Citation Nr: 21011571 Decision Date: 03/02/21 Archive Date: 03/02/21 DOCKET NO. 17-44 456 DATE: March 2, 2021 ORDER A compensable initial rating for bilateral hearing loss is denied. FINDING OF FACT Throughout the period on appeal, the Veteran’s hearing loss was manifested by no worse than Level II hearing impairment bilaterally. CONCLUSION OF LAW The criteria for a compensable initial rating for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.21, 4.85, 4.86, DC 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from October 1965 to September 1969, including foreign and/or sea service. He testified during a February 2020 videoconference hearing. A transcript of this proceeding has been associated with the record. This appeal was then remanded by the Board in March 2020 for additional development, which has since been completed. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Initial Rating The Veteran is currently pursuing a compensable initial rating for his bilateral hearing loss. Disability ratings are determined by the applications of the VA’s Schedule for Rating Disabilities. 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. With hearing loss disabilities, evaluations range from noncompensable to 100 percent based on organic impairment of hearing acuity, as measured by controlled speech discrimination tests in conjunction with the average hearing threshold, as measured by puretone audiometric tests in the frequencies 1,000, 2,000, 3,000 and 4,000 cycles per second. The rating schedule establishes 11 auditory acuity levels designated from Level I, for essentially normal hearing acuity, through Level XI for profound deafness. VA audiometric examinations are conducted using a controlled speech discrimination test (Maryland CNC) together with the results of a puretone audiometry test. In 38 C.F.R. § 4.85, the vertical lines of Table VI represent nine categories of the percentage of discrimination based on the controlled speech discrimination test. The horizontal columns of Table VI represent nine categories of decibel (dB) loss based on the puretone audiometry test. The numeric designation of impaired hearing (Levels I through XI) is determined for each ear by intersecting the vertical row appropriate for the percentage of discrimination and the horizontal column appropriate to the puretone decibel loss. The percentage disability evaluation is then found from Table VII of 38 C.F.R. § 4.85, by intersecting the vertical column appropriate for the numeric designation for the ear having the better hearing acuity and the horizontal row appropriate to the numeric designation level for the ear having the poorer hearing acuity. Further, the provisions of 38 C.F.R. § 4.86 address exceptional patterns of hearing impairment. When the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz (Hz)) is 55 dB or more, 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. 38 C.F.R. § 4.86(a). Each ear will be evaluated separately. Further, when the puretone threshold is 30 decibels or less at 1,000 Hz and 70 dB or more at 2,000 Hz, 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. 38 C.F.R. § 4.86(b). That numeral will then be elevated to the next higher Roman numeral. Id. This Veteran has undergone multiple examinations during the period on appeal. First, a September 2010 private evaluation yielded the following results: HERTZ 500 1000 2000 3000 4000 RIGHT 35 35 35 40 45 LEFT 30 25 30 40 55 Although the examiner provided puretone threshold averages, they are not offered in conjunction with VA regulations regarding such calculations. 38 C.F.R. § 4.85(d). Rather, as calculated by the Board, puretone threshold averages were 38.75 percent for the right ear and 37.5 percent for the left ear at that time. Speech recognition scores were also documented as 100 percent bilaterally. These results are properly rated under Table VI, such that the hearing impairment levels correspond to Level I bilaterally. Intersecting Levels I and I under Table VII result in a noncompensable disability rating, as currently assigned. See 38 C.F.R. § 4.85(c). The Veteran then underwent VA examination in July 2011, which yielded the following results: HERTZ 500 1000 2000 3000 4000 RIGHT 30 35 35 40 50 LEFT 30 30 35 45 55 As calculated by the examiner, puretone threshold averages were 40 percent for the right ear and 41.25 percent for the left ear. Additionally, the Veteran registered speech recognition scores of 94 percent bilaterally. These results are also properly rated under Table VI, such that the hearing impairment levels again correspond to Level I bilaterally. Intersecting Levels I and I under Table VII result in a noncompensable disability rating, as currently assigned. See 38 C.F.R. § 4.85(c). The Veteran next underwent private evaluation in March 2012, which yielded the following test results: HERTZ 500 1000 2000 3000 4000 RIGHT 25 30 30 40 50 LEFT 25 20 30 45 55 Again, the private examiner offered puretone threshold averages that do not correspond with VA regulations governing the matter. Rather, the Board has calculated puretone threshold averages to be 37.5 percent bilaterally. Additionally, the Veteran registered speech recognition scores of 92 percent bilaterally. These results are properly rated under Table VI, such that the hearing impairment levels continue to correspond to Level I bilaterally. Intersecting Levels I and I under Table VII result in a noncompensable disability rating, as currently assigned. See 38 C.F.R. § 4.85(c). Most recently, the Veteran underwent VA audiological examination in March 2020, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 35 40 50 55 65 LEFT 35 40 50 60 65 As calculated by the examiner (who appropriately rounded the percentages up), puretone threshold averages were 53 percent for the right ear and 54 percent for the left ear. At that time, the Veteran registered a speech recognition score of 84 percent for the right ear and 88 percent in the left ear. These results are properly rated under Table VI, such that most recent hearing impairment levels correspond to Level II bilaterally. Intersecting Levels II and II under Table VII result in a noncompensable disability rating, as currently assigned. See 38 C.F.R. § 4.85(c). The remaining evidence, including VA and private treatment records, does not contain additional audiological testing for consideration. Thus, the record contains no audiological evaluation which justifies the assignment of a compensable initial rating for the Veteran’s bilateral hearing loss. As such, the appeal seeking a higher rating is denied. In offering this finding, the Board has considered the Veteran’s contention that his bilateral hearing loss is of a compensable degree. However, he lacks the requisite training and expertise to competently assess his symptoms against the applicable rating criteria. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Moreover, the assignment of disability ratings for hearing impairment is derived from the application of a mechanical formula. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). In this case, this formula does not yield a compensable rating for the Veteran’s levels of hearing loss at any time during the period on appeal, and there is no evidence that the provided test results are not competent and credible. See, e.g., July 2011 and March 2020 VA examinations (documenting the validity of both puretone threshold results and speech discrimination scores in both instances). Instead, the full scope of his symptoms—specifically, bilateral hearing loss—is properly compensated in the noncompensable rating as currently assigned. See generally VA and private treatment records (documenting no additional symptoms related to the Veteran’s bilateral hearing loss). In sum, the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply, and the appeal is hereby denied. Of final note, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board’s consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Evan M. Deichert Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Kovarovic, 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.