Citation Nr: 21008249 Decision Date: 02/12/21 Archive Date: 02/12/21 DOCKET NO. 20-28 879 DATE: February 12, 2021 ORDER A compensable rating for bilateral hearing loss prior to November 2, 2020, and in excess of 40 percent thereafter, is denied. FINDING OF FACT Prior to November 2, 2020, the Veteran’s bilateral hearing loss has been no worse than Level II in both the right ear and the left ear, and as of November 2, 2020, the Veteran’s bilateral hearing loss has been no worse than Level VIII in the right ear and Level VII in the left ear. CONCLUSION OF LAW The criteria for a compensable disability rating prior to November 2, 2020 for bilateral hearing loss, and in excess of 40 percent thereafter, have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.3, 4.7, 4.85, Diagnostic Code 6100. REASONS AND BASES FOR FINDING AND CONCLUSION This matter initially comes before the Board of Veterans Appeals’ (Board) on appeal from a March 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge in a September 2020 virtual hearing. The Board remanded the matter in September 2020, to afford the Veteran an additional audiological examination. The Board finds that the remand directives have been substantially complied with and therefore will proceed with the appeal. Stegall v. West, 11 Vet. App. 268. The Veteran contends that his service-connected bilateral hearing loss warrants higher ratings. Specifically, he is requesting a disability rating of 40 percent. See December 2019 notice of disagreement form. As referenced in the September 2020 remand, the Veteran provided a December 2019 detailed statement. In it, he described how much his hearing loss impacts his daily life as he self isolates because he cannot hear those around him when in groups and he watches television alone because the volume level he needs to hear is too loud that it causes discomfort for anyone else in the room. In a November 2020 rating decision, the RO granted an increased rating of 40 percent, effective November 2, 2020—the date of the most recent VA audiological examination. Ratings of hearing loss range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of speech discrimination tests combined with the average hearing threshold levels as measured by pure tone audiometry tests in the frequencies 1000, 2000, 3000, and 4000 cycles per second. To rate the degree of disability for service-connected hearing loss, the Rating Schedule has established eleven auditory acuity levels, designated from level I, for essentially normal acuity, through level XI, for profound deafness. 38 C.F.R. § 4.85, Diagnostic Code 6100, Table VI. In order to establish entitlement to an increased rating for hearing loss, it must be shown that certain minimum levels of the combination of the percentage of speech discrimination loss and average pure tone decibel loss are met. The assignment of disability ratings for hearing impairment is 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, 349 (1992). The criteria for rating hearing impairment use controlled speech discrimination tests (Maryland CNC) together with the results of pure tone audiometry tests. These results are then charted on Table VI, Table VIA in exceptional cases as described in 38 C.F.R. § 4.86, and Table VII, as set out in the Rating Schedule. 38 C.F.R. § 4.85. An exceptional pattern of hearing loss occurs when the pure tone threshold at 1000, 2000, 3000, and 4000 Hertz is 55 decibels or more, or when the pure tone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz. 38 C.F.R. § 4.86. Specifically, when the pure tone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz, the Roman numeral designation for hearing impairment is determined from either Table VI or Table VIA, whichever results in the higher numerical. 38 C.F.R. § 4.86(b). That numeral will then be elevated to the next higher Roman numeral, and then each ear will be evaluated separately. Id. The Board finds that the preponderance of the evidence weighs against an assignment of a compensable disability rating prior to November 2, 2020, and against an assignment of a disability rating higher than 40 percent thereafter. The audiograms of record only support the currently assigned ratings for his bilateral hearing loss. The Veteran was afforded a VA audiological examination in March 2015. Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 AVG RIGHT 45 50 60 90 90 72.5 LEFT 35 45 50 70 80 61.25 Maryland CNC speech discrimination testing showed recognition of 94 percent in the right ear and 96 percent in the left ear. The examiner indicated that the Veteran had sensorineural hearing loss in the frequency range of 500 to 4000 Hertz, and in the frequency range of 6000 Hertz, bilaterally. His average thresholds were 72.5 Hz in the right ear, and 61.25 Hz in the left ear. Applying the average pure tone thresholds and speech recognition abilities into Table VI for the right ear reveals the highest numeric designation of hearing impairment is Level II. Applying the average pure tone thresholds and speech recognition abilities into Table VI for the left ear reveals the highest numeric designation of hearing impairment is Level II. The combined numeric designation then results in a noncompensable rating under 38 C.F.R. § 4.85, Table VII. No exceptional patterns of hearing impairment apply for the right ear or the left ear. Additionally, the examiner is listed as an audiologist, as required for rating purposes. See 38 C.F.R. § 4.85(a). As such, this audiogram is adequate for VA purposes and holds probative value. Id. Accordingly, a compensable rating for hearing loss is not warranted based on these audiological findings. The Veteran was afforded a VA audiological examination in November 2020. Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 AVG RIGHT 60 60 85 95 100 85 LEFT 50 60 80 85 85 77.5 Maryland CNC speech discrimination testing showed recognition of 78 percent in the right ear and 70 percent in the left ear. The examiner indicated that the Veteran had sensorineural hearing loss in the frequency range of 500 to 4000 Hertz, and in the frequency range of 6000 Hertz, bilaterally. His average thresholds were 85 Hz in the right ear, and 77.5 Hz in the left ear. The pure tone thresholds for the right ear and for the left ear warrant application of Table VIA, as there are exceptional patterns of hearing impairment. Application of Table VIA to the right ear and left ear results in the higher numeral. Applying the average pure tone thresholds into Table VIA for the right ear reveals the highest numeric designation of hearing impairment is Level VIII. Applying the average pure tone thresholds into Table VIA for the left ear reveals the highest numeric designation of hearing impairment is Level VII. The combined numeric designation then results in a rating of 40 percent under 38 C.F.R. § 4.85, Table VII. Additionally, the examiner is listed as an audiologist, as required for rating purposes. See 38 C.F.R. § 4.85(a). As such, this audiogram is adequate for VA purposes and holds probative value. Id. Accordingly, a rating higher than 40 percent for hearing loss is not warranted based on these audiological findings. The Board acknowledges that the Veteran requested a rating of 40 percent for his hearing loss and this was granted as of November 2020. However, as the Veteran has expressed the impact his hearing loss has had on his life and the 40 percent grant does not cover the entire period on appeal, the Board has considered the Veteran’s contentions and his belief that a compensable rating is warranted prior to November 2020. Although the Board is sympathetic to the Veteran’s belief that his hearing loss warrants a higher rating prior to November 2020, rating a hearing loss disability involves the mechanical application of rating criteria to the results of specified audiometric studies. This decision does not preclude the Veteran from seeking an increased rating prior to November 2020, if he is able to provide valid audiograms consistent with a compensable rating. The Board also acknowledges receipt of the September 2020 letter authored by a private audiologist. She discussed the Veteran’s recognition and pure tone average. However, she did not provide actual audiograms readings and there is nothing to indicate that the Maryland CNC word list was used. Therefore, the findings mentioned are not valid for rating purposes. A compensable rating prior to November 2, 2020 and in excess of 40 percent thereafter is not warranted. The claim must be denied. H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Talamantes 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.