Citation Nr: 21061418 Decision Date: 10/04/21 Archive Date: 10/04/21 DOCKET NO. 14-36 284 DATE: October 4, 2021 ORDER Entitlement to a compensable initial rating for bilateral hearing loss is denied. FINDING OF FACT The Veteran's bilateral hearing loss has been manifested by no worse than Level II hearing loss in the left and right ears. CONCLUSION OF LAW The criteria for a compensable disability rating for bilateral hearing loss have not been met for the period on appeal. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10, 4.85, 4.86; Diagnostic Code (DC) 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served active duty in the Army from August 1966 to August 1968. This matter is before the Board of Veterans' Appeals (Board) on appeal of an April 2018 rating decision that assigned an initial noncompensable evaluation for bilateral hearing loss, effective August 19, 2013. At a virtual Board hearing in January 2021, the Veteran testified that his hearing had worsened since the time of his last VA audiological examination. This matter was remanded in February 2021 and March 2021 to provide the Veteran with a VA audiological examination to assess the Veteran's current audiological functioning. The Veteran underwent an audiological examination in July 2021.There has been substantial compliance with the remand directives and the matter is again before the Board. See Stegall v. West, 11 Vet. App. 268 (1998). Disability ratings are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). The percentage ratings in the Rating Schedule represent the average impairment in earning capacity resulting from service-connected diseases and injuries and their residual conditions in civilian occupations. The percentage ratings are generally adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the disability. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of a veteran. 38 C.F.R. § 4.3. Hearing loss is evaluated under 38 C.F.R. § 4.85, DC 6100 using a mechanical formula. Disability ratings for service-connected hearing loss range from noncompensable to 100 percent and are determined by inserting numbers, which are assigned based on the results of audiometric evaluations, into Table VI in DC 6100. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). The Rating Schedule establishes eleven Roman numeral auditory acuity levels that range from Level I (essentially normal hearing acuity) to Level XI (profound deafness). Id. The level of auditory acuity is based on the average puretone threshold (derived from the results of puretone audiometric tests in the frequencies 1000, 2000, 3000, and 4000 Hertz) and organic impairment of hearing acuity (measured by controlled speech discrimination test; Maryland CNC). See 38 C.F.R. § 4.85, Table VI. The columns in Table VI represent nine categories of decibel loss as measured by puretone threshold averages. The rows in Table VI represent nine categories of organic impairment of hearing acuity as measured by speech discrimination tests. The numeric designation of impaired hearing (Levels I through XI) is determined for each ear by intersecting the column that represents the relevant puretone threshold average with the row that represents the relevant speech discrimination test result. Id. Exceptional patterns of hearing impairment are provided for in 38 C.F.R. § 4.86. When the puretone threshold 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 is evaluated separately. 38 C.F.R. § 4.86(a). However, Table VIA will be used when the examiner certifies that use of the speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc. 38 C.F.R.§ 4.85(c). The percentage evaluation is derived from Table VII in 38 C.F.R. § 4.85 by intersecting the row that corresponds to the numeric designation for the ear with better hearing acuity (as determined by Table VI) and the column that corresponds to the numeric designation level for the ear with the poorer hearing acuity (as determined by Table VI). 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. Id. In cases where only one ear is service-connected for hearing loss, the nonservice-connected ear is assigned Roman numeral I for purposes of determining the appropriate rating according to Table VII. See 38 C.F.R. § 4.85(f). The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against the award of a compensable rating for the Veteran's bilateral hearing loss disability. The reasons follow. The Veteran submitted a private audiogram completed in April 2013, which showed he had mild to severe sensorineural hearing loss, bilaterally. The audiogram showed the following puretone thresholds, in decibels, obtained for the frequencies of interest in the bilateral ears, in Hertz (Hz): 1000 Hz 2000 Hz 3000 Hz 4000 Hz Average RIGHT 35 35 45 55 42.5 LEFT 40 45 50 65 50 While this examination revealed an existing bilateral hearing disability, no speech discrimination scores were provided. However, when paired with the speech discrimination scores of record documented in subsequent VA examinations, discussed in detail below, this audiometric testing would not result in any worse than Level I hearing loss in either ear, warranting a noncompensable disability rating. The Veteran attended a consultation for hearing aids in September 2014 and was issued hearing aids in October 2014. Treatment notes from June 2015 indicated the Veteran to have no hearing difficulties. The Veteran submitted additional private audiometric testing in December 2015. The private examiner stated that the Veteran has hearing loss extending from mild to almost the profound range. The examination report showed the following puretone thresholds, in decibels, obtained for the frequencies of interest in the bilateral ears, in Hertz (Hz): 1000 Hz 2000 Hz 3000 Hz 4000 Hz Average RIGHT 40 45 60 85 57.5 LEFT 35 40 65 70 52.5 Again, no speech discrimination scores were provided along with the Veteran's private audiometric findings. However, when paired with the speech discrimination scores of record documented in subsequent VA examinations, discussed in detail below, this audiometric testing would not result in any worse than Level II hearing loss in either ear, warranting a noncompensable disability rating. The Veteran sought re-evaluation of his hearing disability through VA in March 2017. He reported a subjective decrease in hearing since his previous testing. On examination, the Veteran recorded speech discrimination scores of 92 percent in the right ear and 96 percent in the left ear. The examination report showed the following puretone thresholds, in decibels, obtained for the frequencies of interest in the bilateral ears, in Hertz (Hz): 1000 Hz 2000 Hz 3000 Hz 4000 Hz Average RIGHT 35 40 55 75 51.25 LEFT 30 30 40 60 40 The treating audiologist stated that the Veteran's puretone thresholds were stable since his last examination. While this examination did not indicate whether Maryland CNC speech discrimination scores were used, the results were not indicative of hearing loss that would warrant a compensable rating. Using these audiogram scores, Table VI assigns the Veteran a Level I hearing impairment designation in each ear. When applied to Table VII, this continues to result in a noncompensable disability rating for the Veteran's bilateral hearing loss. The Veteran underwent a VA audiological examination in October 2018. The Veteran recorded Maryland CNC speech discrimination scores of 94 percent in the right ear and 98 percent in the left ear. The examination report showed the following puretone thresholds, in decibels, obtained for the frequencies of interest in the bilateral ears, in Hertz (Hz): 1000 Hz 2000 Hz 3000 Hz 4000 Hz Average RIGHT 40 50 50 75 54 LEFT 35 40 45 55 44 These results were found to be valid and appropriate for ratings purposes. The Veteran was assessed with bilateral sensorineural hearing loss. As to the functional impact of the Veteran's condition, the Veteran reported that he has difficulty hearing speech and has difficulty hearing someone speaking to him from another room. He stated that he feels people always have to yell at him. Based on the audiogram results, Table VI assigns the Veteran a Level I hearing impairment designation in each ear. When applied to Table VII, this results in a noncompensable disability rating for the Veteran's bilateral hearing loss. The Veteran was self-referred for a follow-up audiological examination and hearing aid evaluation in January 2020. He continued to report difficulty hearing and stated that he needs his hearing aids to be louder. The Veteran's hearing aids were checked and cleaned, and were determined to be in good working order. The Veteran reported that the Veteran was pleased with the sound quality of the hearing aids after the cleaning, so no programming adjustments were made. On examination, the Veteran recorded speech discrimination scores of 92 percent in the right ear and 96 percent in the left ear. The examination report showed the following puretone thresholds, in decibels, obtained for the frequencies of interest in the bilateral ear, in Hertz (Hz): 1000 Hz 2000 Hz 3000 Hz 4000 Hz Average RIGHT 40 45 55 75 53.75 LEFT 35 40 50 55 45 The treating audiologist stated that the Veteran's hearing acuity had remained essentially unchanged since his last evaluation in October 2018. Although this self-referred audiological assessment did not indicate whether Maryland CNC speech discrimination scores were used, the results were not indicative of hearing loss that would warrant a compensable rating. When applied to Table VI, the Veteran is assigned a Level I hearing impairment designation in each ear. When applied to Table VII, this continues to result in a noncompensable disability rating for the Veteran's bilateral hearing loss. Treatment records in November 2020 show that the Veteran did not believe his hearing had changed since January 2020. On consultation in December 2020, the Veteran reported that he was pleased with his hearing aid performance. As mentioned, the Veteran reported that his hearing loss had worsened at his January 2021 Board hearing. Subsequent to the February 2021 and March 2021 Board remands, the Veteran underwent another VA audiological examination in July 2021. The Veteran recorded Maryland CNC speech discrimination scores of 96 percent in the right ear and 96 percent in the left ear. The examination report showed the following puretone thresholds, in decibels, obtained for the frequencies of interest in the bilateral ear, in Hertz (Hz): 1000 Hz 2000 Hz 3000 Hz 4000 Hz Average RIGHT 45 55 60 75 58.75 LEFT 40 45 55 65 51.25 These results were found to be valid and appropriate for ratings purposes. The Veteran was assessed with bilateral sensorineural hearing loss. As to the functional impact of the Veteran's condition, the Veteran reported that he has difficulty understanding speech. Based on the audiogram results, Table VI assigns the Veteran a Level II hearing impairment in the right ear and a Level I hearing impairment in the left ear. When applied to Table VII, this results in a noncompensable disability rating for the Veteran's bilateral hearing loss. Based upon the above, the recorded objective audiometric results of record do not warrant the assignment of an increased compensable disability rating for the Veteran's bilateral hearing loss disability. The Board has also considered the additional evidence of record within the claims file; however, there are no objective audiometric test results to be considered in the context of the Veteran's increased rating claim for the service-connected bilateral hearing loss disability during the relevant period that support the award of a compensable disability rating. As discussed above, disability ratings for hearing loss are determined by a mechanical application of the Rating Schedule to the numeric designations assigned based upon audiometric test results. The Board has also considered the lay evidence of record, which is probative insofar as it reports observable symptoms, such as difficulty hearing. However, to the extent that the Veteran's lay statements assert that his service-connected hearing loss is more severe than his current noncompensable disability rating, such statements are of lessened probative value than the objective evidence of record discussed herein, which permit the required mechanical application of the Rating Schedule to numeric designations assigned based upon audiometric test results. Based on the foregoing, the Board concludes that the preponderance of the evidence is against the Veteran's claim of entitlement to an increased compensable disability rating for the service-connected bilateral hearing loss disability. As the preponderance of the evidence is against the Veteran's claim, there is no reasonable doubt to be resolved, and the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. A. P. SIMPSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Wonderling, 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.