Citation Nr: 21064923 Decision Date: 10/22/21 Archive Date: 10/22/21 DOCKET NO. 19-08 283 DATE: October 22, 2021 ORDER Entitlement to a compensable disability rating for bilateral hearing loss is denied. FINDING OF FACT The Veteran's left ear hearing loss was no worse than Level II, and right ear hearing loss was no worse than Level I for the period under consideration. CONCLUSION OF LAW The criteria for a compensable rating for hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.85, 4.86, Diagnostic Code (DC) 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service from July 1957 to May 1959. Procedurally, and in pertinent part, the January 2018 and April 2018 rating decisions denied a compensable rating for the Veteran's service-connected left ear hearing loss. At the time, the Veteran was not service connected for right ear hearing loss. In January 2021, the Regional Office granted service connection for the right ear and assigned a noncompensable rating for bilateral hearing loss. Accordingly, the Board will decide whether the Veteran is entitled to a compensable rating for his bilateral hearing loss. This matter was previously before the Board in March 2021, at which time it was remanded for additional development. That development is complete in substantial compliance with remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Increased Ratings Disability evaluations 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 his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Entitlement to a compensable disability rating for bilateral hearing loss The Veteran seeks a higher disability rating for his bilateral hearing loss, which is rated noncompensable under 38 C.F.R. § 4.86, DC 6100. Ratings of hearing loss range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of speech discrimination tests combined with the average hearing threshold levels as measured by pure tone audiometry tests in the frequencies 1000, 2000, 3000, and 4000 cycles per second. To rate the degree of disability for service-connected hearing loss, the Rating Schedule has established eleven auditory acuity levels, designated from level I, for essentially normal acuity, through level XI, for profound deafness. 38 C.F.R. § 4.85, Diagnostic Code 6100, Table VI. In order to establish entitlement to an increased rating for hearing loss, it must be shown that certain minimum levels of the combination of the percentage of speech discrimination loss and average pure tone decibel loss are met. The assignment of disability ratings for hearing impairment is 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). The criteria for rating hearing impairment use controlled speech discrimination tests (Maryland CNC) together with the results of pure tone audiometry tests. These results are then charted on Table VI, Table VIA in exceptional cases as described in 38 C.F.R. § 4.86, and Table VII, as set out in the Rating Schedule. 38 C.F.R. § 4.85. An exceptional pattern of hearing loss occurs when the pure tone threshold at 1000, 2000, 3000, and 4000 Hertz is 55 decibels or more, or when the pure tone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz. 38 C.F.R. § 4.86. Specifically, when the pure tone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz, the Roman numeral designation for hearing impairment is determined from either Table VI or Table VIA, whichever results in the higher numerical. 38 C.F.R. § 4.86(b). That numeral will then be elevated to the next higher Roman numeral, and then each ear will be evaluated separately. Id. A review of the record shows the Veteran was most recently afforded an audiological examination by a private provider in June 2021. Pure-tone thresholds, in decibels, were as follows: 1000 Hertz 2000 Hertz 3000 Hertz 4000 Hertz Average Right Ear 15 dB 30 dB 35 dB 45 dB 31.25 dB Left Ear 10 dB 35 dB 60 dB 60 dB 41.25 dB Regarding Maryland CNC speech recognition scores, the Regional Office sent correspondence to the clinic requesting confirmation that the Maryland CNC testing was completed in conjunction with this evaluation. The Veteran provided correspondence in August 2021 noting Maryland CNC testing was used. Per the audiological report, scores were 96 percent in the right ear and 88 percent in the left ear. Utilizing Table VI, the combination of the 31.25 dB pure-tone threshold average and the 96 percent speech discrimination for the right ear results in the designation of a Roman numeral I. The combination of the 41.25 dB pure-tone threshold average and the 88 percent speech discrimination for the left ear results in the designation of a Roman numeral II. When the Roman numerals I and II are applied to Table VII, the resulting percentage evaluation is noncompensable. Additionally, the examiner is listed as an audiologist, as required for rating purposes. See 38 C.F.R. § 4.85. As such, the audiogram is adequate for VA purposes and holds probative value. Id. Furthermore, the examination did not reveal any exceptional patterns of hearing impairment as defined in 38 C.F.R. § 4.86. Therefore, Table VIA is not for application. Aside from the most recent test results listed above, other audiometric tests of record include examinations in December 2020, March 2019, March 2018, and January 2018. The Veteran underwent a VA Hearing examination in December 2020. Pure-tone thresholds, in decibels, were as follows: 1000 Hertz 2000 Hertz 3000 Hertz 4000 Hertz Average Right Ear 5 dB 20 dB 35 dB 50 dB 27.5 dB Left Ear 10 dB 30 dB 55 dB 55 dB 37.5 dB Maryland CNC speech recognition scores were 96 percent in the right ear and 88 percent in the left ear. Sensorineural hearing loss in both the right and left ears in the frequency range of 500-4000Hz was noted. In the remarks section, the examiner noted that the Veteran denies significant shifts in hearing or medically related ear issues. Utilizing Table VI, the combination of the 27.5 dB pure-tone threshold average and the 96 percent speech discrimination for the right ear results in the designation of a Roman numeral I. The combination of the 37.5 dB pure-tone threshold average and the 88 percent speech discrimination for the left ear results in the designation of a Roman numeral II. When the Roman numerals I and II are applied to Table VII, the resulting percentage evaluation is noncompensable. In March 2019, the Veteran underwent a private audiological examination. However, in the remarks section, it was noted this examination was not adequate for rating purposes. The Maryland CNC test was not utilized. The Veteran underwent an audiological examination by a private provider in March 2018. Pure-tone thresholds, in decibels, were as follows: 1000 Hertz 2000 Hertz 3000 Hertz 4000 Hertz Average Right Ear 20 dB 20 dB 35 dB 45 dB 30 dB Left Ear 15 dB 25 dB 60 dB 55 dB 38.75 dB Maryland CNC speech recognition scores were 92 percent in the right ear and 88 percent in the left ear. Utilizing Table VI, the combination of the 30 dB pure-tone threshold average and the 92 percent speech discrimination for the right ear results in the designation of a Roman numeral I. The combination of the 38.75 dB pure-tone threshold average and the 88 percent speech discrimination for the left ear results in the designation of a Roman numeral II. When the Roman numerals I and II are applied to Table VII, the resulting percentage evaluation is noncompensable. The Veteran underwent a VA Hearing examination in January 2018. Pure-tone thresholds, in decibels, were as follows: 1000 Hertz 2000 Hertz 3000 Hertz 4000 Hertz Average Right Ear 10 dB 20 dB 30 dB 45 dB 26.25 dB Left Ear 10 dB 30 dB 60 dB 55 dB 38.75 dB Maryland CNC speech recognition scores were 94 percent in the right ear and 96 percent in the left ear. Sensorineural hearing loss in the right and left ears were noted in the frequency range of 500-4000 Hz and 6000 Hz or higher. The Veteran reported that he struggles to hear in background noise. Utilizing Table VI, the combination of the 26.25 dB pure-tone threshold average and the 94 percent speech discrimination for the right ear results in the designation of a Roman numeral I. The combination of the 38.75 dB pure-tone threshold average and the 96 percent speech discrimination for the left ear results in the designation of a Roman numeral I. When the Roman numerals I and I are applied to Table VII, the resulting percentage evaluation is noncompensable. The Board has considered and weighed the lay statements submitted by the Veteran and his inability to hear well. He is competent to describe his hearing loss. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, his description of his service-connected disability must be considered in conjunction with the clinical evidence of record as well as the pertinent rating criteria. In this regard, the Board emphasizes that ratings are derived by a mechanical application of the rating schedule. Lendenmann, 3 Vet. App. 349. Thus, the Board has based its determination on the results of the audiology studies of record. Here, mechanical application of the rating schedule to the Veteran's audiometric findings does not establish entitlement to a compensable evaluation for hearing loss. Moreover, and specifically in respect to hearing loss, an audiologist must fully describe the functional effects caused by a hearing disability in his or her final report. Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). In this case, the December 2020 VA examiner indicated that the Veteran denied significant shifts in hearing or medically related ear issues. The January 2018 VA examiner noted the Veteran reported he struggles to hear in background noise. The Board observes that these difficulties are encompassed in the disability rating table. (Continued on the next page) Accordingly, as the preponderance of the evidence does not show worse than Level I hearing acuity in the right ear and worse than Level II acuity in the left ear throughout the period on appeal, entitlement to a compensable rating for hearing loss is not warranted. As such, the benefit of the doubt doctrine is not applicable and a compensable rating for hearing loss is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. KRISTI L. GUNN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Krista Johnson, 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.