Citation Nr: 21065100 Decision Date: 10/25/21 Archive Date: 10/25/21 DOCKET NO. 12-05 750 DATE: October 25, 2021 ORDER Entitlement to a compensable rating for bilateral hearing loss prior to June 22, 2021 is denied. Entitlement to a rating in excess of 10 percent for bilateral hearing loss since June 22, 2021 is denied. FINDINGS OF FACT 1. Prior to June 22, 2021, the Veteran had, at worst, Level II hearing acuity in the right ear and Level III hearing acuity in the left ear; the rating criteria contemplate the Veteran's hearing symptoms. 2. Since June 22, 2021, the Veteran had, at worst, Level II hearing acuity in the right ear and Level V hearing acuity in the left ear; the rating criteria contemplate the Veteran's hearing symptoms. CONCLUSIONS OF LAW 1. The criteria for a compensable rating for bilateral hearing loss prior to June 22, 2021 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. 2. The criteria for a rating in excess of 10 percent for bilateral hearing loss since June 22, 2021 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 FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from July 1966 to September 1972, including combat service in the Republic of Vietnam, and his decorations and awards include the Purple Heart and Combat Action Ribbon. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge in a September 2017 video conference hearing. This matter was previously before the Board in June 2017, August 2018 and September 2020 when it was remanded for additional development. 1. Entitlement to a compensable rating for bilateral hearing loss prior to June 22, 2021 2. Entitlement to a rating in excess of 10 percent for bilateral hearing loss since June 22, 2021 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 2010 VA audiological evaluation, puretone thresholds, in decibels, were: HERTZ 1000 2000 3000 4000 RIGHT 30 50 70 75 LEFT 35 60 75 80 The average puretone thresholds were 56 in the right ear and 63 in the left ear. Speech audiometry revealed speech recognition ability of 92 percent in the right ear and 84 percent in the left ear. On August 2015 VA audiological evaluation, puretone thresholds, in decibels, were: HERTZ 1000 2000 3000 4000 RIGHT 30 55 70 75 LEFT 40 60 75 80 The average puretone thresholds were 58 in the right ear and 64 in the left ear. Speech audiometry revealed speech recognition ability of 96 percent in the right ear and 100 percent in the left ear. Applying the results of the August 2010 examination to Table VI produces a finding that the Veteran had Level I hearing acuity in the right ear, and Level III 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 August 2015 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. 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 prior to June 22, 2021 as the preponderance of the evidence is against the claim. The Board acknowledges the Veteran's reports that his hearing loss results in difficulty hearing conversations in background noise and when he cannot see the speaker's face. See, e.g., August 2010, August 2015 VA examinations. 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. See October 2002 VA audiology note (issuing new hearing aids to the Veteran). 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 prior to June 22, 2021 is not warranted. On June 22, 2021 VA audiological evaluation, puretone thresholds, in decibels, were: HERTZ 1000 2000 3000 4000 RIGHT 45 60 75 75 LEFT 55 65 75 80 The average puretone thresholds were 64 in the right ear and 69 in the left ear. Speech audiometry revealed speech recognition ability of 100 percent in the right ear and 84 percent in the left ear. Applying the results of the June 22, 2021 VA examination to Table VI produces a finding that the Veteran had Level II hearing acuity in the right ear, and Level III hearing acuity in the left ear, warranting a noncompensable rating. Applying the results to Table VIa (as there is an exceptional pattern of hearing impairment in the left ear under § 4.86(a)) produces a finding that the Veteran had Level V hearing acuity in the left ear, warranting a 10 percent rating. 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 rating in excess of 10 percent since June 22, 2021 as the preponderance of the evidence is against the claim. The Board acknowledges the Veteran's reports that his hearing loss results in difficulty hearing and communicating with others, especially in the presence of background noise, as well as difficulty hearing his television, resulting in having to turn the television volume to a high setting. These functional impairments are contemplated in the Rating Schedule. 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 rating in excess of 10 percent for the Veteran's bilateral hearing loss since June 22, 2021 is not warranted. In summary, at no point prior to June 22, 2021 has the Veteran's bilateral hearing loss met the criteria for a compensable rating, and at no point since June 22, 2021 has the Veteran's bilateral hearing loss met the criteria for a rating in excess of 10 percent. 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.