Citation Nr: 21071534 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 12-26 831 DATE: November 30, 2021 ORDER A compensable rating for bilateral hearing loss is denied. REMANDED Service connection for a heart disability is remanded. FINDING OF FACT The Veteran's bilateral hearing loss is manifested by hearing acuity of no worse than Level I in both ears. CONCLUSION OF LAW The criteria for a compensable rating for bilateral hearing loss are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code (DC) 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the United States Marine Corps from June 1968 to April 1969. A November 2020 Board of Veterans' Appeals (Board) decision denied the claims for an increased rating for bilateral hearing loss as well as service connection for a heart disability. The Veteran appealed the November 2020 Board decision to the United States Court of Appeals for Veteran's Claims (Court). In a June 2021 order, the Court vacated the November 2020 Board decision and remanded the matter for action consistent with the terms of a Joint Motion for Remand (JMR). Bilateral Hearing Loss Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, present level of disability is the primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Evaluations of defective hearing range from 0 to 100 percent. This is based on impairment of hearing acuity as measured by the results of controlled speech discrimination tests, together with the average hearing threshold level as measured by pure tone audiometric tests in frequencies of 1000, 2000, 3000, and 4000 Hertz. To evaluate the degree of disability from service-connected hearing loss, the rating schedule establishes eleven auditory acuity levels ranging from numeric Level I for essentially normal acuity, through numeric Level XI for profound deafness. 38 C.F.R. § 4.85, Tables VI and VII, DC 6100. Table VI in 38 C.F.R. § 4.85 is used to determine the numeric designation of hearing impairment based on the pure tone threshold average from the speech audiometry test and the results of the Maryland CNC speech discrimination test. The vertical lines in Table VI represent nine categories of the percentage of discrimination based on the controlled speech discrimination test. The horizontal columns in Table VI represent categories of decibel loss based on the pure tone audiometry test. The numeric designation of impaired hearing (Levels I through XI) is determined for each ear by intersecting the vertical row corresponding to the percentage of discrimination and the horizontal column corresponding to the pure tone decibel loss. An exceptional pattern of hearing impairment occurs when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more. 38 C.F.R. § 4.86(a). In that situation, 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. The percentage evaluation is derived from Table VII in 38 C.F.R. § 4.85 by intersecting the vertical column corresponding to the numeric designation for the ear having the better hearing acuity and the horizontal row corresponding to the numeric designation level for the ear having the poorer hearing acuity. The Veteran currently has a noncompensable rating for his bilateral hearing loss effective May 2010. The Veteran contends he is entitled to a higher rating. VA audiometric testing in September 2010 revealed the following: HERTZ 1000 2000 3000 4000 Avg RIGHT 75 70 60 60 66.25 LEFT 25 35 35 40 33.75 Speech discrimination scores were 88 percent in the right ear and 96 percent in the left. Applying the results of the September VA examination to Table VI reflects that the Veteran has Level V hearing loss in the right ear and Level I hearing loss in the left. These results when applied to Table VII result in a noncompensable disability rating. 38 C.F.R. § 4.85. The record also contains a September 2013 audiology evaluation. This evaluation noted puretone threshold averages of 95 and 63 in the right and left ear respectively as well as speech recognition threshold of 70 percent in the right ear and 40 percent in the left. However, the audiologist also noted that the Veteran's responses were inconsistent and therefore, puretone threshold averages are not reported. The audiologist again noted that the audiogram was not scanned into the record due to inconsistent results. Therefore, the Board finds these inconsistent results give this audiological evaluation little probative weight. The Veteran underwent another VA examination in November 2018 and audiometric testing revealed the following: HERTZ 1000 2000 3000 4000 Avg RIGHT 55 60 60 65 60 LEFT 15 25 45 50 33.75 Speech discrimination scores were 96 percent in both ears. Applying the results of the November VA examination to Table VI reflects that the Veteran has Level IV hearing loss in the right ear and Level I hearing loss in the left. These results when applied to Table VII result in a noncompensable disability rating. 38 C.F.R. § 4.85. Based on the above audiometric test results and a mechanical application of the rating criteria, the Board finds that the Veteran is not entitled to a greater 10 percent rating for his bilateral hearing loss. The Board expressly acknowledges its consideration of the lay evidence of record when adjudicating this claim, including the Veteran's testimony that he has difficulty understanding speech. The Veteran is competent to report difficulty with his 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. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). Accordingly, the preponderance of the evidence is against finding the Veteran's hearing loss warrants a compensable rating. Because the preponderance of the evidence is against this claim, the benefit-of-the-doubt rule does not apply. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. As such, the claim for a rating greater than 10 percent for bilateral hearing loss is denied. REASONS FOR REMAND Heart Disability Pursuant to the CAVC remand, the Board finds that remand is warranted to obtain medical records currently not associated with the Veteran's file. The record indicates that the Veteran was treated at Stern Cardiology from April 2019 to May 2019 and at St. Francis Hospital in November 2016 and in May 2018, however, to date, these records have not been obtained. As such, remand is necessary to obtain these medical records. The matter is REMANDED for the following action: Contact the Veteran and afford him the opportunity to identify by name, address, and dates of treatment or examination any relevant private medical treatment records for his heart disability, including Stern Cardiology and St. Francis Hospital. Attempt to secure any identified records. JOHN Z. JONES Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Jorge Barroso, 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.