Citation Nr: 21015299 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 16-27 891 DATE: March 17, 2021 ORDER An initial compensable rating for bilateral hearing loss is denied. FINDING OF FACT For the entire period of appeal, the hearing loss is manifested by no more than Level III hearing acuity in the right ear and Level II hearing acuity in the left ear based on pure tone threshold average and speech discrimination. CONCLUSION OF LAW The criteria for an initial 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 Navy from July 1959 to June 1961. In June 2019, the Veteran and his spouse testified at a videoconference hearing before the undersigned, and a transcript of that hearing is of record. The Board remanded the issue in July 2019 and September 2020 for further development, including obtaining missing VA audiograms, obtaining any outstanding relevant treatment records, and affording the Veteran a VA hearing loss examination. The missing audiograms have since been associated with the claims file, VA and private treatment records have also been associated with the claims file, and the Veteran had a VA audiological examination in January 2020. The Board therefore finds there has been substantial compliance with the remand directives. See D’Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Stegall v. West, 11 Vet. App. 268 (1998). 1. Increased rating for bilateral hearing loss. Disability evaluations are determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule), 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 civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. All reasonable doubt will be resolved in the claimant’s favor. 38 C.F.R. § 4.3. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Where the evaluation of hearing loss is at issue, an examination for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a pure tone audiometry test. Examinations will be conducted without the use of hearing aids. 38 C.F.R. § 4.85(a). A rating for hearing loss is determined by a mechanical application of the rating schedule to the numeric designations assigned based on audiometric test results. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). Evaluations of bilateral hearing loss range from noncompensable to 100 percent based on organic impairment of hearing acuity, as measured by a controlled speech discrimination test and the average hearing threshold, as measured by pure tone audiometric tests at the frequencies of 1000, 2000, 3000 and 4000 hertz. The rating schedule establishes 11 auditory acuity levels designated from Level I, for essentially normal hearing acuity, through level XI for profound deafness. Under 38 C.F.R. § 4.85, 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 pure tone threshold average (vertical columns). The Roman numeral designation is located at the point where the percentage of speech discrimination and pure tone average intersect. 38 C.F.R. § 4.85(b). The pure tone threshold average is the sum of the pure tone thresholds at 1000, 2000, 3000 and 4000 hertz, divided by 4. This average is used in all cases to determine the Roman numeral designation for hearing impairment. 38 C.F.R. § 4.85(d). Continued on next page Table VI Numeric designation of hearing impairment based on puretone threshold average and speech discrimination. % of discrim- ination Puretone Threshold Average 0-41 42-49 50-57 58-65 66-73 74-81 82-89 90-97 98+ 92-100 I I I II II II III III IV 84-90 II II II III III III IV IV IV 76-82 III III IV IV IV V V V V 68-74 IV IV V V VI VI VII VII VII 60-66 V V VI VI VII VII VIII VIII VIII 52-58 VI VI VII VII VIII VIII VIII VIII IX 44-50 VII VII VIII VIII VIII IX IX IX X 36-42 VIII VIII VIII IX IX IX X X X 0-34 IX X XI XI XI XI XI XI XI Alternatively, VA regulations provide that in cases of exceptional hearing loss, when the pure tone thresholds at each of the four specified frequencies (1000, 2000, 3000 and 4000 hertz) is 55 decibels 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. Each ear will be evaluated separately. 38 C.F.R. § 4.86(a). The provisions of 38 C.F.R. § 4.86(b) further provide that, when the pure tone threshold is 30 decibels or less at 1,000 Hertz, and 70 decibels or more at 2,000 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 will be evaluated separately. Table VIA Numeric designation of hearing impairment based only on pure tone threshold average: 0-41 42-48 49-55 56-62 63-69 70-76 77-83 84-90 91-97 98-104 105+ I II III IV V VI VII VIII IX X XI The findings for each ear from either Table VI or Table VIA, are then applied to Table VII (Percentage Evaluations for Hearing Impairment) to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment of each ear. The horizontal rows represent the ear having the better hearing and the vertical columns the ear having the poor hearing. The percentage evaluation is located at the point where the rows and column intersect. 38 C.F.R. § 4.85(e). Table VII Percentage evaluation for hearing impairment (diagnostic code 6100) Poorer Ear XI 100* X 90 80 IX 80 70 60 VIII 70 60 50 50 VII 60 60 50 40 40 VI 50 50 40 40 30 30 V 40 40 40 30 30 20 20 IV 30 30 30 20 20 20 10 10 III 20 20 20 20 20 10 10 10 0 II 10 10 10 10 10 10 10 0 0 0 I 10 10 0 0 0 0 0 0 0 0 0 XI X IX VIII VII VI V IV III II I Analysis A July 2014 private audiogram, authorized by VA, indicates the following puretone thresholds, in decibels: HERTZ 1000 2000 3000 4000 Average RIGHT EAR 50 65 65 70 63 LEFT EAR 40 60 60 65 56 “Discrimination scores” were noted to be 84 percent in the right ear and 76 percent in the left ear; however, a NU-6 test speech discrimination test was done, and not the Maryland CNC test that is required for rating purposes. 38 C.F.R. § 4.85(a). The Veteran was issued hearing aids in August 2014. The Board acknowledges the assertion in the June 2019 Board hearing that when the audiogram data was transcribed in November 2014, the audiologist changed the discrimination scores to be 88 percent bilaterally. However, as noted, a Maryland CNC test was not conducted, and as such, the examination is incomplete and/or inadequate for VA purposes. 38 C.F.R. § 4.85(a). In December 2018, the Veteran reported in a VA appointment that his hearing aids were not working. An audiogram showed the following puretone thresholds, in decibels: HERTZ 1000 2000 3000 4000 Average RIGHT EAR 45 55 55 70 56 LEFT EAR 45 55 55 65 55 A Maryland CNC test was not done. The treating audiologist indicated that the Veteran’s hearing had not changed significantly since his last evaluation. New hearing aids were ordered. In April 2019, the Veteran reported that the new hearing aids did not fit him well. His puretone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT EAR 50 60 60 70 60 LEFT EAR 45 55 55 70 56 A Maryland CNC test was not done. New hearing aids were ordered. In the June 2019 Board hearing, the Veteran testified that his hearing had worsened. He had to ask people several times to speak up or repeat themselves. His spouse testified that she had to repeat herself many times and found it frustrating. The Veteran had another VA hearing loss examination in January 2020. His puretone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT EAR 50 55 65 60 58 LEFT EAR 50 55 60 65 56 Speech recognition scores were 84 percent in the right ear and 84 percent in the left ear, and the examiner indicated that the puretone thresholds were valid for rating purposes and that use of word recognition scores was appropriate. Applying these results to Table VI results in a designation of Level III for the right ear and Level II for the left ear. In sum, for the entire period of appeal, results of the VA examination and VA treatment records translate to, at worst, Level III hearing loss in the right ear and Level II hearing loss in the left ear when applied to Table VI of the rating schedule (pure tone threshold average and speech discrimination). This level of hearing loss warrants a noncompensable (zero percent) rating under Table VII of the rating schedule. Therefore, a compensable schedular rating is not warranted under Diagnostic Code 6100 at any point during the period of appeal. See 38 C.F.R. § 4.85, Diagnostic Code 6100. H. SEESEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Nelson 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.