Citation Nr: 21072069 Decision Date: 12/02/21 Archive Date: 12/02/21 DOCKET NO. 17-30 244 DATE: December 2, 2021 ORDER A compensable disability rating for bilateral hearing loss is denied. FINDING OF FACT Audiometric testing revealed Level I and Level II hearing acuity throughout the appeal period. CONCLUSION OF LAW The criteria for a compensable disability rating for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.10, 4.85, Diagnostic Code 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1967 to October 1969. This matter comes before the Board of Veterans' Appeals (Board) from a November 2015 Agency of Original Jurisdiction (AOJ) decision. The Veteran presented sworn testimony during a videoconference hearing before the undersigned Veterans Law Judge in April 2021. In April 2021, the Board remanded for further evidentiary development based upon the Veteran's hearing testimony. Such development having been satisfactorily accomplished, the matter has been returned to the Board for further appellate review. The Veteran is seeking a compensable disability rating for service-connected bilateral hearing loss. Disability evaluations are assigned to reflect levels of current disability. The appropriate rating is determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Hearing loss ratings range from noncompensable to 100 percent based on organic impairment of hearing acuity, as measured by controlled speech discrimination tests in conjunction with average hearing thresholds determined by pure tone audiometric testing at frequencies of 1000, 2000, 3000 and 4000 cycles per second. "Pure tone threshold average" is the sum of the pure tone thresholds at 1000, 2000, 3000 and 4000 Hertz divided by four. This average is used in all cases (including those in § 4.86) to determine the Roman numeral designation for hearing impairment from Table VI or VIa. 38 C.F.R. § 4.85, Diagnostic Code 6100. The rating schedule establishes eleven auditory acuity levels, designated from Level I for essentially normal hearing acuity, through Level XI for profound deafness. 38 C.F.R. § 4.85. The horizontal rows in Table VI (set forth in 38 C.F.R. § 4.85) represent nine categories of the percentage of discrimination based on the controlled speech discrimination test. The vertical columns in Table VI represent nine categories of decibel loss based on the pure tone audiometry test. The Roman numeral designation is located at the point where the percentage of speech discrimination and pure tone threshold average intersect. 38 C.F.R. §§ 4.85, 4.87. In addition, 38 C.F.R. § 4.86 applies to exceptional patterns of hearing impairment. Under its provisions, when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 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. When the pure tone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 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 numeral. 38 C.F.R. § 4.86. "(D)isability 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). The instant appeal arises from a claim for an increased rating filed in July 2015. The Veteran underwent a VA audiological examination for purposes of compensation in October 2015. At that time, his pure tone thresholds, measured in decibels, and the Maryland CNC word recognition score were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 25 35 65 80 LEFT 20 20 30 60 70 The right ear average was calculated as 51 decibels and the left ear average was 45 decibels. Speech audiometry revealed speech recognition ability of 86 percent in the right ear and of 84 percent in the left ear. The testing audiologist deemed that the test results were valid for rating purposes. A diagnosis of bilateral sensorineural hearing loss was rendered. The Veteran stated that he "can't hear most of the time." Calculating the Veteran's VA hearing score utilizing Table VI at 38 C.F.R. § 4.85 yields a score of Roman Numeral II in the right ear, and Roman Numeral II in the left ear. During the April 2021 Board hearing, the Veteran testified that he was having trouble understanding his family speak even when he was wearing his hearing aids. His perception was that his hearing acuity had worsened since the 2015 VA examination. Pursuant to the Board's remand, the Veteran underwent another VA audiological examination for purposes of compensation in May 2021. At that time, his pure tone thresholds, measured in decibels, and the Maryland CNC word recognition score were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 20 35 65 75 LEFT 25 25 35 60 70 The right ear average was calculated as 49 decibels and the left ear average was 48 decibels. Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 96 percent in the left ear. The audiologist certified that the test results were valid for rating purposes and assigned a diagnosis of bilateral sensorineural hearing loss. Calculating the Veteran's VA hearing score utilizing Table VI at 38 C.F.R. § 4.85 yields a score of Roman Numeral I in the right ear, and Roman Numeral I in the left ear. VA audiology clinic notes dated throughout the appeal period reflect that the Veteran wears VA-provided hearing aids, for which he receives regular service. Review of these test results shows that the Veteran's hearing acuity may have increased between 2015 and 2021. Regardless, his hearing acuity remained at a level warranting a noncompensable disability rating over that time. Entering the resulting bilateral numeric designation of Level II for the right ear and Level II for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a zero percent disability rating under Diagnostic Code 6100. Similarly, designations of Level I and Level I also equates to a zero percent disability rating under Diagnostic Code 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 is not shown at any point during the appeal period. Based on this analysis, a compensable rating for the Veteran's bilateral hearing loss is not warranted. The Board expressly acknowledges its consideration of the lay evidence of record when adjudicating this claim, including the Veteran's reports of difficulty hearing and comprehending in multiple life situations. 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). The rating criteria contemplate speech reception thresholds and ability to hear spoken words on Maryland CNC testing. The functional impact that the Veteran describes, 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 preponderance of the evidence is against a higher disability rating for bilateral hearing loss; the appeal is denied. T. MAINELLI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Harter, Heather J. 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.