Citation Nr: 21011095 Decision Date: 02/26/21 Archive Date: 02/26/21 DOCKET NO. 18-34 079 DATE: February 26, 2021 ORDER Entitlement to an increased rating in excess of 0 percent for bilateral hearing loss is denied. FINDING OF FACT The Veteran’s bilateral hearing impairment has been Level I for the right ear and Level I for the left ear, Level I for the right ear and Level II for the left ear, and Level II for the right ear and Level II for the left ear. CONCLUSION OF LAW The criteria for a compensable rating for a bilateral hearing loss disability have not been met or approximated. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.10, 4.85 Diagnostic Code 6100, 4.86. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from January 1964 to January 1968 and from January 1991 to March 1991. The matter on appeal arises from a December 2017 rating decision. Increased Rating Disability ratings are determined by the application of a schedule of ratings that is based on average impairment of earning capacity. 38 U.S.C. § 1155 (West 2012). Percentage ratings are determined by comparing the manifestations of a disability with the requirements contained in VA’s Schedule for Rating Disabilities. The percentage ratings contained in the Rating Schedule represent, as far as can practically be determined, the average impairment in earning capacity resulting from a disease or injury and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In view of the number of atypical instances, it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. 38 C.F.R. § 4.21. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent with the facts shown in every case. Any reasonable doubt regarding the degree of disability is resolved in favor of the Veteran. 38 C.F.R. § 3.102, 4.3. The assignment of a disability rating for hearing loss is derived by a mechanical application of the rating schedule to the specific numeric designations assigned after audiology testing is completed. Lendenmann v. Principi, 3 Vet. App. 345 (1992). An examination for hearing impairment for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a puretone audiometry test. 38 C.F.R. § 4.85. The rating schedule establishes 11 auditory hearing acuity levels based upon average puretone thresholds and speech discrimination. See 38 C.F.R. § 4.85. “Puretone threshold average” as used in Tables VI and VIa is the sum of the puretone thresholds at 1000, 2000, 3000 and 4000 Hertz and divided by four. This average is used in all cases (including those of §4.86) to determine a Roman numeral designation from Tables VI and VIa. 38 C.F.R. § 4.85 (d). Table VI, “Numeric Designation of Hearing Impairment Based on Puretone Threshold Average and Speech Discrimination,” is used to determine a Roman numeral designation (I through XI) for hearing impairment based on a combination of the percent of speech discrimination (horizontal rows) and the puretone threshold average (vertical columns). The Roman numeral designation is located at the point where the row and column intersect. 38 C.F.R. § 4.85 (b). Table VIa, “Numeric Designation of Hearing Impairment Based Only on Puretone Threshold Average,” is used to determine a Roman numeral designation (I through XI) for hearing impairment based only on puretone threshold average. Table VIa is used when the examiner certifies that the use of the speech discrimination test is not appropriate due to language difficulties, inconsistent speech discrimination scores, etc., or when indicated under the provisions of § 4.86. 38 C.F.R. § 4.85 (c). Table VII, “Percentage Evaluations of Hearing Impairment,” is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment in each ear. The horizontal rows represent the ear having better hearing and the vertical columns represent the ear having the poorer hearing. The percentage evaluation is located at the point where the row and the column intersect. 38 C.F.R. § 4.85 (e). Special provisions apply in instances of exceptional hearing loss. See 38 C.F.R. § 4.86. When the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) are all 55 decibels or more, the adjudicator must determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa in 38 C.F.R. § 4.85, whichever results in the higher numeral. 38 C.F.R. § 4.86 (a). Also, when the puretone 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 designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. That numeral will then be elevated to the next higher Roman numeral. Each ear is evaluated separately. 38 C.F.R. § 4.86 (b). 1. Entitlement to an increased rating in excess of 0 percent for bilateral hearing loss is denied. The Veteran is seeking a rating in excess of 0 percent for bilateral hearing loss, rated under Diagnostic Code 6100, 38 C.F.R. § 4.71a. The relevant temporal focus for this disability is one year prior to the date of receipt of the increased rating claim, which is from September 1, 2016. 38 C.F.R. § 3.400. For the following reasons, the Veteran’s service-connected bilateral hearing loss symptomatology did not more nearly approximate that required for a higher rating in excess of 0 percent under Diagnostic Code 6100. The Veteran underwent a VA Hearing Loss and Tinnitus Disability Benefits Questionnaire (DBQ) in December 2017. The examiner confirmed bilateral hearing loss. The results of the December 2017 audiological diagnostic test, as measured by puretone audiometry test, are: (1) for the Veteran’s right ear: 25, 25, 25, 55, and 80 decibels at 500, 1000, 2000, 3000 and 4000 Hertz, respectively, and (2) for the Veteran’s left ear, 25, 20, 25, 60, and 75 decibels at 500, 1000, 2000, 3000 and 4000 Hertz, respectively. Based on these results, the average puretone threshold was 46.25 decibels for the right ear and 45 decibels for the left ear. See 38 C.F.R. § 4.85 (d). Speech recognition was 96 percent for the right ear and 96 percent for the left ear, as measured by the Maryland CNC test. From applying these values to Table VI, the result is a Level I Roman numeral designation for the right ear and a Level I for the left ear. When the designations of Level I for the right ear and Level I for the left ear are applied to Table VII, the result is a 0 percent rating. The Veteran underwent another VA Hearing Loss and Tinnitus DBQ in December 2018. The results of the December 2018 audiological diagnostic test, as measured by puretone audiometry test, are: (1) for the Veteran’s right ear: 45, 35, 40, 65, and 85 decibels at 500, 1000, 2000, 3000 and 4000 Hertz, respectively, and (2) for the Veteran’s left ear, 40, 40, 55, 80, and 85 decibels at 500, 1000, 2000, 3000 and 4000 Hertz, respectively. Based on these results, the average puretone threshold was 56.25 decibels for the right ear and 65 decibels for the left ear. See 38 C.F.R. § 4.85 (d). Speech recognition was 90 percent for the right ear and 94 percent for the left ear, as measured by the Maryland CNC test. From applying these values to Table VI, the result is a Level I Roman numeral designation for the right ear and a Level II for the left ear. When the designations of Level I for the right ear and Level II for the left ear are applied to Table VII, the result is a 0 percent rating. The Veteran underwent another VA Hearing Loss and Tinnitus DBQ in October 2020. The results of the October 2020 audiological diagnostic test, as measured by puretone audiometry test, are: (1) for the Veteran’s right ear: 40, 40, 40, 55, and 75 decibels at 500, 1000, 2000, 3000 and 4000 Hertz, respectively, and (2) for the Veteran’s left ear, 50, 40, 40, 65 and 75 decibels at 500, 1000, 2000, 3000 and 4000 Hertz, respectively. Based on these results, the average puretone threshold was 53 decibels for the right ear and 55 decibels for the left ear. See 38 C.F.R. § 4.85 (d). Speech recognition was 88 percent for the right ear and 88 percent for the left ear, as measured by the Maryland CNC test. From applying these values to Table VI, the result is a Level II Roman numeral designation for the right ear and a Level II for the left ear. When the designations of Level II for the right ear and Level II for the left ear are applied to Table VII, the result is a 0 percent rating. While the Board notes that the Veteran was provided with private audiological diagnostic tests in October 2011, January 2013, August 2017, and June 2018, the results of these examinations cannot be used to determine the disability rating for the bilateral hearing loss. It is unclear from the face of these records whether these private audiological examinations used the requisite Maryland CNC controlled speech discrimination test as the word test. Furthermore, a remand to obtain clarification from the private examiners as to which type of word test was utilized would be unreasonable because, here, even assuming that the controlled speech discrimination test listed was the Maryland CNC test, the results of these exams would not warrant a compensable disability evaluation. See Savage v. Shinseki, 24 Vet. App. 259 (2011). The Board has also considered the Veteran’s lay statements, in which he generally contends that his hearing is worse than currently rated. However, as indicated above, rating a hearing loss disability involves the mechanical application of rating criteria to the results of specified audiometric studies. Here, the objective medical evidence of record consists of audiological examinations, which show that the Veteran’s hearing loss does not rise to the level of higher than 0 percent. Based on the objective medical evidence of record, the Board finds that the Veteran’s service-connected bilateral hearing loss does not rise to a compensable disability rating. The preponderance of the evidence is against entitlement to a higher rating. The benefit-of- the-doubt rule is not applicable here. Furthermore, all potentially applicable codes have been considered, and there is no basis to assign an evaluation in excess of the currently assigned ratings for the Veteran’s bilateral hearing loss. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). Therefore, the Veteran’s claim for a higher rating in excess of 0 percent for bilateral hearing loss is denied. 38 U.S.C. § 5107 (b); Gilbert, 1 Vet. App. at 54-56. In this regard, the Board in no way discounts the difficulties that the Veteran experiences as a result of his hearing loss. However, it must be emphasized, as previously noted, that the disability ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designation assigned after audiometry results are obtained. Hence, the Board must base its determination on the results of the pertinent VA audiology studies. 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 Veteran’s audiometry results. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Under these circumstances, the Board finds that the record presents no basis for assignment of a disability rating higher than the 0 percent disability rating assigned for the Veteran’s service-connected bilateral hearing loss. (Continued on the next page)   Accordingly, the Veteran’s claim for an evaluation in excess of 0 percent for bilateral hearing loss is denied. See Lendenmann, 3 Vet. App. at 349. YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. J. Cho, 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.