Citation Nr: 21015117 Decision Date: 03/16/21 Archive Date: 03/16/21 DOCKET NO. 19-33 768 DATE: March 16, 2021 ORDER An initial compensable rating for left ear hearing loss is denied. FINDING OF FACT The Veteran’s left ear hearing loss has been manifested, at its worst, by Level VI hearing loss. CONCLUSION OF LAW The criteria for an initial compensable rating for left ear hearing loss have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.85, 4.86, Diagnostic Code (DC) 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from October 1955 to November 1959 and from November 1959 to July 1975. This matter was previously before the Board in March 2019 and November 2020 at which time it was remanded for further evidentiary development. Substantial compliance with the remand requests having been accomplished, the Board may proceed to consider the claim. See Stegall v. West, 11 Vet. App. 268 (1998). The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Increased Rating Service connection for the Veteran’s left ear hearing loss was granted at a noncompensable rate, effective May 14, 2014. The Veteran timely appealed. As such, the Board will consider whether a compensable rating is warranted for left ear hearing loss from May 14, 2014, to the present. Disability evaluations are determined by the application of the facts presented to VA’s Rating Schedule at 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 military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Ratings of hearing loss range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of speech discrimination tests combined with the average hearing threshold levels as measured by pure tone audiometry tests in the frequencies 1000, 2000, 3000, and 4000 cycles per second. To rate the degree of disability for service-connected hearing loss, the Rating Schedule has established eleven auditory acuity levels, designated from Level I, for essentially normal acuity, through Level XI, for profound deafness. 38 C.F.R. § 4.85(h), Table VI. In order to establish entitlement to a compensable rating for hearing loss, it must be shown that certain minimum levels of the combination of the percentage of speech discrimination loss and average pure tone decibel loss are met. The assignment of disability ratings for hearing impairment is derived by a mechanical application of the Rating Schedule to the numeric designations assigned after audiometric evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). The criteria for rating hearing impairment use controlled speech discrimination tests (Maryland CNC) together with the results of puretone audiometry tests. These results are then charted on Table VI, Table VIA in exceptional cases as described in 38 C.F.R. § 4.86, and Table VII, as set out in the Rating Schedule. 38 C.F.R. § 4.85. An exceptional pattern of hearing loss occurs when the puretone threshold at 1000, 2000, 3000, and 4000 Hertz is 55 decibels or more, or when the puretone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz. 38 C.F.R. § 4.86. Specifically, when the puretone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz, the Roman numeral designation for hearing impairment is determined from either Table VI or Table VIA, whichever results in the higher numerical. 38 C.F.R. § 4.86(b). That numeral will then be elevated to the next higher Roman numeral, and then each ear will be evaluated separately. Id. If impaired hearing is service-connected in only one ear, as in the instant case, in order to determine the percentage evaluation from Table VII, the nonservice-connected ear will be assigned a Roman Numeral designation for hearing impairment of I. 38 C.F.R. § 4.85(f). Pursuant to 38 C.F.R. § 3.383, when hearing impairment in one ear compensable to a degree of 10 percent or more as a result of service-connected disability and hearing impairment as a result of nonservice-connected disability that meets the provisions of 38 C.F.R. § 3.385 in the other ear is shown to be present, compensation is payable for the combination of the service-connected hearing loss and nonservice-connected hearing loss as if both disabilities are service connected, provided the nonservice-connected disability is not the result of the Veteran’s own willful misconduct. Under 38 C.F.R. § 3.385, impaired hearing is considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, and 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. In Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007), the United States Court of Appeals for Veterans Claims (Court) held that relevant to VA audiological examinations, 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. Id. Turning to the evidence of record, private treatment records from June 2015 reflected a diagnosis of acute otitis media in the Veteran’s left ear following reports of a sensation of a plugged ear and decreased hearing. The Veteran underwent a VA examination in September 2015. Audiological testing revealed the following puretone thresholds, in decibels: HERTZ 500 1000 2000 3000 4000 RIGHT 20 20 45 60 65 LEFT 50 55 60 90 90 The puretone threshold average was 47.5 in the right ear and 73.75 in the left ear. Speech recognition testing using the Maryland CNC Word List demonstrated speech recognition ability of 100 percent in the bilateral ears. The examiner determined there was no functional impact from the left ear hearing loss. Private treatment records from October 2015 reflected that an audiogram had demonstrated mild sloping to profound mixed hearing loss in the left ear from 250 to 8000 Hz. The clinician noted that there was a significant change from prior testing. The Veteran’s ear was plugged during the examination. The clinician noted that the Veteran was much improved subjectively since the last visit. In a December 2015 VA treatment record, the Veteran reported aural fullness and occasional dizziness when standing quickly. Audiological testing demonstrated mild sloping to severe sensorineural hearing loss from 250 to 8000 Hz in the left ear. It was noted that the Veteran had a fair ability to understand speech in the left ear. In a May 2016 private treatment record, it was noted that the Veteran was cleared for hearing aids. Another VA examination was conducted in June 2016. The Veteran reported that he had trouble hearing. Audiological testing revealed the following puretone thresholds, in decibels: HERTZ 500 1000 2000 3000 4000 RIGHT 25 30 45 60 70 LEFT 45 55 45 65 80 The puretone threshold average was 51.25 in the right ear and 61.25 in the left ear. Speech recognition testing using the Maryland CNC Word List demonstrated speech recognition ability of 100 percent in the right ear and 96 percent in the left ear. A July 2016 VA audiological consultation demonstrated moderate to profound mixed hearing loss in the left ear from 250 to 8000 Hz. Word recognition was 72 percent. The Veteran subsequently received hearing aids. In an April 2017 statement, the Veteran reported that his hearing aids were of little help to him. When talking with family members and others, it was extremely hard to communicate with them, affecting his everyday living conditions when talking with others. The Veteran described turning up the television and radio, often asking people to repeat themselves, and having difficulties hearing low tones and whispers. The Veteran underwent another VA examination in August 2020 and reported that he had to wear hearing aids to understand conversations, he had to ask people to repeat themselves frequently, and his friends complained if he set the television volume too high. Audiological testing revealed the following puretone thresholds, in decibels: HERTZ 500 1000 2000 3000 4000 RIGHT 25 35 50 60 80 LEFT 60 80 55 85 85 The puretone threshold average was 56.25 in the right ear and 76.25 in the left ear. Speech recognition testing using the Maryland CNC Word List demonstrated speech recognition ability of 100 percent in the right ear and 96 percent in the left ear. An initial compensable rating for left ear hearing loss is denied. The VA examinations reflected that at least one puretone threshold was 55 or more, or an exceptional pattern of hearing under 38 C.F.R. § 4.86. The puretone threshold averages are more advantageous to the Veteran under Table VIA. Under Table VIA, at worse, the Veteran’s left ear hearing loss has equated to Level VI. Applying Level VI in the left ear and Level I in the nonservice-connected right ear to Table VII, the Veteran’s left ear hearing acuity equates to a noncompensable disability rating. 38 C.F.R. § 4.85, Table VII. As hearing impairment in one ear is not compensable to a degree of 10 percent or more as a result of service-connected disability, compensation is not payable for hearing loss in both ears. 38 C.F.R. § 3.383. As such, a compensable rating is not warranted for left ear hearing loss. To the extent that the Veteran may believe that his hearing loss is more severe than currently evaluated, the Board observes that, although he is competent to report symptoms such as difficulty understanding speech or hearing clearly with background noise, he is not competent to report that his hearing acuity is of sufficient severity to warrant a particular evaluation under VA’s tables for rating hearing loss disabilities because such an opinion requires medical expertise (training in evaluating hearing impairment), which she has not been shown to have. Further, disability ratings for hearing loss are derived by a mechanical application of the rating schedule. Lendenmann v. Principi, 3 Vet. App. at 349. Thus, the Board has no discretion in this matter and must predicate its determination on the results of the audiological examinations of record. Here, mechanical application of the rating schedule to the audiometric findings establishes entitlement to a noncompensable rating for bilateral hearing loss. As such, a compensable rating is not warranted for bilateral hearing loss. The Board finds that the Veteran’s disability is fully capable of evaluation under the rating schedule. Shereen M. Marcus Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Rachel E. Jensen, 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.