Citation Nr: 21008753 Decision Date: 02/17/21 Archive Date: 02/17/21 DOCKET NO. 14-32 363 DATE: February 17, 2021 ORDER Entitlement to an initial rating in excess of 10 percent for bilateral hearing loss is denied. REMANDED Entitlement to service connection for a right ear disability, to include cholesteatoma, is remanded. FINDING OF FACT Throughout the appeal period, audiograms of record demonstrated that the Veteran’s bilateral hearing loss was manifested, at worst, by Level XI hearing acuity in the right ear and Level II acuity in the left ear. CONCLUSION OF LAW The criteria for an initial rating in excess of 10 percent for bilateral 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 Navy from November 1968 to October 1969. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded the matter in April 2018 for further development. 1. Entitlement to an initial rating in excess of 10 percent for bilateral hearing loss The Veteran contends that his bilateral hearing loss is more severe than what is reflected by his current rating of 10 percent disabling. Evaluations of bilateral defective hearing range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests together with the average hearing threshold level measured by puretone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hertz). To evaluate the degree of disability for bilateral service-connected defective hearing, the schedule establishes 11 auditory hearing acuity levels designated from Level I (for essentially normal hearing acuity) through Level XI (for profound deafness). 38 C.F.R. § 4.85, Tables VI and VII, DC 6100. Disability ratings for hearing loss are derived from a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). Exceptional patterns of hearing impairment are to be evaluated in accordance with the provisions of 38 C.F.R. § 4.86. That regulation states that: (a) When the puretone 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. Each ear will be evaluated separately. (b) When the puretone threshold is 30 decibels or less 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. An examination for hearing impairment for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a puretone audiometry test. 38 C.F.R. § 4.85(a). The instant appeal dates from the Veteran’s April 2012 claim for disability compensation. The Veteran has undergone multiple VA audiometric readings during the period on appeal. Preliminarily, the Board notes that there are two audiograms of record that may not be considered by the Board, as it is not apparent that controlled speech discrimination tests using the Maryland CNC were used. See 38 C.F.R. § 4.85(a); see also Feb. 2018 Medical Treatment Record – Government Facility, p. 3; Jun. 2013 Medical Treatment Record – Non-Government Facility, p. 5. In December 2012, the Veteran’s puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 Right 105+ 100 105+ 105+ 105+ Left 10 20 30 50 60 The average decibel loss was 104 decibels in the right ear and 40 decibels in the left ear. Speech audiometry revealed speech recognition ability of 98 percent in the left ear. The examiner was unable to test the right ear for speech recognition due to the Veteran’s degree of hearing loss. Applying Table VI of the rating schedule, the results of the December 2012 VA audiogram reflect that the Veteran had Level XI hearing in the right ear and Level I hearing in the left ear. Based on Table VII, these results correspond to a 10 percent disability rating. The Veteran underwent another VA audiogram in November 2015, showing the following puretone thresholds: HERTZ 500 1000 2000 3000 4000 Right 100 105+ 105 105+ 105+ Left 20 30 40 60 60 The average decibel loss was 105 decibels in the right ear and 47.50 decibels in the left ear. Speech audiometry revealed speech recognition ability of 100 percent in the left ear. The examiner was unable to test the right ear for speech recognition due to the Veteran’s degree of hearing loss. Applying Table VI of the rating schedule, the results of the November 2015 VA audiogram reflect that the Veteran had Level XI hearing in the right ear and Level I hearing in the left ear. Based on Table VII, these results correspond to a 10 percent disability rating. The Veteran underwent another VA audiogram in November 2018, showing the following puretone thresholds: HERTZ 500 1000 2000 3000 4000 Right 105 105+ 105+ 105+ 105+ Left 35 40 50 65 65 The average decibel loss was 105 decibels in the right ear and 55 decibels in the left ear. Speech audiometry revealed speech recognition ability of 96 percent in the left ear. The examiner was unable to test the right ear for speech recognition due to the Veteran’s degree of hearing loss. Applying Table VI of the rating schedule, the results of the November 2018 VA audiogram reflect that the Veteran had Level XI hearing in the right ear and Level I hearing in the left ear. Based on Table VII, these results correspond to a 10 percent disability rating. The most recent audiogram of record took place in July 2020, reflecting the following puretone thresholds: HERTZ 500 1000 2000 3000 4000 Right 105 105+ 105+ 105+ 105+ Left 40 40 50 75 70 The average decibel loss was 105 decibels in the right ear and 58.75 decibels in the left ear. Speech audiometry revealed speech recognition ability of 96 percent in the left ear. The examiner was unable to test the right ear for speech recognition due to the Veteran’s degree of hearing loss. Applying Table VI of the rating schedule, the results of the July 2020 VA audiogram reflect that the Veteran had Level XI hearing in the right ear and Level II hearing in the left ear. Based on Table VII, these results correspond to a 10 percent disability rating. As illustrated above, the audiological examinations of record indicate findings corresponding to no higher than a 10 percent rating under the applicable criteria. There is no competent evidence of record that would suggest that the Veteran’s bilateral hearing loss is severe enough to warrant a higher rating. The audiometric testing outlined above does indicate that the Veteran experiences an exceptional pattern of hearing impairment due to puretone thresholds in the right ear of 55 decibels or greater at each of the frequencies 1000, 2000, 3000, and 4000 Hertz. 38 C.F.R. § 4.86(a). However, the Veteran’s right ear hearing loss is already evaluated as Level XI, the highest evaluation, using Table VI. See 38 C.F.R. § 4.85. There is no evidence of record indicating that the Veteran has a puretone threshold of 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz 38 C.F.R. § 4.86(b). The Veteran’s subjective reports of hearing impairment have been considered. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). However, a review of his lay statements gives no indication of specific symptoms or a particular degree of impairment that would justify a compensable rating. Moreover, the Board is bound to apply the VA rating schedule, under which the rating criteria are defined and limited by audiometric findings. This criteria measures hearing acuity directly in a controlled laboratory environment. In this regard, as discussed above, VA audiometric examination findings in this case demonstrate no basis for any increase in disability evaluation. The Veteran has not alleged, and the evidence of record does not reflect, that his hearing loss has worsened since the July 2020 audiological evaluation. The Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the record). In sum, the application of the rating schedule to the numeric designations assigned based on the audiological examination reports discussed above demonstrate that the appropriate rating for the Veteran’s bilateral hearing loss is 10 percent disabling, throughout the appeal period. The Veteran has not met the criteria for a rating in excess of 10 percent during any discrete period involved in this appeal. The Board is grateful for the Veteran’s honorable service, and this decision in no way is meant to detract from that service. The Board is constrained by law, however, and unfortunately there is no basis on which to award the benefits sought. REASONS FOR REMAND 1. Entitlement to service connection for a right ear disability, to include cholesteatoma, is remanded. In April 2018, the Board remanded the matter for further development, to include a new VA examination for the Veteran’s right ear disability, to include cholesteatoma. The Board instructed the examiner that, in forming his or her opinion, he or she must specifically discuss the Veteran’s reports of an in-service injury and his reports of chronic ear drainage since service. The Veteran reported to a private provider that while undergoing overboard survival training during service, he was struck with a baton on his right ear very firmly. See May 2013 Medical Treatment Record – Non-Government Facility, p. 1. He stated that this impact caused a “pop” and that he suffered progressive hearing loss since the event. Id. He further stated that within one year of discharge, his ear began to drain with an invective discharge. Id. In November 2018, the Veteran underwent a VA ear conditions examination. The examiner opined that the Veteran’s cholesteatoma is less likely than not related to his active service. However, the examiner failed to address the Veteran’s in-service injury to his right ear and his chronic ear drainage. A Board remand confers upon claimants, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. Stegall v. West, 11 Vet. App. 268, 271 (1998); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide an examination or obtain a medical opinion, it must ensure that the examination or opinion is adequate). Accordingly, the matter must be remanded to afford the Veteran a VA examination for his right ear condition that both considers relevant lay evidence by the Veteran and complies with the November 2018 remand directives. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination with a different examiner to determine the nature and etiology of any right ear disability, to include cholesteatoma. Any indicated evaluations, studies, and tests deemed necessary by the examiner should be accomplished. The entire claims file, to include a complete copy of this REMAND, should be made available to the examiner designated to provide the opinion, and the examination report must include a discussion of the Veteran’s documented medical history and assertions. The examiner should offer comments, an opinion, and a supporting rationale that address the following: (a) Identify all diagnoses that pertain to the Veteran’s right ear, other than bilateral hearing loss and tinnitus. (b) For any diagnosis identified above, is it at least likely as not (50 percent probability or greater) that the Veteran’s right ear disability was incurred in, aggravated by, or is otherwise etiologically related to the Veteran’s active duty service? In forming the opinion, the examiner must address all relevant lay statements of record, including but not limited to the Veteran’s reports of an in-service injury during overboard survival training exercise and ear drainage since service. The examiner is advised that the Veteran is competent to report symptoms, treatment, and injuries and that his reports must be taken into account in formulating the requested opinions. The examiner must provide rationale for all proffered opinions. If the examiner is unable to provide any required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. A. S. CARACCIOLO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Watkins, 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.