Citation Nr: 21070720 Decision Date: 11/24/21 Archive Date: 11/24/21 DOCKET NO. 18-02 408 DATE: November 24, 2021 ORDER Entitlement to a rating in excess of 10 percent for a bilateral hearing loss disability is denied. FINDING OF FACT The Veteran's bilateral hearing has been manifested by hearing acuity of no worse than Level III in the right ear and no worse than Level V in the left ear, when considering exceptional patterns of hearing impairment. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for a bilateral hearing loss disability have not been met. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100 (2021). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1967 to October 1969. This matter came before the Board of Veterans Appeals (Board) on appeal from August 2016 and September 2017 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veteran's Law Judge during a March 2020 hearing. The transcript of the hearing is of record. An April 2020 Board decision reopened the issues of service connection for residuals of a stomach injury and GERD and remanded the issues on appeal for further development. A December 2020 rating decision granted service connection for residual stomach injury scarring and unspecified abdominal injury with gastroenteritis. As this constituted a complete grant of the benefit sought on appeal for the issues of stomach injury residuals and GERD, they are not before the Board. Entitlement to a rating in excess of 10 percent for a bilateral hearing loss disability The Veteran contends that he is entitled to a higher rating for his bilateral hearing loss disability. The Board concludes that an increased rating is not warranted as the Veteran's hearing loss disability is manifested by, at worst, Level III hearing acuity in the right ear and Level V hearing acuity in the left ear. Evaluations for defective hearing are based upon organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests, along with the average hearing threshold level as measured by puretone audiometric tests in the frequencies of 1000, 2000, 3000, and 4000 Hertz. 38 C.F.R. § 4.85, Tables VI, VII. To evaluate the degree of disability for service-connected bilateral hearing loss, the rating schedule establishes eleven auditory acuity levels, designated from level I for essentially normal acuity, through level XI for profound deafness. Table VI is used to determine the Roman numeric designation, based on test results consisting of puretone thresholds and Maryland CNC test speech discrimination scores. The numeric designations are then applied to Table VII to determine the appropriate rating for hearing impairment. Id. Where there is an exceptional pattern of hearing impairment, a rating based on puretone thresholds alone may be assigned (Table VIA). This alternative method for rating hearing loss disability may be applied if the puretone thresholds at 1000, 2000, 3000, and 4000 Hertz are all at 55 decibels or higher, or if the puretone threshold at 1000 Hertz is 30 or less and at 2000 Hertz is 70 or more. 38 C.F.R. § 4.86. Each ear is to be evaluated separately under this part of the regulations. 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. 345 (1992). At the August 2015 VA audiological examination for compensation purposes, puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 40 45 55 65 70 LEFT 40 40 55 60 60 The average puretone threshold was 59 decibels in the right ear and 54 decibels in the left ear. Speech audiometry conducted with the Maryland CNC test revealed speech recognition ability of 86 percent in the right ear and 72 percent in the left ear. The Veteran was diagnosed with bilateral sensorineural hearing loss. The examiner noted that the Veteran had problems hearing when talking to someone. A June 2016 VA examination noted that testing was not completed per patient request as he could not tolerate the pure tones and wanted to stop testing. March 2019 VA treatment records show a comprehensive audiological assessment, but the records state that the W-22 word list, not the Maryland CNC list, was used for speech recognition. The examination is therefore not adequate for rating purposes and the Board will not consider it in its analysis. May 2019 VA treatment records show a fitting for hearing aids. August 2019 VA treatment records show that the Veteran had a hearing aid check as the left aid was not working, and that debris was cleared from the wax traps. The aids were cleaned, and sound was noted to be good. At the November 2020 VA audiological examination for compensation purposes, puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 45 50 60 65 75 LEFT 40 55 60 65 75 The average puretone threshold was 60 decibels in the right ear and 63.75 decibels in the left ear. Speech audiometry conducted with the Maryland CNC test revealed speech recognition ability of 90 percent in the right ear and 80 percent in the left year. The Veteran was diagnosed with bilateral sensorineural hearing loss. The examiner noted the Veteran's reports of significant difficulty understanding in noise, in groups, on the phone and when watching television. Applying the foregoing medical evidence to the rating criteria, the Veteran's right ear is assigned a Level III designation and the left ear is assigned a Level V designation under Table VI. These assignments are based on the highest level of disability shown across the VA examinations. These categories correspond with a 10 percent disability rating under Table VII. 3 8 C.F.R. § 4.85, DC 6100. While the right ear did not meet the criteria for an exceptional pattern of hearing loss at any point during the period on appeal, the Veteran's left ear met the criteria at the November 2020 examination as he had a puretone threshold of 55 or more at each of the four specified frequencies. 38 C.F.R. § 4.86 (a)(b). Applying the results of that examination to Table VIA, the left ear would be assigned a Level V designation, the same designation assigned under Table VI. Thus, even when the Veteran's exceptional pattern of hearing loss in the left ear is considered, the numeric designations of hearing impairment are Level III in the right ear and Level V in the left ear and the corresponding rating is 10 percent. The Board acknowledges that the Veteran reported functional impairments of problems hearing in conversation, in noise, in groups, on the phone and when watching television. 38 C.F.R. § 4.10; Martinak v. Nicholson, 21 Vet. App. 447 (2007). The rating criteria contemplate speech reception thresholds and ability to hear spoken words on Maryland CNC testing. The functional impact that the Veteran describes, involving the effect of decreased hearing and difficulty understanding speech in an everyday environment, 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. See Rossy v. Shulkin, 29 Vet. App. 142, 145 (2017). The Veteran is competent to report his difficulty hearing. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303, 310 (2007); and 38 C.F.R. § 3.159 (a)(2) (2017). Nevertheless, as a layperson, without the appropriate medical training and expertise, his statements are not competent evidence to provide a probative opinion on a medical matter, especially the severity of his bilateral hearing loss disability in terms of the applicable rating criteria. Rather, this necessarily requires appropriate medical findings regarding the extent and nature of his bilateral hearing loss, including audiometric testing for puretone thresholds. As indicated above, rating a hearing loss disability involves the mechanical application of rating criteria to the results of specified audiometric studies. The probative evidence does not show the Veteran's hearing loss has ever reached the severity associated with a disability rating in excess of 10 percent during the appeal period. Considering the results of the VA examinations, entitlement to a rating in excess of 10 percent for a bilateral hearing loss disability must be denied. E. I. VELEZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Arnold 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.