Citation Nr: 21071062 Decision Date: 11/29/21 Archive Date: 11/29/21 DOCKET NO. 16-36 296 DATE: November 29, 2021 ORDER Entitlement to a compensable rating for bilateral hearing loss is denied. FINDING OF FACT For the entire rating period, the Veteran's service-connected bilateral hearing loss has not been manifested by hearing acuity worse than Level II in both ears. CONCLUSION OF LAW The criteria for entitlement to a compensable rating for bilateral hearing loss have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 3.383, 3.655, 4.1, 4.2, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1965 to October 1967. This matter comes before the Board of Veterans' Appeals (Board) from a May 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Board previously considered this appeal in November 2018 and May 2021, and remanded for further development, including scheduling a VA examination. The case returned to the Board for further appellate review. 1. Entitlement to a compensable rating for bilateral hearing loss Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. All reasonable doubt will be resolved in the claimant's favor. 38 C.F.R. § 4.3. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Where the evaluation of hearing loss is at issue, an examination for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a pure tone audiometry test. Examinations will be conducted without the use of hearing aids. 38 C.F.R. § 4.85(a). A rating for hearing loss is determined by a mechanical application of the rating schedule to the numeric designations assigned based on audiometric test results. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). Evaluations of bilateral hearing loss range from noncompensable to 100 percent based on organic impairment of hearing acuity, as measured by a controlled speech discrimination test and the average hearing threshold, as measured by pure tone audiometric tests at the frequencies of 1000, 2000, 3000 and 4000 hertz. The rating schedule establishes 11 auditory acuity levels designated from Level I, for essentially normal hearing acuity, through level XI for profound deafness. Under 38 C.F.R. § 4.85, Table VI (Numeric Designation of Hearing Impairment Based on Puretone Threshold Average and Speech Discrimination) is used to determine a Roman numeral designation (I through XI) for hearing impairment based on a combination of the percent of speech discrimination (horizontal rows) and the pure tone threshold average (vertical columns). The Roman numeral designation is located at the point where the percentage of speech discrimination and pure tone average intersect. 38 C.F.R. § 4.85(b). The pure tone threshold average is the sum of the pure tone thresholds at 1000, 2000, 3000 and 4000 hertz, divided by 4. This average is used in all cases to determine the Roman numeral designation for hearing impairment. 38 C.F.R. § 4.85(d). Table VI Numeric designation of hearing impairment based on puretone threshold average and speech discrimination. % of discrim- ination Puretone Threshold Average 0-41 42-49 50-57 58-65 66-73 74-81 82-89 90-97 98+ 92-100 I I I II II II III III IV 84-90 II II II III III III IV IV IV 76-82 III III IV IV IV V V V V 68-74 IV IV V V VI VI VII VII VII 60-66 V V VI VI VII VII VIII VIII VIII 52-58 VI VI VII VII VIII VIII VIII VIII IX 44-50 VII VII VIII VIII VIII IX IX IX X 36-42 VIII VIII VIII IX IX IX X X X 0-34 IX X XI XI XI XI XI XI XI Alternatively, VA regulations provide that in cases of exceptional hearing loss, when the puretone thresholds at each of the four specified frequencies (1,000, 2,000, 3,000 and 4,000 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. 38 C.F.R. § 4.86(a). The provisions of 38 C.F.R. § 4.86(b) further provide that, when the puretone threshold is 30 decibels or less at 1,000 Hertz, and 70 decibels or more at 2,000 Hertz, 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. That numeral will then be elevated to the next higher Roman numeral. Each ear will be evaluated separately. Table VIA Numeric designation of hearing impairment based only on puretone threshold average: 0-41 42-48 49-55 56-62 63-69 70-76 77-83 84-90 91-97 98-104 105+ I II III IV V VI VII VIII IX X XI The findings for each ear from either Table VI or Table VIA, are then applied to Table VII (Percentage Evaluations for Hearing Impairment) to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment of each ear. The horizontal rows represent the ear having the better hearing and the vertical columns the ear having the poor hearing. The percentage evaluation is located at the point where the rows and column intersect. 38 C.F.R. § 4.85(e). Table VII Percentage evaluation for hearing impairment (diagnostic code 6100) Poorer Ear XI 100* X 90 80 IX 80 70 60 VIII 70 60 50 50 VII 60 60 50 40 40 VI 50 50 40 40 30 30 V 40 40 40 30 30 20 20 IV 30 30 30 20 20 20 10 10 III 20 20 20 20 20 10 10 10 0 II 10 10 10 10 10 10 10 0 0 0 I 10 10 0 0 0 0 0 0 0 0 0 XI X IX VIII VII VI V IV III II I Analysis The Veteran contends his service-connected bilateral hearing loss is more severe than is reflected by the currently assigned non-compensable rating. He asserts that he has to ask people to repeat themselves and has to look at them in order to understand what they are saying. See June 2015 Notice of Disagreement. He also asserts that he cannot hear or understand anyone when there is background noise. See July 2016 Form 9. A December 2014 VA treatment record does not contain an audiogram but provides that pure tone audiometry testing revealed within normal limits sloping to moderately severe sensorineural hearing loss in the right ear, and within normal limits sloping to moderate sensorineural with a conductive component at 1000 Hz in the left ear. The Veteran underwent a VA examination in May 2015, pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 20 30 45 40 34 LEFT 25 40 55 55 44 Speech audiometry revealed speech recognition ability of 92 percent in both the right ear and the left ear. The examiner diagnosed sensorineural hearing loss in both ears. He indicated that the puretone thresholds were valid for rating purposes and that use of word recognition scores was appropriate. Applying these results to Table VI results in a designation of Level I for the right ear and Level I for the left ear. The Board acknowledges the Veteran's contention that the May 2015 VA examination was inadequate because it was under controlled conditions and not real-life situations. See June 2015 NOD. However, in Doucette v. Shulkin, the Court recognized the diagnostic criteria for hearing loss sufficiently contemplate the functional effects of decreased hearing and difficulty understanding speech in an everyday work environment because the audiometric tests are designed to measure precisely these effects. Doucette v. Shulkin, 28 Vet. App. 366, 369 (2017). The Veteran does not allege the audiometric test itself was improperly administered. Accordingly, the Board finds the May 2015 VA examination is adequate for rating purposes. Pursuant to the Board's May 2021 remand, the Veteran was afforded another VA audiological evaluation in July 2021. His puretone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 25 35 45 40 36.25 LEFT 25 40 55 55 43.75 Speech audiometry revealed speech recognition ability of 88 percent in the right ear and of 90 in the left ear. The examiner diagnosed sensorineural hearing loss in both ears. She indicated that the puretone thresholds were valid for rating purposes and that use of word recognition scores was appropriate. Applying these results to Table VI results in a designation of Level II for the right ear and Level II for the left ear. Under Table VII (38 C.F.R. § 4.85), the numeric designation II in the better ear and II in the poorer ear requires the assignment of a 0 percent evaluation under Diagnostic Code 6100. In sum, for the entire period of appeal, results of the VA examinations and VA treatment records translate to, at worst, Level II hearing loss in the right and left ear. This level of hearing loss warrants a noncompensable (zero percent) rating under Table VII of the rating schedule. Therefore, a compensable schedular rating is not warranted under Diagnostic Code 6100 at any point during the period of appeal. See 38 C.F.R. §§ 4.85, 4.86 Diagnostic Code 6100. While the Board acknowledges the hearing difficulties that the Veteran has reported, including difficulty communicating and holding conversations with others when there is background noise, the ratings for hearing loss are based on a mechanical application of the tables provided by law. The Board has no discretion in this matter and must predicate its determination on the basis of the results of the audiology studies of record. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Thus, based on the foregoing, the Board finds that the audiological testing of record does not support a compensable schedular rating for the Veteran's bilateral hearing loss. As a preponderance of the evidence is against a compensable rating for bilateral hearing loss, the Veteran's claim is denied. Rebecca N. Poulson Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Romero-Sanchez, 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.