Citation Nr: 21009740 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 16-02 409 DATE: February 23, 2021 ORDER An initial compensable rating for bilateral hearing loss, prior to December 19, 2018 is denied. A rating in excess of 30 percent for bilateral hearing loss, effective December 19, 2018 is denied. FINDINGS OF FACT 1. During the period prior to December 19, 2018, the Veteran’s bilateral hearing loss has been characterized by no more than Level II hearing loss in both ears. 2. During the period effective December 19, 2018, the Veteran’s bilateral hearing loss has been characterized by no more than Level V hearing loss in the right ear and Level VII hearing loss in the left ear. CONCLUSIONS OF LAW 1. The criteria to establish a compensable rating for the period prior to December 19, 2018 for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.7, 4.14, 4.85, 4.86, Diagnostic Code 6100 (2020). 2. The criteria to establish a rating in excess of 30 percent, effective December 19, 2018 for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.7, 4.14, 4.85, 4.86, Diagnostic Code 6100 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the United States Navy from September 1965 through July 1970. In May 2019, the Board remanded the Veteran’s appeal for additional development. Increased Ratings Disability evaluations are determined by comparing the Veteran’s current symptomatology with the criteria set forth in the Schedule For Rating Disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4 (2020). Hearing loss is rated under 38 C.F.R. §§ 4.85, 4.86, diagnostic code 6100. Under diagnostic code 6100, hearing impairment evaluations are derived by a mechanical application of the ratings schedule to the numeric designations assigned after audiometric evaluations are rendered. See Lendenmen v. Principi, 3 Vet. App. 345, 349 (1992). The ratings schedule provides a table for ratings purposes (Table VI) to determine a Roman numeral designation (I through XI) for hearing impairment. Table VII is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment in both ears. See 38 C.F.R. § 4.85. The rating schedule allows for each ear to be evaluated separately where there is an exceptional pattern of hearing impairment. 38 C.F.R. § 4.86. When the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more, Table VI or Table VIa is to be used, whichever results in the higher numeral. 38 C.F.R. § 4.86(a). Additionally, when the pure tone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, Table VI or Table VIa is to be used, whichever results in the higher numeral. Thereafter, that numeral will be elevated to the next higher numeral. 38 C.F.R. § 4.86(b). In addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in his or her final report. Martinak v. Nicholson, 21 Vet. App. 447 (2007). In July 2013, the Veteran was afforded a VA audiological examination. During this examination, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 AVG RIGHT 25 25 50 60 60 49 LEFT 30 40 50 55 60 51 Speech audiometry revealed speech recognition ability of 100 percent in the right ear and 100 percent in the left ear. Based on these results, the VA examiner concluded the Veteran did have bilateral sensorineural hearing loss. The examiner’s only comment regarding functional impact of hearing loss was that the Veteran experienced “hearing difficulties.” The examination results represent Level I hearing loss in the right ear and Level I hearing loss in the left ear. In August 2014, the Veteran was afforded a VA audiological examination. During this examination, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 AVG RIGHT 25 40 55 65 60 55 LEFT 35 45 60 60 65 58 Speech audiometry revealed speech recognition ability of 96 percent in the right ear and 94 percent in the left ear. Based on these results, the VA examiner concluded the Veteran did have bilateral sensorineural hearing loss. The examiner noted that the Veteran needs people to talk to him very loudly and that he understands better when the speaker is looking at him. The examination results represent Level I hearing loss in the right ear and Level II hearing loss in the left ear. In April 2016, the Veteran’s hearing was evaluated. Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 AVG RIGHT 35 40 65 70 70 61 LEFT 40 50 65 65 65 61 Speech audiometry revealed speech recognition ability of 96 percent in the right ear and 100 percent in the left ear. The examination results represent Level II hearing loss in the right ear and Level II hearing loss in the left ear. In September 2016, the Veteran’s hearing was evaluated. Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 AVG RIGHT 25 30 50 60 60 50 LEFT 30 40 55 60 60 54 Speech audiometry revealed speech recognition ability of 96 percent in the right ear and 96 percent in the left ear. The examination results represent Level I hearing loss in the right ear and Level I hearing loss in the left ear. In November 2018, the Veteran was afforded a VA audiological examination. During this examination, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 AVG RIGHT 25 45 60 70 70 61 LEFT 40 50 65 65 70 63 The examiner noted that the Veteran’s immittance testing was inadequate for rating purposes because a hermetic seal could not be obtained. In July 2020, the Veteran was afforded a VA audiological examination. During this examination, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 AVG RIGHT 40 45 65 70 70 63 LEFT 50 60 65 70 70 66 Speech audiometry revealed speech recognition ability of 72 percent in the right ear and 60 percent in the left ear. Based on these results, the VA examiner concluded the Veteran has bilateral sensorineural hearing loss. The examiner noted that the Veteran needs people to talk to him very loudly and that he understands better when the speaker is looking at him. The examination results represent Level V hearing loss in the right ear and Level VII hearing loss in the left ear. During the period prior to December 19, 2018, the Veteran’s bilateral hearing loss has been characterized by no more than Level II hearing loss in both ears. Given these facts, the Board finds that the preponderance of the evidence is against the claim for a compensable rating under Diagnostic Code 6100 for the period prior to December 19, 2018. The assignment of disability ratings for hearing impairment is derived by a mechanical application of the rating schedule to the numeric designation assigned after audiometry results are obtained. The Board therefore has no discretion in this matter and must predicate its determination on the basis of the results of the audiology studies of record. See Lendenmann, 3 Vet. App. at 345. In other words, the Board is bound by law to apply VA’s rating schedule based on the audiometry results. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. During the period effective December 19, 2018, the Veteran’s bilateral hearing loss has been characterized by no more than Level V hearing loss in the right ear and Level VII hearing loss in the left ear. Given these facts, a rating of 30 percent but not higher is warranted for the period effective December 19, 2018. Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Wozniak, 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.