Citation Nr: 21009373 Decision Date: 02/22/21 Archive Date: 02/22/21 DOCKET NO. 16-11 148A DATE: February 22, 2021 ORDER Entitlement to a compensable evaluation for a bilateral hearing loss disability is denied. FINDING OF FACT At most, the Veteran’s bilateral hearing loss disability has been manifested by a Level III hearing loss in the right ear and a Level III hearing loss in the left ear. CONCLUSION OF LAW The criteria for a compensable evaluation for a bilateral hearing loss disability have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.85, 4.86, Diagnostic Code (Code) 6100 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1953 to April 1955. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In January 2020, the Board remanded the issue for further development. Entitlement to a compensable evaluation for a bilateral hearing loss disability. The Veteran contends that he is entitled to a higher evaluation for his bilateral hearing loss disability. Ratings for a hearing loss disability are derived from Table VII of 38 C.F.R. § 4.85 by a mechanical application of the rating schedule to numeric designations assigned after audiometric evaluations are performed. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). The numeric designations correspond to eleven auditory acuity levels, indicated by Roman numerals, where Level I denotes essentially normal acuity and Level XI denotes profound deafness. The assignment of the appropriate numeric level is based on the results of a controlled speech discrimination test (Maryland CNC test) in combination with the Veteran’s average puretone thresholds. The average threshold is obtained from puretone audiometric tests in the frequencies of 1000, 2000, 3000, and 4000 Hertz. 38 C.F.R. § 4.85. Rating specialists use either Table VI or VIA of 38 C.F.R. § 4.85 to determine the correct Roman numeral designation. Table VIA is employed when the use of speech discrimination tests is inappropriate due to language difficulties, inconsistent speech discrimination scores, etc., or where there is an exceptional pattern of hearing loss (as defined in 38 C.F.R. § 4.86). One such pattern occurs when the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000) is 55 decibels or more. 38 C.F.R. § 4.86(a). Another pattern occurs when the puretone threshold at 1000 Hertz is 30 decibels or less and the puretone threshold at 2000 Hertz is 70 decibels or more. 38 C.F.R. § 4.86(b). In addition to dictating objective test results, a VA examination must provide the functional effects caused by a hearing disability. However, even if an examiner’s description of the functional effects of a Veteran’s hearing disability was somehow defective, the Veteran bears the burden of proving any prejudice caused by a deficiency in the examination. Martinak v. Nicholson, 21 Vet. App. 447 (2007). During the Veteran’s June 2013 VA audio examination, audiometry revealed that puretone thresholds, in decibels, were: HERTZ 1000 2000 3000 4000 Average RIGHT 35 55 75 80 61 LEFT 40 50 65 60 54 Speech audiometry revealed speech recognition ability of 92 percent bilaterally. Additionally, the June 2013 VA examiner noted that the Veteran’s hearing loss impacted ordinary conditions of life, including the ability to work and explained that the Veteran reported difficulty in hearing conversation. See June 2013 VA examination. During the Veteran’s May 2014 VA audio examination, audiometry revealed that puretone thresholds, in decibels, were: HERTZ 1000 2000 3000 4000 Average RIGHT 35 50 70 80 59 LEFT 35 45 60 55 49 Speech audiometry revealed speech recognition ability of 96 percent bilaterally. The Veteran reported that he experienced increased difficulty with understanding speech in conversations. The May 2014 VA examiner noted that the Veteran’s hearing loss impacted ordinary conditions of daily life, including the ability to work. See May 2014 VA examination. During the Veteran’s June 2016 VA audio examination, audiometry revealed that puretone thresholds, in decibels, were: HERTZ 1000 2000 3000 4000 Average RIGHT 35 50 70 85 60 LEFT 35 45 60 60 50 Speech audiometry revealed speech recognition ability of 96 percent bilaterally. The Veteran reported that he experienced difficulty with understanding speech in conversations. The June 2016 VA examiner noted that the Veteran’s hearing loss impacted ordinary conditions of daily life, including the ability to work. See June 2016 VA examination. During the Veteran’s February 2020 VA audio examination, audiometry revealed that puretone thresholds, in decibels, were: HERTZ 1000 2000 3000 4000 Average RIGHT 50 55 80 95 70 LEFT 50 60 75 75 65 Speech audiometry revealed speech recognition ability of 88 percent bilaterally. The Veteran reported some listening difficulties, especially with background noise, and that he needs to ask for repetition. At this degree of the Veteran’s hearing loss, the February 2020 VA examiner noted that the Veteran was expected to have difficulty when conversing on the phone, as well as limited understanding of conversation if the speaker is distant or in the presence of environment noise. See February 2020 VA examination. Applying the findings of the June 2013, May 2014, June 2016 and February 2020 VA examinations, the Veteran’s hearing loss disability is assigned, at most, a Level III designation bilaterally under Table VI. These categories correspond with a noncompensable disability rating under Table VII. 38 C.F.R. § 4.85, Code 6100. Moreover, the Veteran’s hearing loss disability does not meet the criteria for an exceptional pattern of hearing loss in either ear. 38 C.F.R. § 4.86(a)(b) (2020). Accordingly, the Board will not use Table VIA in its analysis. The Board acknowledges that the Veteran has difficulty hearing and that the same causes some functional impairment. Indeed, the Veteran has reported that he has difficulty in hearing conversation. However, these effects are contemplated in the currently assigned rating. Moreover, rating a hearing loss disability involves the mechanical application of rating criteria to the results of specified audiometric studies. The probative medical evidence does not show the Veteran’s service-connected hearing loss disability has ever warranted a compensable rating during the appeal period. E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Marcus K. Jones, 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.