Citation Nr: 21068450 Decision Date: 11/10/21 Archive Date: 11/10/21 DOCKET NO. 18-52 396 DATE: November 10, 2021 ORDER A compensable rating for left ear hearing loss is denied. FINDING OF FACT At worst, the Veteran's left ear hearing loss has been characterized by a numeric designation of Level I in the right ear and Level IV in the left ear. CONCLUSION OF LAW The criteria for a compensable rating for left ear hearing loss have not been met. 38 U.S.C. § 1155; 5107; 38 C.F.R. §§ 3.321, 4.1, 4.10, 4.85, 4.86 Diagnostic Code 6100 REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1957 to April 1960. VA received the Veteran's claim for an increased rating for his left ear hearing loss on February 29, 2016. This issue was previously before the Board in October 2020. The Board decision noted that the most recent VA examination had taken place in May 2017, but because the Veteran had submitted a November 2018 private audiological evaluation, which suggested a worsening of his hearing loss, the case was remanded for a new VA examination. See Snuffer v. Gober, 10 Vet. App. 400 (1997). The Board also noted that the private audiological evaluation had included a speech discrimination test, but it was unclear whether the Maryland CNC had been used. The Board also pointed out that private evaluation did not record the frequencies at 2000, 3000, or 6000Hz. The Board also remanded so that the private audiologist to confirm whether the Maryland CNC test was used, and to identify specific audiometric threshold losses at 1000, 2000, 3000, and 4000Hz. After the aforementioned development took place, a new VA examination was also ordered. VA sent the Veteran correspondence in October 2020, seeking his authorization to contact his private audiologist, or to obtain those records himself and send them to VA. The Veteran provided a VA Form 21-4142, Authorization for Release of Information, and listed Riverside Audiology, and its associated address. VA informed the Veteran that it attempted to retrieve the private records, but was unable to contact and unable to locate alternative contact information. See Subsequent Development Letter dated June 25, 2021. The Board also notes that two subsequent requests were sent to the private audiologist, in August and September 2021, seeking clarification on the November 2018 audiological examination. However, no response has been received. In the alternative, the Regional Office (RO) asked a VA examiner to interpret the findings November 2018 private audiological report. A VA examiner provided their interpretation in December 2020. Given that VA attempted, on multiple occasions, to retrieve the Veteran's private medical records, with the information provided by the Veteran, and was provided a VA interpretation of the November 2018 private audiological evaluation report, the Board finds that there has been substantial compliance with the October 2020 Board remand directives, as they pertain to clarifying the November 2018 private audiological evaluation. See Stegall v. West, 11 Vet. App. 268, 271 (1998). A compensable rating for left ear hearing loss is denied. The Veteran asserts that he is entitled to a compensable rating for his left ear hearing loss. The Veteran is currently assigned a noncompensable rating, effective September 5, 2013. Disability ratings for hearing loss are derived from a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing. Lendenmann v. Principi, 3 Vet. App. 345 (1992). The rating schedule establishes auditory hearing acuity levels based on average puretone thresholds and speech discrimination. 38 C.F.R. § 4.85. Ratings for hearing loss are determined in accordance with the findings obtained on audiometric examinations. Ratings for hearing impairment range from 0 percent to 100 percent based on organic impairment of hearing acuity, as measured by the results of the controlled speech discrimination tests, together with the average hearing threshold level as measured by puretone audiometry tests in the frequencies 1000, 2000, 3000, and 4000 Hertz. To rate the degree of disability from hearing impairment, the rating schedule establishes 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. Hearing tests will be conducted without hearing aids, and the results of testing are charted on Table VI and Table VII. 38 C.F.R. § 4.85, Tables VI, VII. Exceptional patterns of hearing impairment are rated under 38 C.F.R. § 4.86. When the puretone threshold at each of the four specified frequencies of 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 will be evaluated separately. When the puretone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz, the rating specialist will determine the Roman numeral for hearing impairment from Table VI or Table VIA, whichever is higher. That numeral will then be elevated to the next higher Roman numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86. If, as here, impaired hearing is service-connected in only one ear, in order to determine the percentage evaluation from Table VII, the non-service-connected ear will be assigned a Roman Numeral designation for hearing impairment of I. See 38 C.F.R. § 4.85 (f). An adequate evaluation of impairment of hearing acuity rests upon the results of controlled speech discrimination tests, together with tests of the average hearing threshold levels at certain specified frequencies. 38 C.F.R. § 4.85, Diagnostic Code 6100. The Veteran's VA treatment records have been reviewed but do not contain the results of any audiometric testing, beyond the VA and private examinations discussed below. The Veteran was afforded a VA examination in April 2016. The audiological examination report showed puretone thresholds, in decibels, as follows: HERTZ 1000 2000 3000 4000 Average Left 55 50 55 65 56 The Veteran's Maryland CNC test showed that he scored 94 percent in his left ear. The Veteran was afforded a VA examination in May 2017. The audiological examination report showed puretone thresholds, in decibels, as follows: HERTZ 1000 2000 3000 4000 Average Left 60 55 60 70 61 The Veteran's Maryland CNC test showed that he scored 98 percent in his left ear. As previously discussed, the private November 2018 private audiological evaluation was remanded for clarification on the speech recognition test and the specific frequencies at 2000, 3000, and 6000Hz. The private audiologist was not able to be contacted. However, a December 2020 VA examiner provided an interpretation of the November 2018 private audiological evaluation results. The VA examiner acknowledged reviewing the November 15, 2018 report, conducted by a private audiologist. The VA examiner reported that the speech recognition test was administered using the Northwestern University Auditory Test - #6 (NU-6) and not the Maryland CNC word list. Regarding the puretone threshold test, the VA examiner did not provide specific measurements at the 1000-4000 frequencies, but the VA examiner noted that the threshold average was 58.75, per 38 C.F.R. § 4.85. The Veteran was afforded a VA examination in April 2021. The audiological examination report showed puretone thresholds, in decibels, as follows: HERTZ 1000 2000 3000 4000 Average Left 55 50 55 65 56 The Veteran's Maryland CNC test showed that he scored 90 percent in his left ear. The results of the April 2016 audiological evaluation showed an average hearing loss of 56 decibels in the left ear. He had a speech discrimination score of 94 percent in the left ear. Under Table VI, the April 2016 audiological results show that he had a Level II hearing disability in the left ear. As the Veteran is not service connected for hearing loss in his right ear, his right ear has been assigned a Level I. See 38 C.F.R. § 4.85. A Level II in the left ear and a Level I in the right ear warrants a noncompensable rating under Table VII. There was no exceptional pattern of hearing loss. The results of the May 2017 audiological evaluation showed an average hearing loss of 61 decibels in the left ear. He had a speech discrimination score of 98 percent in the left ear. Under Table VI, the May 2017 audiological results show that he had a Level II hearing disability in the left ear. As the Veteran is not service connected for hearing loss in his right ear, his right ear has been assigned a Level I. See 38 C.F.R. § 4.85. A Level II in the left ear and a Level I in the right ear warrants a noncompensable rating under Table VII. The Board notes that the May 2017 audiometric test also showed an exceptional pattern of hearing impairment in the left ear, because he scored higher than 55 in each of the four specified frequencies. Under Table VIA, his left ear hearing loss merits a Level IV hearing loss disability designation, which is still noncompensable when paired with a I for the right ear. The results of the private November 2018 audiological evaluation showed an average hearing loss of 58.75 decibels in the left ear. However, the speech recognition test did not utilize the Maryland CNC test, and thus, will not be used for rating purposes. As such, the Board will utilize Table VIA, which obtains the numeric designation based only on the puretone threshold average. Under Table VIA, his left ear hearing loss merits a Level IV hearing disability, which is noncompensable when paired with a I for the right ear. The results of the April 2021 audiological evaluation showed an average hearing loss of 56 decibels in the left ear. He had a speech discrimination score of 90 percent in the left ear. Under Table VI, the April 2021 audiological results show that he had a Level II in the left ear. As the Veteran is not service connected for hearing loss in his right ear, his right ear has been assigned a Level I. See 38 C.F.R. § 4.85. A Level II in the left ear and a Level I in the right ear warrants a noncompensable rating under Table VII. There was no exceptional pattern of hearing loss. The Board acknowledges that the Veteran's private audiologist was not able to provide a clarification of the November 2018 private audiological evaluation. However, the Board does not believe that the Veteran has been prejudiced by such, because a VA examiner provided an interpretation of that evaluation report, and he was provided an additional VA examination thereafter. The Board points out that when a Veteran is only service connected for one ear, it is very difficult to obtain a compensable rating for hearing loss. The Veteran would need to reach at least a Level X hearing loss designation to warrant a 10 percent rating for his left ear. The Board does not believe that the summary of the private audiology consultation described findings consistent with Level X. Level X is warranted when a veteran shows a puretone threshold average of 98+ and a speech discrimination score of 44-50; a puretone threshold average of 82-89 and a speech discrimination score of 36-42; or a puretone threshold average of 42-49 and a speech discrimination score of 0-34. Here, the Veteran has asserted that he is entitled to a compensable rating, but has not pointed to any clinical evidence that would support such a position. Given the Veteran's complaints of decreased hearing acuity, he was afforded three VA examinations during this period on appeal to evaluate the current severity of the hearing loss. However, the mechanical application of the rating schedule to the numeric designations assigned based on audiometric test results does not reveal findings consistent with a compensable rating. The Board acknowledges the Veteran's complaints of decreased hearing. The Board emphasizes that it has heard the Veteran's assertions and concerns. He reported that he could not hear out of his left ear without hearing aids. See NOD dated November 24, 2018. He reported that he did not understand why he was assigned a 0 percent rating, when he was required to use a hearing aid. Id. The Board does not doubt that the Veteran's hearing loss causes him hardship and is sympathetic to his claim. Unfortunately, the audiometric results show that the Veteran's hearing loss is noncompensable under the schedular criteria. Although the Board acknowledges that the Veteran's left ear hearing loss causes impairment, the Board is bound by the law on this matter, and is without authority to grant the benefit sought. The Board acknowledges that the Veteran has shown hearing loss in his left ear, however, his hearing loss has not risen to a level that VA regulations rate as compensable and the Board is bound by the rigid and mechanical application of the rating criteria. As previously explained, when only one ear is service connected for hearing loss, it is very difficult to receive a compensable rating, under Diagnostic Code 6100. Here, the Veteran has not shown that his left ear hearing loss rises to a Level X, under the rating schedule. As such, the Board finds that there is no schedular basis for a compensable rating based on the testing results of record. Accordingly, a compensable rating for left ear hearing loss is denied. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Fu, 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.