Citation Nr: 21009519 Decision Date: 02/22/21 Archive Date: 02/22/21 DOCKET NO. 17-39 705A DATE: February 22, 2021 ORDER Entitlement to a compensable rating for a bilateral hearing loss disability is denied. FINDING OF FACT The Veteran’s hearing acuity showed at most Level II impairment in the right ear and Level I impairment in the left ear. CONCLUSION OF LAW The criteria for entitlement to a compensable rating for a bilateral hearing loss disability have not been met. 38 U.S.C. §§ 1155, 5107 (2018); 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 January 1966 to January 1968. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2014 rating decision by the Department of Veterans Affairs (VA). This case was remanded in January 2020 for further development. In December 2019, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. Although a transcript of that hearing is of record, the Veteran’s responses are mostly inaudible. VA notified the Veteran of the defects in his transcript and provided him the opportunity to request a new hearing. See December 2020 VA correspondence. Although the Veteran’s representative is not listed as being copied on the letter, the Package Manager in the Veterans Benefits Management System (VBMS) reflects that a copy of the letter was mailed to his representative. Because the Veteran did not respond to the letter, the Board will presume that he does not wish to have a second hearing and will proceed with adjudication. Entitlement to a compensable rating for a bilateral hearing loss disability. Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity caused by the given disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular Code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining, including degree of disability, is to be resolved in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). In any claim for an increased rating, “staged” ratings may be warranted where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). Ratings for 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 July 2014 VA audio examination, audiometry revealed that puretone thresholds, in decibels, were: HERTZ 1000 2000 3000 4000 Average RIGHT 20 45 60 65 47.5 LEFT 20 25 40 45 32.5 Speech audiometry revealed speech recognition ability of 88 percent for the right ear and 92 percent in the left ear. The Veteran reported difficulty hearing and understanding speech, especially in background noise, when watching television, and using the telephone. See July 2014 VA examination. During the Veteran’s November 2018 VA audio examination, audiometry revealed that puretone thresholds, in decibels, were: HERTZ 1000 2000 3000 4000 Average RIGHT 35 50 65 60 52.5 LEFT 20 35 40 45 35 Speech audiometry revealed speech recognition ability of 100 percent for the right ear and 100 percent in the left ear. The Veteran reported trouble understanding speech at times even with amplification. See November 2018 VA examination. During the Veteran’s January 2020 VA audio examination, audiometry revealed that puretone thresholds, in decibels, were: HERTZ 1000 2000 3000 4000 Average RIGHT 30 50 65 65 52.5 LEFT 20 30 45 45 35 Speech audiometry revealed speech recognition ability of 94 percent for the right ear and 96 percent in the left ear. See January 2020 VA examination. Using the audiometry conducted in accordance with regulatory criteria, hearing acuity showed at most Level II impairment in the right ear and Level I impairment in the left ear. Additionally, the audiometry results do not reflect any exceptional patterns of hearing impairment that would warrant evaluation using Table VIa. The hearing acuity shown from these audiometry results is equivalent to a noncompensable rating under Table VII. CONTINUED ON NEXT PAGE The Board acknowledges that the Veteran has difficulty hearing and is wearing VA-issued hearing aids. See, e.g., November 2017 VA treatment records. However, rating a hearing loss disability involves the mechanical application of rating criteria to the results of specified audiometric studies. There are no other available audiometric results of record paired with simultaneous speech discrimination testing using the Maryland CNC test. 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. As a result, entitlement to a compensable rating for a bilateral hearing loss disability must be denied. E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Sandler, 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.