Citation Nr: 21011244 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 15-36 826 DATE: March 1, 2021 ORDER Entitlement to an initial compensable rating for bilateral hearing loss is denied. FINDING OF FACT Veteran’s bilateral hearing has been manifested by hearing acuity of no worse than Level III in the right ear and no worse than Level II in the left ear. CONCLUSION OF LAW The criteria for a compensable rating for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from January 1982 to August 1983. This appeal stems from a June 2013 rating decision by the Department of Veterans’ Affairs (VA) Agency of Original Jurisdiction (AOJ) granting service connection for bilateral hearing loss at a noncompensable (zero percent) rating. The Veteran perfected his appeal of the initial rating to the Board of Veteran’s Appeals (Board). In an August 2018 decision, the Board remanded the case for additional development. The Board finds that there has been substantial compliance with the August 2018 Remand directives and therefore the Board can adjudicate the claim on the merits under the legacy appeal framework. Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person’s ordinary activity. 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 1. Entitlement to an initial compensable rating for bilateral hearing loss The Veteran contends he is entitled to a higher, compensable, rating for his hearing loss disability because he has confirmed hearing loss based on evaluation from three doctors. Evaluations of defective hearing range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of a controlled Maryland CNC speech discrimination test together with the average hearing threshold level measured by pure tone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hertz). 38 C.F.R. § 4.85, Diagnostic Code 6100. To evaluate the degree of disability from bilateral service-connected hearing loss, the schedule establishes 11 auditory hearing acuity levels designated from Level I for essentially normal hearing acuity through Level XI for profound deafness. 38 C.F.R. § 4.85, Tables VI and VII. An exceptional pattern of hearing impairment occurs when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more. 38 C.F.R. § 4.86(a). In that situation, 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. Further, when the average pure tone 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, and that numeral will then be elevated to the next higher numeral. 38 C.F.R. § 4.86(b). A May 2013 VA examination reveals that the Veteran reported having to ask people to repeat in conversation and that he speaks loudly in order to monitor his voice. On examination, the Veteran’s Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 20 30 30 65 35 76 LEFT 20 25 25 30 25 88 Applying the results to Table VI, the findings yield a numeric designation of Level III in the right ear and Level II in the left ear. Entering the resulting bilateral numeric designation of Level II for the right ear and Level II for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a zero percent disability rating under Diagnostic Code 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. A September 2014 VA examination reveals that the Veteran reported having to ask people to repeat themselves to understand, especially in background noise. The Veteran’s Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 10 5 15 55 21 100 LEFT 10 10 20 55 24 96 Applying the results to Table VI, the findings yield a numeric designation of Level I in the right ear and Level I in the left ear. Entering the resulting bilateral numeric designation of Level I for the right ear and Level I for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a zero percent disability rating under Diagnostic Code 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. A October 2019 VA examination reveals that the Veteran reported some difficulties hearing conversational speech especially when communicating in noisy environments. The Veteran’s Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 25 25 25 70 36 94 LEFT 25 25 25 40 29 94 Applying the results to Table VI, the findings yield a numeric designation of Level I in the right ear and Level I in the left ear. Entering the resulting bilateral numeric designation of Level I for the right ear and Level I for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a zero percent disability rating under Diagnostic Code 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. A January 2020 VA examination reveals that the Veteran reported having to ask people to repeat themselves to understand speech. The Veteran’s Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 15 15 20 60 28 96 LEFT 15 10 15 25 16 96 Applying the results to Table VI, the findings yield a numeric designation of Level I in the right ear and Level I in the left ear. Entering the resulting bilateral numeric designation of Level I for the right ear and Level I for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a zero percent disability rating under Diagnostic Code 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. The Veteran submitted a January 2015 private audio examination report in support of his claim. The January 2015 private audio examination, however, does not meet the minimum requirements as set forth by 38 C.F.R. 4.85 and therefore is not usable for rating purposes. The Board is unable to definitively determine from the face of the January 2015 audio examination report if the examiner used the Maryland CNC word list and whether the examination was conducted by a state licensed audiologist. In response to the August 2018 remand instructions, the AOJ requested this information from the company that administered the audio examination. A March 2018 response from the private examination company included a copy of the January 2015 audio examination results without the word list. Further, the response does not identify if the word list accompanying the January 2015 examination used is the Maryland CNC word list. Further, the response does not identify whether the signer/examiner is a state licensed audiologist. In July 2020, the VA again requested information from the private examination company to clarify whether the January 2015 audio examination used the Maryland CNC word list and if it was conducted by a state licensed audiologist. The company did not response to the request. The Veteran was also unable to provide this information. Therefore, the Board finds the VA conducted due diligence to determine if the January 2015 audio examination was met the requirements of 38 C.F.R. § 4.85(a). The Veteran has not undergone any other VA-compliant hearing examinations during the appeal period. He is competent to report the symptoms and history of his hearing loss. However, he is not competent to determine whether his hearing loss constitutes a compensable hearing disability for VA purposes as it is determined by a mechanical application of the definition found in 38 C.F.R. § 4.85 to audiometric (pure tone threshold and Maryland CNC) testing results. The Board finds no evidence that a speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc., or when there is an exceptional pattern of hearing loss under § 4.86. See generally 38 C.F.R. § 4.85(a) (if there is an exceptional pattern of hearing loss, the requirements of § 4.85(a) regarding examination adequacy for rating purposes still apply.) Because it cannot be confirmed that the speech recognition scores are Maryland CNC, the audiometric evaluation is not adequate for rating purposes under § 4.85(a) and is given no probative weight. The Board expressly acknowledges its consideration of the lay evidence of record when adjudicating this claim, including the Veteran’s August 2015, October 2015, May 2016 statements that his hearing has deteriorated, that he now uses hearing aids issued by the VA that are affecting his life, and that on windy days the sound application is such that he must remove the hearing aids. The Veteran is competent to report difficulty with his hearing; however, disability ratings for hearing loss are derived from a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). The rating criteria contemplate speech reception thresholds and ability to hear spoken words on Maryland CNC testing. The functional impact that the Veteran describes, is contemplated by the rating criteria. Doucette v. Shulkin, 28 Vet. App. 366 (2017). The Veteran’s main complaint is reduced hearing acuity and clarity, which is what is contemplated in the rating assigned. See Rossy v. Shulkin, 29 Vet. App. 142, 145 (2017). Although the Board acknowledges the Veteran’s contentions, the four VA examinations in no way objectively indicate that the Veteran’s hearing has progressed to warrant a compensable rating. Should the Veteran’s hearing further worsen, he may apply for a higher rating for hearing loss at that time. However, the Board finds that entitlement to a higher, compensable, evaluation for bilateral hearing loss based on the evidence of the record is not warranted. Accordingly, the preponderance of the most probative evidence is against the claim of entitlement to a compensable rating for hearing loss. In reaching the conclusion above, the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran’s claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Boushehri, Darjush M. 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.