Citation Nr: 21068860 Decision Date: 11/15/21 Archive Date: 11/15/21 DOCKET NO. 15-03 130 DATE: November 15, 2021 ORDER Entitlement to an initial compensable rating for a bilateral hearing loss disability is denied. FINDING OF FACT Bilateral hearing loss disability has been manifested by hearing acuity of no worse than Level II in either ear. CONCLUSION OF LAW The criteria for a compensable rating for bilateral hearing loss disability have not been met. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 4.7, 4.85, Diagnostic Code 6100 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from September 1984 to June 1987. The Veteran testified at a hearing before the undersigned Veterans Law Judge in February 2018. A transcript of that hearing has been added to the record. This case comes before the Board of Veterans' Appeals (Board) on appeal from an April 2012 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the undersigned Veterans Law Judge in February 2018. A transcript of that hearing is of record in the claims file. This case was previously before the Board, most recently in February 2021, at which time the issue currently on appeal was remanded for additional development. The case has now been returned to the Board for further appellate action. Increased Rating Bilateral Hearing Loss The Veteran asserts that his hearing loss is worse than the current noncompensable rating he received in the April 2012 rating decision. At a March 2012 VA audiological evaluation, the Veteran did not report that his hearing loss had an impact on the ordinary conditions of daily life, including his ability to work. Audiometric testing results at that time were as follows: HERTZ 1000 Hz 2000 Hz 3000 Hz 4000 Hz Average RIGHT 25 30 30 35 30 LEFT 15 25 25 45 27.5 Speech recognition was measured at 94 percent in both ears. Applying those values to the rating criteria results in a numeric designation of Level I in both ears. 38 C.F.R. § 4.85, Table VI. Application of the level of hearing impairment to Table VII produces a noncompensable (0 percent) rating. 38 C.F.R. § 4.85 (2020). Also of records is a December 2012 private audiology evaluation report. Complete audiometric testing results were not provided at that time. However, it was noted that the Veteran had Puretone threshold averages of 32 in the right ear and 35 in the left war. Speech recognition scores were also provided; however, there is no indication from the record that the speech recognition scores were the result of administration of the Maryland CNC speech recognition test as required for VA rating purposes. However, the scores reported were 88 percent in the right ear and 92 percent in the left ear. The Board will afford the Veteran the benefit of the doubt, and assume that the speech recognition scores provided were the result of administration of the Maryland CNC speech recognition test. Applying those values to the rating criteria results in a numeric designation of Level II in the right ear and Level I in the left ear. 38 C.F.R. § 4.85, Table VI. Application of that level of hearing impairment to Table VII again produces a noncompensable (0 percent) rating. 38 C.F.R. § 4.85 (2020). Following the most recent remand the AOJ was to incorporate a 2017 audiology note into the file. This note from March 2017 does not contain any recordation of pure tone threshold or Maryland CNC numbers that are adequate for rating purposes. Pure tone thresholds are only provided for the 500, 1000, and 2000 decibel range. This is not enough information to obtain a true average as this requires threshold measurements at 1000, 2000, 3000, and 4000. In July 2019, the Veteran was afforded another VA audiological evaluation. At that time the Veteran reported that his hearing loss caused frustration in the workplace as people assumed he could hear when he could not, that he often has to ask people to repeat themselves, that he was unable to adequately hearing his telephone without headphones, that he had to look at people face-to-face during conversation to ensure understanding, and that he had to keep the television or radio very loud in order for him to hear them. Audiometric testing results at that time were as follows: HERTZ 1000 Hz 2000 Hz 3000 Hz 4000 Hz Average RIGHT 35 35 40 40 37.50 LEFT 35 40 45 50 42.50 Speech recognition scores were recorded as 48 in the right ear and 56 in the left ear. However, the examiner noted that these speech discrimination scores were not appropriate due to language difficulties, cognitive problems, and inconsistent speech discrimination scores that made the combined use of Puretone average and speech discrimination scores inappropriate. The examiner also indicated that the Puretone test results were not valid for rating purposes. The examiner explained that the Veteran was very unreliable for word testing, for example the Veteran was adamant that the examiner's voice for instruction be presented louder over audiometer when he was able to answer all history questions without repetition at a normal conversation level. The examiner also indicated that the bone conduction scores were well below/worse than air conduction, which is highly unlikely. Table VIA can be used to determine the hearing impairment of a Veteran in circumstances when the examiner certifies that the use of speech discrimination test is not appropriate. 38 C.F.R. § 4.85 (c) (2020). Again, giving the Veteran the benefit of the doubt and using the Puretone threshold averages despite the examiner finding them to be inadequate, results in a numeric designation of Level I in the right ear and Level II in the left ear. Application of this level of hearing impairment to Table VII again produces a noncompensable (0 percent) rating. 38 C.F.R. § 4.85 (2020). The Board finds that the Veteran is not entitled to an initial compensable rating for his bilateral hearing loss disability. In this regard, the Veteran's bilateral hearing loss disability resulted in hearing impairment that was no worse than Level II in either ear. Those results fall squarely within the schedular rating criteria for a noncompensable rating. 38 C.F.R. § 4.485, Diagnostic Code 6100. Consideration has been given to assigning staged ratings. However, at no time during the period in question has the disability warranted a higher schedular rating than that assigned. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Additionally, the Board has considered the evidence of record showing that the Veteran believes his hearing loss is getting worse and that he often finds himself asking people to repeat themselves and that he has trouble at his job. The Veteran also indicates he requires the television, radio, and phone to be very loud in order to hear them. While the Board finds those statements to be credible, it finds that they do not provide sufficient evidence on which to award a higher rating for bilateral hearing loss disability. Disability ratings for hearing impairment are 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. 349 (1992). In this case, as noted above, the numeric designations correlate to no greater than a noncompensable rating. Accordingly, the Board finds that the preponderance of the evidence is against the claim and entitlement to an initial compensable rating for bilateral hearing loss disability is not warranted. 38 U.S.C. § 5107 (2018); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Kristin Haddock Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Andrew Ledman II 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.