Citation Nr: 21071692 Decision Date: 12/01/21 Archive Date: 12/01/21 DOCKET NO. 16-36 306 DATE: December 1, 2021 ORDER Entitlement to an initial compensable disability rating for bilateral hearing loss is denied. FINDING OF FACT The Veteran's audiometric examinations correspond to no greater than a level IV hearing loss in the right ear and a level II hearing loss in the left ear. CONCLUSION OF LAW The criteria for entitlement to an initial compensable disability rating for bilateral hearing loss have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.383, 4.1, 4.7, 4.85 (Diagnostic Code 6100), 4.86. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from August 1970 to March 1972. This matter comes before the Board of Veterans' Appeals (Board) on an appeal from a September 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously remanded in August 2019 and June 2021 to obtain a current VA examination of the Veteran's hearing loss. The Veteran did not appear for a scheduled August 2019 examination, but the examination was rescheduled following the June 2021 remand. A current audiological examination was obtained in July 2021. The Board finds that there has been substantial compliance with its remand directives and will proceed to a determination. Stegall v. West, 11 Vet. App. 268, 271 (1998) (Board remand confers a right on a claimant to compliance with the remand order); Dyment v. West, 13 Vet. App. 141, 147 (1999) (clarifying that substantial compliance with Board remand is required). Analysis Neither the Veteran nor his representative raise any remaining issues with the duty to notify or duty to assist with regard to the Veteran's claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board...to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). The VA's Schedule for Rating Disabilities (Rating Schedule) determines a Veteran's disability rating. 38 C.F.R. Part 4. As far as can be practicably determined, the percentage ratings contained in the Ratings Schedule represent the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (Vet. App. 1991). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. 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 in Roman numerals, ranging from level I for essentially normal acuity, through level XI for profound deafness. Table VI determines this Roman numeric designation for each ear based upon test results consisting of puretone thresholds and Maryland CNC test speech discrimination scores. Table VII is then applied to determine the appropriate rating for hearing impairment. See id. Where there is an exceptional pattern of hearing impairment, a rating based on puretone thresholds alone may be assigned. 38 C.F.R. § 4.85, 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. 38 C.F.R. § 4.86(a). It may also be applied 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(b). In the second case, the Roman numeral will then be elevated to the next higher Roman numeral. See id. When an exceptional pattern applies, the method producing the highest Roman numeral should be used. See id. 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 (Vet. App. 1992). The Veteran was afforded a VA examination of his hearing loss in accordance with the standards outline in 38 C.F.R. § 4.85 in August 2013. Audiological examination puretone thresholds, in decibels, were as follows: HERTZ EAR 1000 2000 3000 4000 RIGHT 25 20 50 55 LEFT 15 20 45 70 The average of the puretone thresholds findings at 1000, 2000, 3000, and 4000 Hertz was 37.5 decibels in the right ear and 37.5 decibels in the left ear. The speech recognition scores were 96 percent in the right ear and 96 percent in the left ear. Applying these test results to Table VI of the Rating Schedule results in a Roman numeric designation of level I for the right ear and level I for the left ear. 38 C.F.R. § 4.85, Table VI. Applying the Roman numeric designations of level I and level I to Table VII, the result is a noncompensable rating for the Veteran's bilateral hearing loss. 38 C.F.R. § 4.85, Table VII, Diagnostic Code 6100. The Veteran was last afforded a VA examination of his hearing loss in accordance with the standards outlined in 38 C.F.R. § 4.85 in July 2021. Audiological examination puretone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 40 50 65 75 LEFT 30 45 65 75 The average of the puretone thresholds findings at 1000, 2000, 3000, and 4000 Hertz was 57.5 decibels in the right ear and 53.75 decibels in the left ear. The speech recognition scores were 76 percent in the right ear and 84 percent in the left ear. Applying the test results to Table VI of the Rating Schedule results in a Roman numeric designation of level IV for the right ear and level II for the left ear. 38 C.F.R. § 4.85, Table VI. Applying the Roman numeric designations of level IV and level II to Table VII, the result is a noncompensable rating for the Veteran's bilateral hearing loss. 38 C.F.R. § 4.85, Table VII, Diagnostic Code 6100. The Board finds there are no other audiometric test results of record which comply with the requirements of 38 C.F.R. § 4.85 for rating purposes that indicate the Veteran's hearing was worse than assessed by the VA examiners during the relevant period at issue. Neither the Veteran nor his representative identified any additional evidence in support of a higher rating based on audiometric evaluations. The schedular rating criteria for hearing loss contemplate the functional effects of decreased hearing and difficulty understanding speech in an everyday environment. Doucette v. Shulkin, 28 Vet. App. 366, 369 (2017). Accordingly, as the evidence of record does not support a finding that the Veteran's hearing loss was more severe than currently rated during the period at issue, the Veteran's claim for higher disability ratings for his bilateral hearing loss must be denied. See Lendenmann v. Principi, 3 Vet. App. 345 (Vet. App. 1992). K. A. KENNERLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Maisel, S. Alexander 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.