Citation Nr: 21077291 Decision Date: 12/29/21 Archive Date: 12/29/21 DOCKET NO. 19-11 280 DATE: December 29, 2021 ORDER An initial compensable rating for bilateral hearing loss is denied. VETERAN'S CONTENTIONS The Veteran contends that he is entitled to a compensable rating for his bilateral hearing loss because he cannot hear without his hearing aids, and he cannot wear his hearing aids at work because it enhances the noises at work, such as the noise associated with saws. See January 2021 Board Hearing Trans. pg. 7. The Veteran also stated that he cannot wear his hearing aids at night because they cause feedback noise. Id. Lastly, the Veteran stated that his auditory acuity fluctuates day to day. Id. at 8. FINDING OF FACT Throughout the period on appeal, the Veteran had no more than Level I hearing loss in his right ear and Level IX in his left ear. CONCLUSION OF LAW The criteria for a compensable rating for the Veteran's bilateral hearing loss are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.85, 4.86(a), Diagnostic Code 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1974 to July 1978. This matter comes before the Board of Veteran's Appeal (Board) on appeal from a July 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran selected a hearing with a Veterans Law Judge on his March 2019 VA Form 9. In January 2021, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. In August 2021, the Board remanded the appeal for additional development. Increased Rating for the Veteran's Hearing Loss Under the VA rating schedule, hearing impairment is evaluated based on audiological testing, including a puretone audiometry test and the Maryland CNC controlled speech discrimination test. 38 C.F.R. § 4.85. To evaluate the degree of disability from defective hearing, the rating schedule establishes eleven auditory acuity levels from level I for essentially normal acuity through level XI for profound deafness. 38 C.F.R. § 4.85. Table VI is used to assign a Roman numeral designation for hearing impairment based on a combination of the percent of speech discrimination and the pure tone threshold average. 38 C.F.R. § 4.85(b). The puretone threshold average is the average of the puretone thresholds, in decibels, at 1000, 2000, 3000 and 4000 Hertz [Hz], shown on a puretone audiometry test. 38 C.F.R. § 4.85. When there is no speech discrimination testing, Table VIa is used, based on the puretone threshold average alone. 38 C.F.R. § 4.85(c). Table VII is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment for each ear. 38 C.F.R. § 4.85(e). Under 38 C.F.R. § 4.86, when the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hz) is 55 decibels or more, the rating specialist will determine the Level designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. 38 C.F.R. § 4.86(a). Further, when the average puretone threshold is 30 decibels at 1000 Hz, and 70 decibels or more at 2000 Hz, the rating specialist will determine the Level 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 Level. 38 C.F.R. § 4.86(b). During the period on appeal, the Veteran underwent VA audiological examinations on four occasions: in June 2017, May 2019, July 2019, and September 2021. The audiometric testing results from the June 2017 audiological examination revealed puretone thresholds of 15, 25, 35, and 35 decibels in the right ear and 65, 65, 90, and 70 decibels in the left ear at each of the specified frequencies. Notably, those findings support an exceptional pattern of hearing impairment for the left ear. 38 C.F.R. § 4.86. The puretone threshold average was 27.5 decibels in the right ear and 72.5 decibels in the left ear. The Maryland CNC speech recognition scores listed on the examination were 96 percent for the right ear and 98 percent for the left ear. Applying the foregoing results for the right ear to Table VI yields a finding of Level I hearing loss in the right ear. Additionally, applying the foregoing results for the left ear to Table VIA, given the exceptional pattern of hearing loss, yields a finding of Level VI hearing loss in the in the left ear. When hearing loss is at Level I in one ear and Level VI in the other, 0 percent rating is assigned under Table VII. 38 C.F.R. § 4.85. The Veteran next underwent audiological evaluation in May 2019. The audiometric testing results from this audiological examination revealed puretone thresholds of 15, 25, 40, and 40 decibels in the right ear and 75, 80, 85, and 70 decibels in the left ear at each of the specified frequencies. As noted above for the left ear, those findings support an exceptional pattern of hearing impairment in the left ear. 38 C.F.R. § 4.86. The puretone threshold average was 30 decibels in the right ear and 77.5 decibels in the left ear. The speech discrimination scores listed on the examination were 100 percent for both ears. Applying the foregoing results for the right ear to Table VI yields a finding of Level I hearing loss in the right ear. Additionally, applying the foregoing results for the left ear to Table VIA, given the exceptional pattern of hearing loss, yields a finding of Level VII hearing loss in the in the left ear. When hearing loss is at Level I hearing loss in the right ear and Level VII hearing loss in the left ear, a 0 percent rating is assigned under Table VII. The Veteran next underwent audiological evaluation in July 2019. The audiometric testing results from this audiological examination revealed puretone thresholds of 30, 25, 40, and 45 decibels in the right ear and 85, 80, 85, and 100 decibels in the left ear at each of the specified frequencies. As noted above for the left ear, those findings support an exceptional pattern of hearing impairment in the left ear. 38 C.F.R. § 4.86. The puretone threshold average was 35 decibels in the right ear and 88 decibels in the left ear. The speech discrimination scores listed on the examination were 100 percent for both ears. Applying the foregoing results for the right ear to Table VI yields a finding of Level I hearing loss in the right ear. Additionally, applying the foregoing results for the left ear to Table VIA, given the exceptional pattern of hearing loss, yields a finding of Level VIII hearing loss in the in the left ear. When hearing loss is at Level I hearing loss in the right ear and Level VIII hearing loss in the left ear, a 0 percent rating is assigned under Table VII. The Veteran next underwent audiological evaluation in September 2021. The audiometric testing results from this audiological examination revealed puretone thresholds of 30, 40, 45, and 50 decibels in the right ear and 90, 90, 95, and 100 decibels in the left ear at each of the specified frequencies. As noted above for the left ear, those findings support an exceptional pattern of hearing impairment in the left ear. 38 C.F.R. § 4.86. The puretone threshold average was 41 decibels in the right ear and 94 decibels in the left ear. The speech discrimination scores listed on the examination were 96 percent for the right ear and 100 percent for the left ear. Applying the foregoing results for the right ear to Table VI yields a finding of Level I hearing loss in the right ear. Additionally, applying the foregoing results for the left ear to Table VIA, given the exceptional pattern of hearing loss, yields a finding of Level IX hearing loss in the in the left ear. When hearing loss is at Level I hearing loss in the right ear and Level IX hearing loss in the left ear, a 0 percent rating is assigned under Table VII. The Board also notes that the Veteran underwent private audiological examination in January 2018. The audiometric testing results from the private January 2018 audiological examination revealed puretone thresholds of 20, 30, 55, and 40 decibels in the right ear and 70, 75, 90, and 90 decibels in the left ear at each of the specified frequencies. The puretone threshold average was 36.25 decibels in the right ear and 81.25 decibels in the left ear. However, it is unclear whether the Maryland CNC word list was used for the speech audiometry test, which is required for rating purposes under 38 C.F.R. § 4.85. Even if the Maryland CNC test was used, however, the criteria for a rating higher than 0 percent would not be met. These results provide for Level I hearing loss in the right ear, and Level VLL in the left, assuming that the Maryland CNC test was used. The Board is sympathetic to Veteran's contention he cannot hear without his hearing aids, but he cannot wear his hearing aids at work because it enhances the noises at work, like saws. See January 2021 Board Hearing Trans. pg. 7. Although the Board is sympathetic to the functional effects of his hearing loss disability, the Board finds that the schedular criteria were created to contemplate this type of functional effect. See Osweiler v. McDonough, 20-4072 (Nov. 30, 2021). Therefore, the Board finds that it must follow the requirements listed in 38 C.F.R. § 4.85 for rating purposes. Accordingly, in the absence of any additional medical evidence showing a more severe hearing disability, a disability rating in excess of 0 percent for bilateral hearing loss is not warranted. S.C. Krembs Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Foster, 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.