Citation Nr: 21015168 Decision Date: 03/16/21 Archive Date: 03/16/21 DOCKET NO. 17-17 100A DATE: March 16, 2021 ORDER Entitlement to an initial compensable rating for bilateral hearing loss is denied. FINDING OF FACT Throughout the appeal, the Veteran’s hearing loss has been manifested by hearing acuity of no worse than Level II in the right ear and no worse than Level II in the left ear. CONCLUSION OF LAW The criteria for entitlement to an initial compensable rating for bilateral hearing loss are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 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 Air Force from March 1965 to April 1987. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2015 rating decision of an Agency of Original Jurisdiction (AOJ) of the Department of Veterans Affairs (VA). In January 2020, the Board remanded this matter for additional development. Specifically, the Board directed that the AOJ obtain updated records, request additional information about a private audiological examination report submitted by the Veteran and that the Veteran be afforded an updated examination. See January 2020 Board Remand at 2. Law and Regulations 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, DC 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). Substantial Compliance with Remand Directives There has been substantial compliance with the January 2020 remand directives. Updated VA records were received, and the Veteran submitted updated records from his private audiological provider. See February 2020 Medical Treatment Record; February 2020 Statement in Support of Claim. Although the Veteran’s audiologist was not directly contacted to ascertain whether the Maryland CNC speech recognition test was used in the 2017 private audiological examination, the Board observes that the updated examination report provided by the Veteran states that NU-6 word lists (and not the Maryland CNC list) was used. See February 2020 Medical Treatment Record at 2 (Note 1 and 2). Critically, the Board observes that the 2017 private audiological examination report also states that the NU-6 test was used, albeit in a different location on the examination report. See April 2017 Private Examination Report (General Report Comments); see also August 2020 Examination Report (Audiological Evaluation at 3) (noting that Maryland CNC and NU-6 are distinct tests for speech recognition). As the purpose of this remand directive was to determine whether the CNC test was used (and thus whether the private examination reports were adequate for rating purposes), and as the examination reports facially state that the NU-6 test was used, there is substantial compliance, as the Board can clearly determine that the private examination reports are not adequate for rating purposes. See 38 C.F.R. § 4.85(a). Additionally, the July 2020 audiological examination postdates any private audiological report of record, used the Maryland CNC test, and is adequate for rating purposes. Rating for Bilateral Hearing Loss The Veteran asserts that he is entitled to a compensable rating because his hearing loss is severe and requires the use of hearing aids, and thus the examiner’s failure to consider this shows that the file was not adequately reviewed. Moreover, he asserts that his hearing loss is due to service as he was exposed to loud noise during his thousands of hours of flight time on military aircraft. An April 2015 VA audiology examination reveals that the Veteran reported difficulty in understanding speech in most situations, especially the telephone, radio, TV, in groups, and with background noise. 38 C.F.R. § 4.10; Martinak v. Nicholson, 21 Vet. App. 447 (2007). The Veteran’s Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: Apr. 2015 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 30 45 55 60 48 98% LEFT 30 40 55 70 49 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 DC 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. The Veteran submitted a private audiological examination report conducted in April 2017, as well as a private audiological examination report conducted in February 2020. See April 2017 Private Examination Report; February 2020 Private Examination Report. However, these examination reports are not adequate for rating purposes, as the examiner did not conduct a speech discrimination test using the Maryland CNC word list, but instead conducted a word recognition test using the NU-6 word list. See id. The Board observes that even if the correct speech test had been used, which it was not, the 2017 and 2020 private audiological findings would warrant a zero percent rating. An August 2020 VA-contracted audiology examination reveals that the Veteran reported that he uses hearing aids and without them he cannot make out words and misses 80 percent or more of what people are saying. 38 C.F.R. § 4.10; Martinak v. Nicholson, 21 Vet. App. 447 (2007). The Veteran’s Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: Aug. 2020 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 40 40 80 80 60 98% LEFT 50 55 85 85 69 100% Applying the results to Table VI, the findings yield a numeric designation of Level II 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 DC 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. The Board observes that the Veteran’s representative objected to the examination reports and noted that the August 2020 VA-contracted examination shows increased pure tone hearing thresholds as well as higher speech discrimination, as compared to the April 2015 VA examination report, and argued that this result does not make sense. The Board understands the representative’s argument; however, the record does not show that the representative is competent to opine as to what audiological testing results are normal. Moreover, the Board acknowledges the Veteran’s argument that the 2015 examiner did not review his medical records and was not familiar with the fact that he needed hearing aids. Here, the record shows that the 2020 examiner knew that the Veteran used hearing aids, by the Veteran’s own report, and that a medical history was obtained from the Veteran. The Veteran is advised that the requirement for hearing aids is not sufficient to warrant a compensable rating for hearing loss, as the hearing loss ratings are based on objective test results. Indeed, the Veteran is advised that he very nearly met the requirements for a compensable rating, as his left ear pure tone threshold was measured at 50 decibels and a measurement of 55 decibels would have warranted a 10 percent rating. The Board acknowledges the Veteran’s report of difficulty hearing speech in person and through electronic media. 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). Here, there are no examination findings that warrant a rating in excess of zero percent. Thus, entitlement to an initial compensable rating is denied. S. BUSH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D.M. Badaczewski, 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.