Citation Nr: 21010798 Decision Date: 02/25/21 Archive Date: 02/25/21 DOCKET NO. 15-06 188A DATE: February 25, 2021 ORDER Entitlement to a compensable rating for bilateral hearing loss is denied. FINDING OF FACT 1. At no point during the period on appeal have the Veteran’s right ear puretone threshold average and speech discrimination scores manifested as higher than a Level III on Table VI of the rating schedule at 38 C.F.R. § 4.85. 2. At no point during the period on appeal have the Veteran’s left ear puretone threshold average and speech discrimination scores manifested as higher than a Level III on Table VI of the rating schedule at 38 C.F.R. § 4.85. CONCLUSION OF LAW The criteria for entitlement to an initial compensable rating for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155; 38 C.F.R. §§ 4.1, 4.7, 4.85 REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the Marine Corps from February 1957 to February 1959. This claim originates from an April 2011 claim for service connection for bilateral hearing loss. In a December 2011 rating decision, the Department of Veterans Affairs (VA) Regional Office (RO) granted the Veteran service connection for bilateral hearing loss and assigned a noncompensable (0% rating) to the Veteran’s disability. The Veteran appealed, seeking a higher initial disability rating. These matters return to the Board of Veterans’ Appeals (Board) following a December 2020 remand for additional development A remand by the Board confers on the Veteran, as a matter of law, the right to substantial compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). In December 2020 the Board directed that treatment records, to include January 2014 and February 2017 audiometric testing results, be obtained from VA Medical Center (VAMC) Boston. Updated VA treatment records, to include audiometric testing conducted in January 2014 and February 2017, were obtained from VAMC Boston and associated with the claims file in December 2020. The Board finds that there has been substantial compliance with its December 2020 remand directives. 1. Entitlement to a compensable rating for bilateral hearing loss The rating criteria for hearing loss, unlike a majority of the conditions in VA’s rating schedule, do not list any specific symptoms or functional effects. See 38 C.F.R. §§ 4.85, 4.86. Instead, VA evaluates service-connected hearing loss through the mechanical application of a veteran’s audiometric testing results to a rating table. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Specifically, VA conducts two audiometric tests for compensation purposes: a puretone audiometry test, which measures puretone decibel (dB) thresholds at 1000, 2000, 3000, and 4000 Hertz (Hz), and a controlled speech discrimination test, the Maryland CNC. 38 C.F.R. § 4.85(a), (d). Based on the results of these tests, each ear is assigned an evaluation corresponding to the level of hearing impairment using either Table VI, which requires results from both tests, or, in certain circumstances, Table VIa, which requires only the puretone threshold results. 38 C.F.R. §§ 4.85(b), (c), (h), 4.86. Both Table VI and VIa utilize an average of the puretone threshold results (PTA) at the 1000, 2000, 3000, and 4000 Hz levels; the puretone threshold results at each Hz level are added together and then divided by 4. Table VI provides a series of impairment levels, expressed in roman numerals (ranging from I to XI) based various combinations of PTA and speech discrimination scores. The evaluations for each ear are combined using Table VII to determine the appropriate disability rating. 38 C.F.R. § 4.85(e), (h). Doucette v. Shulkin, 28 Vet. App. 366, 368 (2017). As discussed further below, the Board notes that at no time during the period on appeal has the Veteran’s hearing loss manifested at a level greater than Level III in either ear under Table VI. Bilateral hearing loss manifesting as Level III in each ear does not warrant a compensable rating. 38 C.F.R. § 4.85. To warrant a compensable rating for bilateral hearing loss with hearing loss manifesting as Level III in one year, the evidence would need to show hearing loss in the other ear manifesting as at least Level IV. 38 C.F.R. § 4.85. The record includes the following audiometric testing results (puretone thresholds and puretone threshold averages are expressed in decibels): November 2011 Hertz 1000 2000 3000 4000 Right Ear 25 45 50 60 Left Ear 30 45 55 65 Right ear PTA: 41 Right ear speech discrimination score: 92% Table VI result: Level I Left ear PTA: 41 Left ear speech discrimination score: 92% Table VI result: Level I January 2014 Hertz 1000 2000 3000 4000 Right Ear 20 35 50 60 Left Ear 25 35 50 65 Right ear PTA: 41 Right ear speech discrimination score: 80% Table VI result: Level III Left ear PTA: 44 Left ear speech discrimination score: 92% Table VI result: Level I January 2015 Hertz 1000 2000 3000 4000 Right Ear 20 35 45 55 Left Ear 20 35 45 55 Right ear PTA: 39 Right ear speech discrimination score: 94% Table VI result: Level I Left ear PTA: 39 Left ear speech discrimination score: 94% Table VI result: Level I February 2017 Hertz 1000 2000 3000 4000 Right Ear 20 35 50 60 Left Ear 20 30 50 65 Right ear PTA: 41 Right ear speech discrimination score: 92% Table VI result: Level I Left ear PTA: 41 Left ear speech discrimination score: 92% Table VI result: Level I June 2018 Hertz 1000 2000 3000 4000 Right Ear 15 35 50 55 Left Ear 20 30 50 65 Right ear PTA: 39 Right ear speech discrimination score: 96% Table VI result: Level I Left ear PTA: 41 Left ear speech discrimination score: 96% Table VI result: Level I May 2019 Hertz 1000 2000 3000 4000 Right Ear 20 40 55 60 Left Ear 20 40 55 65 Right ear PTA: 44 Right ear speech discrimination score: 80% Table VI result: Level III Left ear PTA: 45 Left ear speech discrimination score: 76% Table VI result: Level III November 2019 Hertz 1000 2000 3000 4000 Right Ear 25 45 50 60 Left Ear 30 45 55 65 Right ear PTA: 45 Right ear speech discrimination score: 84% Table VI result: Level II Left ear PTA: 45 Left ear speech discrimination score: 78% Table VI result: Level III In addition to the above audiometric testing results, the Board acknowledges the Veteran’s statements as to the functional impact of his hearing loss. In January 2014 the Veteran reported to VA treating providers that he could not hear words clearly, particularly when his wife spoke. At his January 2015 VA examination the Veteran reported particular difficulty hearing female voices. A June 2018 VA audiology note reflects the Veteran’s report of a possible decrease in his earing acuity since the February 2017 evaluation, as he reported more difficulty understanding what certain speakers, such as his wife, were saying. A May 2019 VA audiology note again reflects the Veteran’s complaint of subjective decrease in hearing acuity since his last evaluation. In November 2019 the Veteran reported to a VA examiner that he could not understand his wife, even when she spoke close by to him, and reported difficulty hearing and/or understanding the television. In this regard, the Board again notes that VA evaluates service-connected hearing loss through the mechanical application of a veteran’s audiometric testing results to the rating tables. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). (Continued on the next page)   The Board also acknowledges the Veteran’s contention, reflected in his representative’s October 2020 brief to the Board, that the conditions of his various audiometric testing sessions do not reproduce the conditions of every day life, and so the results do not reflect the functional experience of the severity of his hearing loss. The Court of Appeals for Veterans Claims (CAVC) addressed this issue in Doucette v. Shulkin, 28 Vet. App. 366 (2017). In Doucette, CAVC held that “[i]n light of the plain language of §§ 4.85 and 4.86, as well as the regulatory history of those sections . . . the rating criteria for hearing loss contemplate the functional effects of decreased hearing and difficulty understanding speech in an everyday work environment, as these are precisely the effects that VA's audiometric tests are designed to measure. Thus, when a claimant's hearing loss results in an inability to hear or understand speech or to hear other sounds in various contexts, those effects are contemplated by the schedular rating criteria.” As shown above, for the entire period on appeal, the weight of the evidence is against a finding that the Veteran’s bilateral hearing loss manifested as more severe than Level III under Table VI. Therefore, the Board concludes that the criteria for a compensable disability rating for bilateral hearing loss are not met. 38 C.F.R. § 4.85. Accordingly, entitlement to an initial compensable rating for bilateral hearing loss for the entire period on appeal is denied. Id. Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. C. Sametshaw 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.