Citation Nr: 21077418 Decision Date: 12/29/21 Archive Date: 12/29/21 DOCKET NO. 17-04 634 DATE: December 29, 2021 ORDER Entitlement to a compensable rating for bilateral hearing loss is denied. FINDING OF FACT The preponderance of the evidence is against the assignment of a compensable disability rating for bilateral hearing loss. CONCLUSION OF LAW The criteria for a compensable rating for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.85, Diagnostic Code (Code) 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1967 to January 1969. This matter is before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In September 2020, the Veteran testified before the undersigned Veterans Law Judge at a Virtual hearing. Subsequent to the Board hearing, this matter was remanded for further development, to include obtaining a VA examination. At the outset, the Board acknowledges the Veteran's November 2021 argument that his September 2021 VA audiological evaluation was inadequate. In this regard, he indicated that not enough wax was removed from both ears, as such the results were not valid. The Board finds that a review of the September 2021 VA audiological evaluation report does not show any inadequacies. In this regard, the examiner gave a thorough statement as to why only the right ear findings were valid. He provided audiometric testing results, to include speech discrimination scores, and noted that the right ear audiometric testing results were valid for rating purposes. Additionally, the examiner noted the functional impairment resulting from the Veteran's hearing impairment in his own words. As such, the Board finds that the January 2020 VA audiological evaluation is adequate for rating purposes. The Board also observes that the Veteran is requesting that he be examined by a private provider in order to have his ears cleared of wax before the claim is readjudicated. The Board notes that the Veteran is welcome to schedule a private examination and submit the evidence with a supplemental claim should he so choose. The Board finds no valid reason to remand for an additional examination before proceeding with this decision. Finally, the Board observes that in November 2021 correspondence the Veteran indicated he did not want to opt-in to the Modernized system; however, he did submit a VA-Form 20-0995 Supplemental Claim application and specifically indicated that he was disagreeing with the September 2021 supplemental statement of the case. The Veteran did not withdraw his claim from the legacy appeal process; therefore, this claim pending in the legacy appeal process is not withdrawn. As such, the claim remains pending before the Board under the legacy appeal process. 1. Entitlement to a compensable rating for bilateral hearing loss Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered because of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Evaluations of defective hearing are based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination testing together with the average hearing threshold level as measured by pure tone audiometry tests in the frequencies 1,000, 2,000, 3,000 and 4,000 Hertz. 38 C.F.R. § 4.85, Code 6100. To evaluate the degree of disability from defective hearing, the rating schedule requires assignment of a Roman numeral designation, ranging from I to XI. Id. Pursuant to VA's rating schedule, the assignment of a disability rating for hearing impairment is derived by a purely mechanical application of the rating schedule to the numeric designations derived from the results of audiometric evaluations. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Other than exceptional cases, VA arrives at the proper designation of hearing loss in each ear by mechanical application of Table VI; Table VII is then applied to arrive at a rating based upon the respective Roman numeral designations for each ear. Id. 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. 38 C.F.R. § 4.86. Further, when the average pure tone threshold is 30 decibels 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 Roman numeral. Each ear will be evaluated separately. Id. Table VIa: Numeric Designation of Hearing Impairment Based Only on Pure tone Threshold Average, is used to determine a Roman numeral designation (I through XI) for hearing impairment based only on pure tone threshold average. Table VIa is used when the examiner certifies that the use of the speech discrimination test is not appropriate due to language difficulties, inconsistent speech discrimination scores, etc., or when indicated under the provisions of § 4.86. 38 C.F.R. § 4.85(c). Initially, the Board notes that the valid audiological evaluation on file during the appeal period does not show that each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more; or that the average pure tone threshold is 30 decibels at 1000 Hertz, and 70 decibels or more at 2000 Hertz. Therefore, the Veteran does not have an exceptional pattern of hearing loss as defined by 38 C.F.R. § 4.85(a), and those regulatory provisions are not for consideration in the instant case. The pertinent evidence consists of VA examination reports. On the authorized audiological evaluation in April 2016, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 40 40 50 65 75 LEFT 35 40 50 55 60 Utilizing the numbers set forth above, the examiner found that the Veteran's average right ear decibel loss was 58dB and left ear decibel loss was 51dB. The Veteran's Maryland CNC word list showed 80 percent speech discrimination in the right ear and 88 percent speech discrimination in the left ear. The examiner indicated that the Veteran's bilateral hearing loss had an impairment on the ordinary conditions of daily life, to include work, as the Veteran reported difficulty hearing when exposed to adverse listening environments. Utilizing Table VI listed in 38 C.F.R. § 4.85, the above audiological findings show Level IV hearing acuity in the right ear and Level II hearing acuity in the left ear. Using Level IV hearing and Level II hearing under Table VII in 38 C.F.R. § 4.85, these findings warrant a 0 percent rating. The Veteran was examined again in January 2017. The examiner indicated that he reviewed the Veteran's file, which included the audiometric results from the VA and Miracle Ear. The examiner indicated that the January 2017 examination results are not considered valid for rating purposes as they were not indicative of organic hearing loss. He noted that the pure tone threshold averages were not in agreement with the speech reception thresholds. The examiner also noted that the use of the word recognition score was not appropriate because of language difficulties, cognitive problems, inconsistent word recognition scores, etc., that make combined use of puretone average and word recognition scores inappropriate. Pursuant to the September 2020 Board remand, the Veteran was examined in September 2021. On the authorized audiological evaluation in September 2021, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 50 50 65 75 80 LEFT 70 85 95 95 95 Utilizing the numbers set forth above, the examiner found that the Veteran's average right ear decibel loss was 68dB. The Veteran's Maryland CNC word list showed 66 percent speech discrimination in the right ear. The examiner indicated that the Veteran's bilateral hearing loss had an impairment on the ordinary conditions of daily life, to include work, as the Veteran reported difficultly understanding conversations in group settings. Utilizing Table VI listed in 38 C.F.R. § 4.85, the above audiological findings show Level VII hearing acuity in the right ear. Using Level VII hearing in the right ear under Table VII in 38 C.F.R. § 4.85, these findings warrant a 0 percent rating. The examiner indicated that the right ear test results were valid for rating purposes; however, the left ear test results were deemed not valid for rating purposes. Indeed, the examiner stated that cerumen management was recommended to the Veteran after otoscopy because of impacted cerumen. He noted that the Veteran gave consent and cerumen management was performed for the left ear only with curette after no responses were obtained for the puretone component of the exam. The examiner indicated that the Veteran declined further removal of wax before all of impacted wax could be removed due to his sensitive ears. Subsequently thresholds were obtained for the left ear, however, the examiner indicated that the thresholds were highly elevated and with significant conductive component due to remaining wax in the left ear. The examiner noted that speech scores for the left ear are reflective of the remaining impacting wax in the left ear after cerumen management was performed. He indicated that the Veteran stated that his ears are sensitive and as such cerumen management was not further pursued. The examiner indicated that the Veteran was advised that the wax in his left ear needs to be removed at some point for him to be able to better hear in his left ear regardless of using a hearing aid for that ear. The examiner stated that test results were organic for the left ear, however, they were not valid for rating purposes because of the remaining impacted wax in that ear. He stated once all of the wax is removed, there will be an improvement in both the thresholds and speech scores for the left ear. The examiner stated that all test results are valid for the right ear. The examiner stated that although there was significant non-occluding wax was observed in the right ear, such did not affect test results and was not removed due to sensitive ear canals. Based on the results of the audiological evaluations discussed above, and in the absence of any additional competent medical evidence showing a more severe hearing disability, the hearing loss has not approximated the criteria for a compensable (10 percent) evaluation at any time during this appeal. Although the Board sympathizes with the Veteran's belief that he should be assigned a compensable rating on the basis that his hearing loss has increased in severity, the Board has no discretion in this matter and must predicate its determination based on the results of the audiology studies of record. The assignment of a compensable rating is not warranted. H.M. WALKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. McPhaull, 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.