as the puretone thresholds at 1000, 2000, 3000, and 4000 Hertz were not all 55 decibels or more and the Veteran’s bilateral hearing loss was not shown to have both a puretone threshold at 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz. Lastly, the Veteran underwent an additional VA examination in January 2019, which revealed pure tone thresholds, in decibels, as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 30 40 55 60 46 LEFT 30 30 55 60 44 The Veteran’s Maryland CNC speech discrimination test revealed speech recognition ability of 88 percent in the right ear and 92 percent in the left ear. Application of the January 2019 pure tone threshold average levels and speech recognition ability (percentage of discrimination) using Table VI results in Roman Numeral II in the right ear and Roman Numeral I in the left ear. When these numeric designation Levels are combined in Table VII, they indicate a noncompensable rating should be assigned. Based on the results of the January 2019 VA examination, the Veteran’s bilateral hearing loss fails to qualify as an exceptional pattern of hearing impairment under 38 C.F.R. § 4.86, as the puretone thresholds at 1000, 2000, 3000, and 4000 Hertz were not 55 decibels or more and the Veteran’s bilateral hearing loss was not shown to have both a puretone threshold at 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz. In sum, the Board finds the January 2009, September 2012, March 2016, and March 2018 audiological tests inadequate for rating purposes; thus, the results of those tests cannot be considered in determining whether the Veteran is entitled to an initial compensable rating for his service-connected bilateral hearing loss. Based on the results of the December 2013 VA, May 2018 private, and January 2019 VA audiological tests, the Board concludes the Veteran is not entitled to an initial compensable rating for his bilateral hearing loss. The Board acknowledges the functional impacts of the Veteran’s hearing loss on his daily life, including difficulty hearing the television and phone at normal listening levels and difficulty hearing in conversations. However, as noted above, the rating for hearing impairment is derived from a mechanical formula based on levels of puretone threshold average and speech discrimination (which are measured by the type of audiometric testing mandated under 38 C.F.R. § 4.85), and such formula has been accepted to account for accompanying functional impairment. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (holding that “the rating criteria for hearing loss contemplate the functional effects of difficulty hearing and understanding speech”). The Veteran’s main complaint is reduced hearing acuity and clarity, which is what is contemplated in the rating assigned. See Rossy v. Shulkin, 29 Vet. App. 142, 145 (2017).   Accordingly, the Board finds that an initial compensable rating is not warranted for the Veteran’s bilateral hearing loss. 38 C.F.R. §§ 4.85, Code 6100, 4.86. M. SORISIO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Jiggetts 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.