Citation Nr: 21062208 Decision Date: 10/06/21 Archive Date: 10/06/21 DOCKET NO. 17-33 157 DATE: October 6, 2021 ORDER Entitlement to a compensable rating for bilateral hearing loss is denied. FINDING OF FACT The Veteran's bilateral hearing loss has been productive of no more than Level I hearing acuity in each ear. CONCLUSION OF LAW The criteria for a compensable rating for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.85, Diagnostic Code 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from April 2007 to August 2007, and from October 2009 to September 2010, including service in Iraq from December 2009 to August 2010. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2014 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in January 2020. This matter was previously remanded by the Board in May 2020 and April 2021 decisions for further development. The Veteran previously asserted that service connection is warranted for his right ear hearing loss disability because it began in-service when he was involved in an IED explosion while serving overseas, in which he suffered multiple injuries to his back, head, and knees. See November 2014 Notice of Disagreement & June 2017 Form 9. The Veteran also asserted that his service-connected left ear hearing loss should be rated higher, as the disability has worsened, and he has "serious hearing issues in both ears." Id. In the May 2020 Board decision, the Board noted that the Veteran was currently rated at 0 percent for his left ear hearing loss, per a September 2014 rating decision. At his January 2020 Board hearing, the Veteran testified that he was given a positive nexus opinion as to etiology for his right ear hearing loss but did not meet the criteria in the exam; he stated the condition bilaterally has worsened since then. The Board remanded the claims to provide the Veteran an additional VA examination to ascertain the severity of his disability. Subsequent to the May 2020 BVA remand, the Veteran was issued a Supplemental Statement of the Case in August 2020 in which the claims were denied. The Veteran elected to return the case to the Board for further appellate consideration. See September 2020 Correspondence. In the April 2021 Board decision, the Board noted the Veteran was not provided a VA hearing loss examination subsequent to the May 2020 Board remand. Therefore, the claims were remanded to provide the Veteran a contemporaneous VA examination for his bilateral hearing loss. In an August 2021 rating decision, the Veteran was granted service connection for right ear hearing loss with an evaluation of 0 percent, effective August 3, 2021. The disability was combined with left ear hearing loss and the two conditions are now evaluated as bilateral hearing loss with a noncompensable evaluation. Increased Rating Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Entitlement to a compensable rating for bilateral hearing loss The Veteran's bilateral hearing loss has been assigned a noncompensable rating. For the following reasons, the Board finds that the criteria for a higher initial evaluation are not satisfied. Hearing loss is evaluated under 38 C.F.R. § 4.85, Diagnostic Code (DC) 6100. In evaluating service-connected hearing loss, disability ratings are derived from a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are performed. See 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, measured by puretone audiometric tests in the frequencies of 1,000, 2,000, 3,000 and 4,000 cycles per second. See 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. See Id. VA audiometric examinations are generally conducted using a controlled speech discrimination test together with the results of a puretone audiometry test. Id. Table VI in 38 C.F.R. § 4.85 is then used to determine the numeric designation of hearing impairment based on the puretone threshold average derived from the audiometry test, and from the results of the speech discrimination test. The horizontal rows in Table VI represent nine categories of the percentage of discrimination based on the controlled speech discrimination test. See Id. The vertical columns in Table VI represent nine categories of decibel loss based on the puretone audiometry test. See Id. The numeric designation of impaired hearing (Levels I through XI) is determined for each ear by intersecting the horizontal row corresponding to the percentage of discrimination and the vertical column corresponding to the puretone decibel loss. Id. The percentage evaluation is derived from Table VII in 38 C.F.R. § 4.85 by intersecting the vertical column corresponding to the numeric designation for the ear having the better hearing acuity (as determined by Table VI) and the horizontal row corresponding to the numeric designation level for the ear having 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. See Id. The preponderance of the evidence shows that the Veteran's bilateral hearing loss did not meet or more nearly approximate the criteria for a compensable rating. Subsequent to the April 2021 Board decision, the Veteran was afforded a VA examination for hearing loss in June 2021. Audiometric testing shows pure tone thresholds as follows: HERTZ 1000 2000 3000 4000 RIGHT 10 10 30 35 LEFT 20 65 60 60 Puretone threshold average is calculated as 21.25 in the right ear and 51.25 in the left ear. Speech discrimination scores were noted as 100 percent for the right ear and 92 percent for the left ear. Applying these values to Table VI of 38 C.F.R. § 4.85, yields a designation of Roman Numeral I for the left ear and a Roman Numeral I is also derived for the right ear. This is determined by the looking up the numeric designation of hearing impairment based on puretone threshold average and speech discrimination. The point where designations I and I intersect in Table VII yields a noncompensable rating. See Id., DC 6100. VA regulation also includes two provisions for evaluating certain patterns of hearing impairment that cannot always be accurately assessed under 38 C.F.R. § 4.85 because the speech discrimination test may not reflect the severity of communicative functioning experienced by those with these types of patterns. See 64 Fed. Reg. 25203 (May 11, 1999). First, under 38 C.F.R. § 4.86 (a), if puretone thresholds in each of the specified frequencies of 1000, 2000, 3000, and 4000 Hertz are 55 decibels or more, an evaluation will be based either on Table VI or Table VIa in 38 C.F.R. § 4.85, whichever results in a higher evaluation. Each ear will be evaluated separately. Id. This provision corrects for the fact that with a 55-decibel threshold level (the level at which speech becomes essentially inaudible) the high level of amplification needed to attempt to conduct a speech discrimination test would be painful to most people, and speech discrimination tests may therefore not be possible or reliable. See 64 Fed. Reg. 25209 (May 11, 1999). Because the Veteran's puretone thresholds were not 55 decibels or more at each of the specified frequencies, section 4.86(a) does not apply. Second, under 38 C.F.R. § 4.86(b), when the puretone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 hertz, the Roman numeral designation for hearing impairment will be chosen from either Table VI or Table VIa under 38 C.F.R. § 4.85, whichever results in the higher Roman numeral, and that numeral will then be elevated to the next higher numeral. This provision accounts for a pattern of hearing impairment that is an extreme handicap in the presence of any environmental noise, as a speech discrimination test conducted in a quiet room with amplification of sound does not always reflect the extent of impairment experienced in the ordinary environment. See 64 Fed. Reg. 25209 (May 11, 1999). Because the Veteran's puretone thresholds at 2000 Hertz were not 70 decibels or more in either ear section 4.86(b) does not apply. The Veteran was again afforded a VA examination to assess the severity of his bilateral hearing loss in August 2021. Audiometric testing from the August 2021 VA examination shows pure tone thresholds as follows: HERTZ 1000 2000 3000 4000 RIGHT 10 5 40 15 LEFT 20 40 45 50 Puretone threshold average is calculated as 18 in the right ear and 39 in the left ear. Speech discrimination scores were noted as 100 percent for the right ear and 94 percent for the left ear. Applying these values to Table VI of 38 C.F.R. § 4.85, yields a designation of Roman Numeral I for the left ear and a Roman Numeral I is also derived for the right ear. The point where designations I and I intersect in Table VII yields a noncompensable rating. See Id., DC 6100. Pursuant to the results of the VA examination in August 2021, the provisions of section 4.86(a) and 4.86(b) do not apply. The Board is very sympathetic to the Veteran. However, to the extent that VA's current rating schedule requires a significant degree of hearing loss (as measured by audiometric testing, to include speech recognition) before a Veteran can receive increased compensation, neither the Board nor the Court of Appeals for Veterans Claims itself has the power to change those requirements. See Wingard v. McDonald, 779 F.3d 1354, 1356 (Fed. Cir. 2015). In sum, the preponderance of the evidence is against the assignment of a compensable rating for bilateral hearing loss. Consequently, the benefit-of-the-doubt rule does not apply, and the appeal is denied. See 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Zarar Ahmed, Attorney Advisor 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.