Citation Nr: 21009300 Decision Date: 02/22/21 Archive Date: 02/22/21 DOCKET NO. 19-16 974 DATE: February 22, 2021 ORDER A rating in excess of 20 percent for bilateral hearing loss is denied. FINDING OF FACT At worst, the Veteran’s bilateral hearing loss has been characterized by numeric designation Level IV in the right ear and a Level VI in the left ear. CONCLUSION OF LAW The criteria for a rating in excess of 20 percent for bilateral hearing loss have not been met. 38 U.S.C. § 1155; 5107; 38 C.F.R. §§ 3.321, 4.1, 4.10, 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1978 to July 1981 and from July 1981 to October 1984. The Veteran provided testimony at a June 2020 virtual Board hearing before the undersigned Veterans Law Judge. A complete transcript is of record. This appeal was previously before the Board in August 2020. At the June 2020 Board hearing, the Veteran provided testimony stating that his service-connected bilateral hearing loss had worsened since the last VA audiological examination conducted in May 2018. The Veteran testified that he underwent a private audiological examination in June 2019 and would submit the examination report to his representative, so that he could have it added to his claims file. VA received the private audiological examination report in June 2020. However, the puretone audiometry graph is partially illegible. Further, a speech recognition test does not appear to have taken place. The Board notes that a Maryland CNC test is required by VA regulations to assess the severity of a hearing loss disability. 38 C.F.R. § 3.385. The August 2020 Board decision found that the private medical record submitted in June 2020 was insufficient to properly assess the current severity of the Veteran’s bilateral hearing loss. Based on the Veteran’s testimony that his hearing had worsened since the May 2018 audiological examination, a new VA examination was ordered to accurately assess the current level of impairment. Snuffer v. Gober, 10 Vet. App. 400, 402-403 (1997). The Veteran was afforded a VA audiological examination in September 2020, which addressed the current level of hearing impairment. VA received the Veteran’s representative’s Appellate Brief, which stated that the August 2020 Board remand directives were followed. See Appellate Brief received February 2, 2021. As such, the Board finds that there has been substantial compliance with the August 2020 Board remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). A rating in excess of 20 percent for bilateral hearing loss is denied. The Veteran asserts that he is entitled to a rating in excess of 20 percent for his bilateral hearing loss. Specifically, his wife testified at the Board hearing that the Veteran watched television with the volume turned up very loudly and that he had a hard time hearing her when she spoke to him. VA received the Veteran’s intent to file a claim on September 21, 2017. On April 30, 2018, VA received the Veteran’s formal claim for an increased rating for his service-connected bilateral hearing loss. As such, the relevant period on appeal begins on September 21, 2017. Disability ratings for hearing loss are derived from a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing. Lendenman v. Principi, 3 Vet. App. 345 (1992). The rating schedule establishes auditory hearing acuity levels based on average pure tone thresholds and speech discrimination. 38 C.F.R. § 4.85. Ratings for hearing loss are determined in accordance with the findings obtained on audiometric examinations. Ratings for hearing impairment range from 0 percent to 100 percent based on organic impairment of hearing acuity, as measured by the results of the controlled speech discrimination tests, together with the average hearing threshold level as measured by pure tone audiometry tests in the frequencies 1000, 2000, 3000, and 4000 Hertz. To rate the degree of disability from hearing impairment, the rating schedule establishes 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. Hearing tests will be conducted without hearing aids, and the results of testing are charted on Table VI and Table VII. 38 C.F.R. § 4.85, Tables VI, VII. Exceptional patterns of hearing impairment are rated under 38 C.F.R. § 4.86. When the pure tone threshold at each of the four specified frequencies of 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. When the pure tone 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 for hearing impairment from Table VI or Table VIa, whichever is higher. That numeral will then be elevated to the next higher Roman numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86. At no time during the appeal period were each of the four hearing thresholds 55 decibels or greater, or that his pure tone threshold was 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz; so no provision of 38 C.F.R. § 4.86, used to evaluate exceptional patterns of hearing impairment, is applicable. 38 C.F.R. § 4.86 (a). An adequate evaluation of impairment of hearing acuity rests upon the results of controlled speech discrimination tests, together with tests of the average hearing threshold levels at certain specified frequencies. 38 C.F.R. § 4.85, Diagnostic Code 6100. The Veteran was afforded a VA audiological examination in May 2018. The audiological examination showed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 Avg. Right 45 50 55 55 65 56 Left 60 55 60 75 90 70 The Veteran’s Maryland CNC test showed that he scored 76 percent in the right ear and 72 percent in the left ear. As previously mentioned, the Veteran provided a June 2020 private audiological examination, but it was found to be insufficient because it was partially illegible and did not contain a Maryland CNC test, which is required to assess a Veteran’s hearing loss. 38 C.F.R. § 3.385. The Board notes that the Veteran’s post-service treatment records did not contain the results of any other audiological testing. The Veteran was afforded a second VA audiological examination in September 2020. The audiological examination report showed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 Avg. Right 45 45 45 55 55 50 Left 45 45 50 50 50 49 The Veteran’s Maryland CNC test showed that he scored 96 percent in both ears. The results of the May 2018 VA audiological examination showed an average hearing loss of 56 in the right ear and 70 in the left ear. He had a speech discrimination score of 76 percent in the right ear and 72 percent in the left ear. Under Table VI, the May 2018 audiological results show that the Veteran has a Level IV impairment in the right ear, combined with a Level VI impairment in the left ear. A Level IV impairment in the right ear, with a Level VI in the left ear warrants a 20 percent rating under Table VII. The results of the September 2020 VA audiological examination showed an average hearing loss of 50 in the right ear and 49 in the left ear. He had a speech discrimination score of 96 percent in both ears. Under Table VI, the September 2020 audiological results show that the Veteran has a Level I impairment in the right ear, combined with a Level I impairment in the left ear. A Level I impairment in the right ear, with a Level I in the left ear warrants a noncompensable rating under Table VII. Here, the Veteran asserted at the June 2020 Board hearing that his hearing had worsened and was entitled to a higher initial rating. Given the Veteran’s testimony of decreased hearing acuity, a new VA examination was scheduled to evaluate the current severity of the hearing loss. However, the results of the latest VA examination did not show a decrease in hearing acuity, it actually showed an increase in hearing acuity. However, the Board will not disturb the Veteran’s 20 percent rating for bilateral hearing loss. The Board does not dispute the contention that the Veteran’s hearing problem causes him hardship and is sympathetic to his assertion that his hearing deserves a rating in excess of 20 percent. The Board recognizes the Veteran’s wife’s credible testimony that he has difficulty watching television and has to turn up the volume very loudly to hear and has trouble hearing her when she speaks to him. However, the Board is precluded from deviating from the rating criteria of Diagnostic Code 6100. The Veteran’s audiological test results of record have been applied to Table VI and Table VII. 38 C.F.R. § 4.85. Although the Veteran does show diminished hearing acuity, the application of his audiological test results reveals, that at worst, he showed a Level IV impairment in the better ear and a Level VI impairment in the poorer ear, which warrants a 20 percent rating. Here, the Veteran’s hearing results have not shown a Level IV in the better ear and a Level IX in the worst ear, which would be the minimum requirement for a 30 percent rating. Unfortunately, the audiometric results of record show that the Veteran’s hearing loss is most appropriately rated as 20 percent. The evidence is not in relative equipoise to warrant a higher evaluation. 38 U.S.C. § 5107 (b). Further, the Veteran’s representative has conceded that the September 2020 VA examiner complied with the August 2020 remand directives, and has not otherwise asserted that the examination was deficient in any way. Accordingly, a rating in excess of 20 percent for the Veteran’s bilateral hearing loss is denied. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Fu, 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.