Citation Nr: 21063846 Decision Date: 10/18/21 Archive Date: 10/18/21 DOCKET NO. 12-35 884 DATE: October 18, 2021 ORDER Entitlement to a compensable rating for bilateral hearing loss is denied. FINDING OF FACT Throughout the appeal period, the Veteran had, at worst, Level II hearing acuity in the right ear and Level II hearing acuity in the left ear; the rating criteria contemplate the Veteran's hearing symptoms. 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, 4.7, 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from February 1976 to July 1983, and from October 1985 to May 1997, including service in the Southwest Asia theater of operations from January 1991 to April 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge in an October 2016 video conference hearing. This case was previously before the Board in March 2018, January 2020 and February 2021 when it was remanded for additional development. 1. Entitlement to a compensable rating for bilateral hearing loss. The VA Schedule for Rating Disabilities (Rating Schedule) provides a table for rating purposes (Table VI) to determine a Roman numeral designation (I through XI) for hearing impairment, based on testing (by a state-licensed audiologist) including Puretone thresholds and speech discrimination (Maryland CNC test). See 38 C.F.R. § 4.85. Where there is an exceptional pattern of hearing impairment (as defined in 38 C.F.R. § 4.86), the rating may be based solely on puretone threshold testing. See 38 C.F.R. § 4.85, Table VIa. One exceptional pattern of hearing impairment occurs when the puretone thresholds in each of the four frequencies (1000, 2000, 3000, and 4000 Hertz) are 55 decibels or greater. 38 C.F.R. § 4.86(a). Another pattern occurs when the puretone threshold at 1000 Hertz is 30 decibels or less, and the threshold at 2000 Hertz is 70 decibels or more. 38 C.F.R. § 4.86(b). Table VII is used to determine the rating assigned by combining the Roman numeral designations for hearing impairment in each ear. Ratings for hearing impairment are derived by the mechanical application of the Rating Schedule to the numeric designations assigned after audiometry evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345 (1992). On August 2011 VA audiological evaluation, puretone thresholds, in decibels, were: HERTZ 1000 2000 3000 4000 RIGHT 30 40 55 55 LEFT 40 40 55 55 The average puretone thresholds were 45 in the right ear and 48 in the left ear. Speech audiometry revealed speech recognition ability of 96 percent in the right and left ear. A November 2016 private medical audiogram, reported in the form of a graph-type audiogram (it is unclear which ear is indicated by the symbols used, but for the purposes of this decision it is assumed the "X" refers to the left ear, and the "O" refers to the right ear), puretone thresholds, in decibels, were: HERTZ 1000 2000 3000 4000 RIGHT 50 45 65 80 LEFT 45 40 55 55 As the audiogram was conveyed in straightforward graph form, the Board finds that it is able to interpret the findings. See Kelly v. Brown, 7 Vet. App. 471, 474 (1995) (wherein the United States Court of Appeals for Veterans Claims (Court) stated that it does not have the power to interpret the results of a graphic-type audiogram, and further indicating the Board is empowered to make such factual findings in the first instance). The average puretone thresholds were 60 in the right ear and 49 in the left ear. Speech audiometry revealed speech recognition ability of 100 percent in the right ear and 96 percent in the left ear. On March 2020 VA audiological evaluation, puretone thresholds, in decibels, were: HERTZ 1000 2000 3000 4000 RIGHT 50 55 75 80 LEFT 50 50 70 70 The average puretone thresholds were 65 in the right ear and 60 in the left ear. Speech audiometry revealed speech recognition ability of 94 percent in the right and left ear. On April 2021 VA audiological evaluation, puretone thresholds, in decibels, were: HERTZ 1000 2000 3000 4000 RIGHT 45 45 60 70 LEFT 45 45 65 75 The average puretone thresholds were 55 in the right ear and 58 in the left ear. Speech audiometry revealed speech recognition ability of 96 percent in the right ear and 92 percent in the left ear. The Board notes that the Veteran also submitted a March 2021 private medical audiogram, reported in the form of a graph-type audiogram. As the audiogram was conveyed in straightforward graph form, the Board finds that it is able to interpret the findings. See Kelly v. Brown, 7 Vet. App. 471, 474 (1995). After review of the March 2021 private medical audiogram, the Board finds the audiogram is inadequate for rating purposes, at least in part, due to the lack of a puretone threshold in either ear at 3000 Hertz. See 38 C.F.R. § 4.85 (requiring a puretone threshold at 1000, 200, 3000 and 4000 Hertz in order to determine the Roman numeral designation for hearing impairment from Table VI or Table VIa). The Board also notes that in January 2020 and February 2021, the Board remanded this matter, in part, to secure specific audiometric results on April 16, 2014 at the Evansville VA Clinic, and on December 7, 2018 at the Harlingen Outpatient Clinic. Based on VA's efforts to obtain these records, the Board has determined that the RO's development has been exhaustive, and that any further attempts at development for these records would be fruitless. See also May 2021 VA letter (explaining the records could not be located and therefore are unavailable for review). Applying the results of the August 2011 examination to Table VI produces a finding that the Veteran had Level I hearing acuity in the right ear, and Level I hearing acuity in the left ear, warranting a noncompensable rating. An exceptional pattern of hearing is not demonstrated. 38 C.F.R. § 4.86. Applying the results of the November 2016 private audiogram to Table VI produces a finding that the Veteran had Level II hearing acuity in the right ear, and Level I hearing acuity in the left ear, warranting a noncompensable rating. An exceptional pattern of hearing impairment is not demonstrated. 38 C.F.R. § 4.86. Applying the results of the March 2020 examination to Table VI produces a finding that the Veteran had Level II hearing acuity in the right ear, and Level II hearing acuity in the left ear, warranting a noncompensable rating. An exceptional pattern of hearing impairment is not demonstrated. 38 C.F.R. § 4.86. Applying the results of the April 2021 examination to Table VI produces a finding that the Veteran had Level I hearing acuity in the right ear, and Level II hearing acuity in the left ear, warranting a noncompensable rating. An exceptional pattern of hearing impairment is not demonstrated. 38 C.F.R. § 4.86. As noted above, ratings for hearing impairment are derived by the mechanical application of the Rating Schedule to the numeric designations assigned after audiometry evaluations are rendered. On this basis, the Veteran is not entitled to a compensable rating as the preponderance of the evidence is against the claim. The Board acknowledges the Veteran's reports that his hearing loss results in difficulty communicating with patients and co-workers, difficulty taking blood pressure readings, and difficulty hearing and understanding conversations. These functional impairments are contemplated in the Rating Schedule. In addition, the fact that the Veteran wears hearing aids is not a basis to award a compensable rating for hearing loss. As stated previously, ratings for hearing impairment are derived by the mechanical application of the Rating Schedule to the numeric designations assigned after audiometry evaluations are rendered. Therefore, a compensable rating for the Veteran's bilateral hearing loss is not warranted. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Marley, 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.