Citation Nr: 21068776 Decision Date: 11/12/21 Archive Date: 11/12/21 DOCKET NO. 10-43 571 DATE: November 12, 2021 ORDER Entitlement to rating in excess of 10 percent prior to May 3, 2021, and in excess of 50 percent as of May 3, 2021, for bilateral hearing loss is denied. FINDING OF FACT 1. 2. Prior to May 3, 2021, the Veteran's bilateral hearing loss was manifested by no worse than Level I auditory acuity in the right ear and Level IV auditory acuity in the left ear. 3. From May 3, 2021, the Veteran's bilateral hearing loss was manifested by no worse than Level VIII auditory acuity in the right ear and Level IX auditory acuity in the left ear. CONCLUSION OF LAW The criteria for Entitlement to rating in excess of 10 percent prior to May 3, 2021, and in excess of 50 percent as of May 3, 2021, for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.326(a), 4.3, 4.85, 4.86(a), Diagnostic Code 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1964 to August 1966. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2021 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c); 38 U.S.C. § 7107(a)(2). 1. Entitlement to increased ratings for bilateral hearing loss The Veteran's hearing loss was rated 10 percent as of April 22, 2002, and prior to May 3, 2021, and has been rated 50 percent as of May 3, 2021. The claim for increase on appeal was filed in June 2009. Ratings for hearing loss range from 0 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 Hertz. To rate the degree of disability for 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 (h), Table VI. 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 performed. Lendenmann v. Principi, 3 Vet. App. 345 (1992). The criteria for rating hearing impairment use controlled speech discrimination tests (Maryland CNC) together with the results of pure tone audiometry tests. The results are charted on Table VI, or Table VIA in exceptional cases as described in 38 C.F.R. § 4.86, and Table VII. 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. In the cases with exceptional patterns of hearing loss, the Roman numeral value is determined using both Table VI and VIA and whichever table results in a higher Roman numeral value is used to calculate a rating using Table VII. 38 C.F.R. § 4.86. At a June 2009 VA examination, the Veteran's pure tone thresholds, in decibels, were: HERTZ 1000 2000 3000 4000 RIGHT 30 30 45 65 LEFT 55 55 55 70 Maryland CNC word recognition was 92 percent in the right ear and 92 percent in the left ear. The examiner described the right ear as mild to moderately severe, sensorineural hearing loss from 500 to 4000 Hertz, and the left ear as moderately-serve to severe, mixed hearing loss. The Board notes that neither ear displays an exceptional pattern of hearing loss by regulation. Thus, Table VI will be used to determine the appropriate rating. 38 C.F.R. § 4.85. Applying the results for the Veteran's right ear to Table VI shows that he had, at worst, Level I hearing loss, as shown by the VA examination results. Under Table VI, the left ear had, at worst, Level II hearing loss, as shown by the VA examination results. Applying Level I for the right ear and Level II for the left ear results in a 0 percent rating. 38 C.F.R. § 4.85. Therefore, the Board finds that the preponderance of the evidence is against the assignment of any higher rating. At a May 2009 private audiology examination, the Veteran's pure tone thresholds, in decibels, were: HERTZ 1000 2000 3000 4000 RIGHT 25 25 40 60 LEFT 55 50 55 65 Audiological evaluation results were displayed in graphical form that was not converted to an appropriate numerical form. However, the interpretation of a graphical audiogram is a finding of fact to be made by the Board in the first instance. Kelly v. Brown, 7 Vet. App. 471 (1995). The Veteran's speech recognition scores were 92 percent in the right ear and 88 percent in the left ear. However, the examiner did not indicate the type of word recognition testing that was used. Because it is unclear which speech recognition test was used in the May 2009 private audiology report, the audiometric evaluation is not adequate for rating purposes under 38 C.F.R. § 4.85 (a) and will not be considered in adjudication of the claim. At a June 2009 VA examination, the Veteran's pure tone thresholds, in decibels, were: HERTZ 1000 2000 3000 4000 RIGHT 30 30 45 65 LEFT 55 55 55 70 Maryland CNC word recognition was 92 percent in the right ear and 92 percent in the left ear. Applying the results for the Veteran's right ear to Table VI shows that he had, at worst, Level I hearing loss, as shown by the VA examination results. Under Table VI, the left ear had, at worst, Level II hearing loss, as shown by the VA examination results. Applying Level I for the right ear and Level II for the left ear results in a 0 percent rating. 38 C.F.R. § 4.85. Therefore, the Board finds that the preponderance of the evidence is against the assignment of any higher rating. The Board notes that the left ear displays an exceptional pattern of hearing loss under 38 C.F.R. § 4.86 (a). The left ear had an exceptional pattern of hearing loss and the average pure tone loss of 58.75 would warrant a Level IV on Table VIA. Under Table VI, the left ear had Level I hearing loss. As Level IV is the higher numeral, Level IV was used to determine the appropriate rating. Right ear hearing acuity was manifested by a Level I impairment using Table VI. Applying Level IV for the left ear, and Level I for the right ear results in a 0 percent rating. 38 C.F.R. §§ 4.85, 4.86(a). Therefore, the Board finds that the preponderance of the evidence is against the assignment of any higher rating. At an October 2009 private audiology examination, the Veteran's pure tone thresholds, in decibels, were: HERTZ 1000 2000 3000 4000 RIGHT 25 25 40 60 LEFT 55 50 55 65 Audiological evaluation results were displayed in graphical form that was not converted to an appropriate numerical form. However, the interpretation of a graphical audiogram is a finding of fact to be made by the Board in the first instance. Kelly v. Brown, 7 Vet. App. 471 (1995). The Veteran's speech recognition scores were 100 percent in the right ear and 100 percent in the left ear. However, the examiner did not indicate the type of word recognition testing that was used. Because it is unclear which speech recognition test was used in the October 2009 private audiology report, the audiometric evaluation is not adequate for rating purposes under 38 C.F.R. § 4.85(a) and will not be considered in adjudication of the claim. At a September 2010 private audiology examination, the Veteran's pure tone thresholds, in decibels, were: HERTZ 1000 2000 3000 4000 RIGHT 50 55 65 80 LEFT 50 55 60 70 The Veteran's speech recognition scores were 88 percent in the right ear and 88 percent in the left ear. However, the examiner did not indicate the type of word recognition testing that was used. Because it is unclear which speech recognition test was used in the September 2010 private audiology report, the audiometric evaluation is not adequate for rating purposes under 38 C.F.R. § 4.85(a) and will not be considered in adjudication of the claim. At an August 2016 VA examination, the Veteran's pure tone thresholds, in decibels, were: HERTZ 1000 2000 3000 4000 RIGHT 40 40 65 75 LEFT 55 50 65 80 Maryland CNC word recognition was 92 percent in the right ear and 92 percent in the left ear. The Board notes that neither ear displays an exceptional pattern of hearing loss by regulation. Thus, Table VI will be used to determine the appropriate rating. 38 C.F.R. § 4.85. Applying the results for the Veteran's right ear to Table VI shows that he had, at worst, Level I hearing loss, as shown by the VA examination results. Under Table VI, the left ear had, at worst, Level II hearing loss, as shown by the VA examination results. Applying Level I for the right ear and Level II for the left ear results in a 0 percent rating. 38 C.F.R. § 4.85. Therefore, the Board finds that the preponderance of the evidence is against the assignment of any higher rating. At an October 2020 private audiology examination, the Veteran's pure tone thresholds, in decibels, were: HERTZ 1000 2000 3000 4000 RIGHT 50 60 75 85 LEFT 60 60 80 85 The Veteran's speech recognition scores were 96 percent in the right ear and 94 percent in the left ear. However, the examiner did not indicate the type of word recognition testing that was used. Because it is unclear which speech recognition test was used in the October 2020 private audiology report, the audiometric evaluation is not adequate for rating purposes under 38 C.F.R. § 4.85(a) and will not be considered in adjudication of the claim. The Board notes that the left ear had an exceptional pattern of hearing loss and the average pure tone loss of 71.25 would warrant a Level VI on Table VIA. However, the right ear did not show an exceptional pattern of hearing loss to warrant the use of Table VIA. Applying the results for the Veteran's left ear to Table VIA showed Level V hearing loss. 38 C.F.R. § 4.86 (a). Table VI should be used to determine the appropriate rating for the right ear. 38 C.F.R. § 4.85. However, because it is unclear which speech recognition test was used, the audiometric evaluation is not adequate for rating purposes under 38 C.F.R. § 4.85(a) for the right ear. Thus, the rating for the left ear under 38 C.F.R. § 4.86(a) cannot be combined with the left ear under 38 C.F.R. § 4.85 for rating purposes. Therefore, the October 2020 private audiology report will not be considered in adjudication of the claim. At a May 2021 VA examination, the Veteran's pure tone thresholds, in decibels, were: HERTZ 1000 2000 3000 4000 RIGHT 50 65 85 95 LEFT 80 80 80 100 Maryland CNC word recognition was 54 percent in the right ear and 50 percent in the left ear. Applying the results for the Veteran's right ear to Table VI shows that he had, at worst, Level VIII hearing loss, as shown by the VA examination results. Under Table VI, the left ear had, at worst, Level IX hearing loss, as shown by the VA examination results. Applying Level VIII for the right ear and Level IX for the left ear results in a 50 percent rating. 38 C.F.R. § 4.85. Therefore, the Board finds that the preponderance of the evidence is against the assignment of any higher rating. The Board notes that the left ear displays an exceptional pattern of hearing loss under 38 C.F.R. § 4.86(a). The Board notes that the left ear had an exceptional pattern of hearing loss and the average pure tone loss of 85 would warrant a Level VIII on Table VIA. Under Table VI, the left ear had Level IX hearing loss. As Level IX is the higher numeral, Level IX was used to determine the appropriate rating. Right ear hearing acuity was manifested by a Level VIII impairment using Table VI. Applying Level IX for the left ear, and Level VIII for the right ear results in a 50 percent rating. 38 C.F.R. §§ 4.85, 4.86(a). Therefore, the Board finds that the preponderance of the evidence is against the assignment of any higher rating. The Veteran's disability must be rated on the objective findings demonstrated during audiological examination. Hearing loss involves a mechanical application of the Rating Schedule to numeric designations assigned to audiology testing results that meet regulatory requirements. The fact that hearing acuity is less than optimal does not, by itself, establish entitlement to a higher rating. A higher rating can only be awarded when loss of hearing has reached a specified measurable level. The Board finds that the preponderance of the evidence is against a finding that the criteria for a rating in excess of 10 percent prior to April 22, 2002, to May 3, 2021, and in excess of 50 percent as of May 3, 2021, bilateral hearing loss has not been met. The Board expressly acknowledges consideration of the lay evidence of record when adjudicating this claim, including the Veteran's claim that he can barely hear, and must read a person's lips to know what is being said and that he must be looking at the person to know that he is being spoken to. The Veteran is competent to report difficulty with hearing. However, 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 criteria contemplate speech reception thresholds and ability to hear spoken words on Maryland CNC testing. The functional impact that the Veteran describes, is contemplated by the rating criteria. Doucette v. Shulkin, 28 Vet. App. 366 (2017). The Veteran's main complaint is reduced hearing acuity and clarity, which is what is contemplated in the rating assigned. Rossy v. Shulkin, 29 Vet. App. 142 (2017). Accordingly, the Board finds that the preponderance of the evidence is against the claim of entitlement to a rating in excess of 10 percent prior to May 3, 2021, and in excess of 50 percent as of May 3, 2021, for bilateral hearing. Therefore, the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Harvey P. Roberts Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Sonya S. Tsao, 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.