Citation Nr: 21076728 Decision Date: 12/27/21 Archive Date: 12/27/21 DOCKET NO. 16-53 785 DATE: December 27, 2021 ORDER Entitlement to a compensable disability rating for right ear hearing loss is denied. FINDING OF FACT The Veteran's hearing loss has been manifested by at most Level V severity of impairment in the service-connected right ear. CONCLUSION OF LAW The criteria for a compensable rating for right ear hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code (DC) 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from March 1966 to March 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2016 rating decision of the Department of Veterans Affairs (VA) RO. An August 2019 Board decision denied entitlement to a higher rating for right ear hearing loss. The Veteran appealed this determination to the United States Court of Appeals for Veterans Claims (Court). In November 2020, the Court granted a Joint Motion for Partial Remand and remanded the claim to the Board for action consistent with the Joint Motion. The Board remanded this claim in April 2021 to the agency of original jurisdiction (AOJ) for further development. The Board's remand directives have been substantially completed. See Stegall v. West, 11 Vet. App. 268 (1998). This appeal has been advanced on the docket. 38 C.F.R. § 20.902. Increased ratings Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Entitlement to a higher rating for right ear hearing loss 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 puretone audiometric testing at frequencies of 1000, 2000, 3000 and 4000 cycles per second. "Puretone threshold average" is the average of the puretone thresholds at 1000, 2000, 3000 and 4000 Hertz. 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. The rating schedule establishes eleven auditory acuity levels, designated from level I for essentially normal hearing acuity, through level XI for profound deafness. The horizontal rows in TABLE VI 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 puretone audiometry test. The Roman numeral designation is located at the point where the percentage of speech discrimination and puretone threshold average intersect. 38 C.F.R. § 4.85. If impaired hearing is service-connected in only one ear, in order to determine the percentage evaluation from Table VII, the nonservice-connected ear will be assigned a Roman numeral designation for hearing impairment of I, subject to the provisions of § 3.383. 38 C.F.R. § 4.85(f). Under certain exceptional patterns of hearing impairment, auditory acuity levels may be calculated using either TABLE VI, as described above, or TABLE VIA, which derives a Roman numeral designation based solely on the puretone audiometry test. 38 C.F.R. § 4.86. The TABLE that produces the higher Roman numeral will be used. Id. These auditory acuity levels are entered into TABLE VII of the rating schedule to determine the percentage disability rating. 38 C.F.R. § 4.85. Turning to the evidence of record, the Veteran underwent a VA audiological examination in August 2016. On examination, puretone thresholds (in decibels) and speech discrimination scores were as follows: Hertz 1000 2000 3000 4000 Average Right ear 40 40 50 65 48.75 As shown in the table, objective testing produced a puretone average of 48.75 decibels in the right ear. Maryland CNC speech discrimination score was recorded as 94 percent. No exceptional patterns of hearing impairment were noted, and the examiner did not indicate that the speech discrimination test was not appropriate. As such, right ear examination results do not meet the criteria of § 4.86 and the application of TABLE VIA to those results is not warranted. The Board notes that the Veteran is not service-connected for left ear hearing loss. As noted, if impaired hearing is service-connected in only one ear, in order to determine the percentage evaluation from Table VII, the non-service-connected ear will be assigned a Roman Numeral designation for hearing impairment of I. See 38 C.F.R. § 4.85. Applying the right ear results TABLE VI yields a numeric designation of Level I hearing impairment. Entering Level I hearing impairment for the right ear and Level I hearing impairment for the non-service-connected left ear into TABLE VII yields a 0 percent rating. 38 C.F.R. § 4.85, DC 6100. Pursuant to the April 2021 Board's remand directives, the Veteran underwent another VA audiological examination in June 2021. On examination, puretone thresholds (in decibels) and speech discrimination scores were as follows: Hertz 1000 2000 3000 4000 Average Right ear 65 60 75 75 68.75 As shown in the table, objective testing produced a puretone average of 68.75 decibels in the right ear. Maryland CNC speech discrimination score was recorded as 96 percent in the right ear. Applying the right ear results TABLE VI yields a numeric designation of Level I hearing impairment. However, the Board finds that exceptional patterns of hearing impairment were noted because the Veteran's puretone threshold at each of the four specified frequencies was recorded as more than 55 decibels. See 38 C.F.R. § 4.86. As such, special rating for these patterns is applicable, and using TABLE VIA results in a numeric designation of Level V hearing impairment, which is more favorable than a numeric designation of Level I. Entering Level V hearing impairment for the right ear and Level I hearing impairment for non-service-connected left ear into TABLE VII yields a 0 percent rating. 38 C.F.R. § 4.85, DC 6100. The Veteran's treatment records during the appeal period are consistent with the August 2016 and June 2021 VA examinations findings. Based on review of all of the evidence of record, the Veteran's right ear hearing loss does not approximate the criteria more nearly corresponding to a compensable rating. The arguments of the Veteran's representative are acknowledged. See November 2021 Written Brief Presentation. The Board does not discount the Veteran's assertion of the severity and functional effects of his right ear hearing loss; however, schedular disability ratings for hearing loss are based on the results of the objective audiological studies of record. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Moreover, 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). The Veteran's right ear hearing loss does not produce any other functional effects not contemplated by the rating schedule. Id. The Board also acknowledges the arguments of the Veteran and his representative with respect to the competency of the August 2016 VA examiner. Pursuant to the April 2021 Board's remand directives, the AOJ confirmed that the August 2016 VA examiner is a state-licensed audiologist, specializing in speech pathology and audiology. See August 2021 Correspondence with license details. As a state-licensed expert in their field, the August 2016 VA examiner was competent to test and determine the level of the Veteran's right ear hearing impairment. See 38 C.F.R. § 4.85(a). As such, the Board finds the August 2016 VA examination report probative to address the Veteran's claim. In sum, a compensable rating for right ear hearing loss is not warranted. The Board has considered the use of staged ratings; however, the Veteran's right ear hearing loss is rated noncompensable for the entire appeal period and at no point during that period has it more nearly approximated the criteria corresponding to a higher rating. Accordingly, the application of a staged rating is not warranted. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 126-27 (1999). Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. Doucette, supra. Thus, the appeal is denied. C. CRAWFORD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Kuzniar, 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.