Citation Nr: 21072272 Decision Date: 12/02/21 Archive Date: 12/02/21 DOCKET NO. 16-58 736 DATE: December 2, 2021 ORDER Entitlement to an increased, compensable rating for bilateral hearing loss is denied. FINDING OF FACT The Veteran's bilateral hearing loss approximates a pure tone threshold average of no higher than 31 decibels for the right ear and 33 decibels for the left ear, with speech discrimination scores, using the Maryland CNC word list, of no lower than 88 percent for the right ear and 88 percent for the left ear. CONCLUSION OF LAW The criteria for an increased, compensable rating for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.85, 4.86, DC 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from April 1978 to July 1986, and from January 1991 to April 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office in Houston, Texas. In December 2018 and July 2021, the Board remanded this matter to the Regional Office for additional evidentiary developments. Increased Rating Disability ratings are determined by application of the criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating applies. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is to be considered when making disability evaluations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran asserts entitlement to a higher, increased rating, than currently assigned, for her service-connected bilateral hearing loss. She is currently rated for service-connected bilateral hearing loss at a zero, non-compensable rating. Hearing loss is evaluated under 38 C.F.R. § 4.85, DC 6100 (2017). In evaluating hearing loss, disability ratings are derived from a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are performed. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Hearing loss disability evaluations range from noncompensable to 100 percent based on organic impairment of hearing acuity, as measured by controlled speech discrimination tests using the Maryland CNC word list, in conjunction with the average hearing threshold, measured by puretone audiometric tests in the frequencies 1,000, 2,000, 3,000 and 4,000 cycles per second. 38 C.F.R. § 4.85, DC 6100. The rating schedule establishes eleven auditory acuity levels designated from Level I, for essentially normal hearing acuity, through Level XI for profound deafness. See id. VA audiometric examinations are generally conducted using a controlled speech discrimination test together with the results of a puretone audiometry test. Id. Table VI in 38 C.F.R. § 4.85 is then used to determine the numeric designation of hearing impairment based on the puretone threshold average derived from the audiometry test, and from the results of the speech discrimination test. Given the above-mentioned criteria, the Veteran was afforded examinations for an assessment of the severity of her bilateral hearing loss. In a July 2016 VA examination for hearing loss, audiometric findings indicate that pure tone thresholds for the right ear, in dB, were 25dB at 1000Hz; 30dB at 2000Hz; 30dB at 3000Hz; 40dB at 4000 Hz, with an average pure tone threshold of 31dB. Pure tone thresholds for the left ear, in dB, were 20dB at 1000Hz; 30dB at 2000Hz; 35dB at 3000Hz; and 40dB at 4000Hz, with an average pure tone threshold of 31dB. Speech discrimination testing revealed speech recognition ability of 88 percent in the right ear and 88 percent in the left ear. Applying these results to Table VI in 38 C.F.R. § 4.85, the pure tone threshold average of 31dB and a speech discrimination score of 88 percent for the right ear results in Level II for the right ear. Likewise, applying these results to the Table VI chart, a pure tone threshold average of 31dB and a speech discrimination score of 88 percent for the left ear results in a Level II for the left ear. Applying both results to the Table VII chart, a Level II for the right ear, combined with a Level II for the left ear, results in a 0 percent rating evaluation. Although the claims file also includes a November 2016 private audiological evaluation, the Board finds that this audiologic evaluation has no probative value, as the findings do not provide any results for a speech test that is based on the Maryland CNC word list, as required by 38 C.F.R. § 4.85(a). In the most recent, September 2021 VA examination for hearing loss, audiometric findings indicate that pure tone thresholds for the right ear, in dB, were 20dB at 1000Hz; 15dB at 2000Hz; 25dB at 3000Hz; 25dB at 4000 Hz, with an average pure tone threshold of 21dB. Pure tone thresholds for the left ear, in dB, were 25dB at 1000Hz; 25dB at 2000Hz; 30dB at 3000Hz; and 50dB at 4000Hz, with an average pure tone threshold of 33dB. Speech discrimination testing revealed speech recognition ability of 100 percent in the right ear and 100 percent in the left ear. Applying these results to Table VI in 38 C.F.R. § 4.85, the pure tone threshold average of 21dB and a speech discrimination score of 100 percent for the right ear results in Level I for the right ear. Likewise, applying these results to the Table VI chart, a pure tone threshold average of 33dB and a speech discrimination score of 100 percent for the left ear results in a Level I for the left ear. Applying both results to the Table VII chart, a Level I for the right ear (with the right ear being the poorer ear), combined with a Level I for the left ear, results in a 0 percent rating evaluation. Although the Veteran asserts that her hearing has progressively become worse there are no other audiometric results that reflect a worsening hearing impairment. Although the Veteran also asserted that she had an auditory examination with a civilian audiologist, who informed her that she has significant bilateral hearing loss, see September 2016 Notice of Disagreement, she has not provided any supporting, additional evidence from a private/civilian audiologist, even though the Regional Office's requested for an authorization and release from the Veteran, for purposes of obtaining all outstanding private treatment records. See September 2019 Section 5103 Development Letter; see also April 2020 Statement in Support of Claim; see too, June 2020 Statement in Support of Claim. Rather, and contrary to the Veteran's above-mentioned assertions of a worsening hearing impairment, the above-mentioned, September 2021 audiometric results are suggestive of a slight improvement in the Veteran's hearing, based on the mechanical application of the rating schedule for hearing loss. However, this improvement in the Veteran's bilateral hearing loss is not necessarily dispositive of a claim for an increase, as this is not a criterion for evaluating a rating increase for hearing loss. Rather, the rating criteria for hearing loss contemplate the functional effects of decreased hearing and difficulty understanding speech in an everyday work environment, as these are the effects that VA's audiometric tests are designed to measure. Doucette v. Shulkin, 28 Vet. App. 377 (2017). In applying this mechanical rating criteria, however, an increased, compensable rating is not warranted because audiometric findings for the bilateral ear reflect a zero percent, non-compensable rating, pursuant to hearing loss measurements in the relevant tables, under 38 C.F.R. §§ 4.85. Thus, as the preponderance of the evidence is against this claim, entitlement to an increased, compensable rating for bilateral hearing loss must be denied. M. Tenner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board V-N. Pratt 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.