Citation Nr: 21016167 Decision Date: 03/22/21 Archive Date: 03/22/21 DOCKET NO. 16-15 419 DATE: March 22, 2021 ORDER Entitlement to a compensable disability rating for right ear hearing loss is denied. FINDING OF FACT During the appeal period, the Veteran’s right ear hearing loss has manifested in no worse than Level VII hearing acuity. CONCLUSION OF LAW The criteria for a compensable rating for service-connected right ear hearing loss have not been satisfied. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.85, Diagnostic Code 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1974 to January 1976. This matter comes before the Board of Veterans' Appeals (Board) from an August 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In his April 2016 Form 9, the Veteran requested a video conference hearing. He canceled this request in January 2019. As he has not requested to reschedule the hearing, the Board considers the hearing request withdrawn. This matter was previously remanded by the Board in December 2019 and is now returned for further adjudication. Ratings of defective hearing are based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination testing together with the average hearing threshold level as measured by pure tone audiometry tests in the frequencies 1000, 2000, 3000 and 4000 Hertz. 38 C.F.R. § 4.85. 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 and the pure tone threshold average. 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. Table VII, Percentage Evaluation for Hearing Impairment, is used to determine the rating 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 disability rating is located at the point where the rows and column intersect. 38 C.F.R. § 4.85(e). When the pure tone threshold at each of the four specified frequencies of 1000, 2000, 3000 and 4000 Hertz is 55 decibels or more, the Roman numeral designation for hearing impairment will be determined from either Table VI or Table VIA, whichever results in the higher numeral. When the pure tone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, the Roman numeral designation for hearing impairment will be determined 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. 38 C.F.R. § 4.86. Table VIA can also be used when the examiner certifies that use of the speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc. 38 C.F.R. § 4.85(c). If impaired hearing is service-connected in only one ear, as here, 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, subject to the provisions of 38 C.F.R. § 3.383. See 38 C.F.R. § 4.85(f). Under 38 C.F.R. § 3.383, compensation is payable for certain combinations of service-connected and nonservice-connected disabilities as if both disabilities were service-connected, provided the nonservice-connected disability is not the result of the veteran's own willful misconduct, including 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 § 3.385 (defining disability due to impaired hearing) in the other ear. 38 C.F.R. § 3.383(a)(3). The Veteran originally filed a claim for service connection for hearing loss in October 2010, which was denied in a March 2011 rating decision. The Veteran did not appeal this decision or submit new and material evidence within a year and the decision became final. He filed a claim to reopen in April 2014. Service connection for right ear hearing loss was granted in a July 2014 rating decision. In June 2015, he filed a new claim for an increased rating. This claim was denied in the August 2015 rating decision that the Veteran appealed to the Board. The appeal period for consideration by the Board in this decision is from June 27, 2015, the date VA received the claim for an increased rating plus the one-year look-back period. 38 C.F.R. 3.400 (o)(2); Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010). In July 2014, the Veteran underwent a VA examination. The pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 30 60 75 90 64 LEFT 25 60 65 75 56 Speech audiometry revealed speech recognition ability of 64 percent in the right ear and 60 percent in the left ear as measured by the Maryland CNC test. Applying these values to Table VI, his service-connected right ear is assigned a Level VI Roman numeral designation. Applying Table VII, Level VI hearing loss considered with Level I for the nonservice-connected left ear does not afford a compensable evaluation and, thus, compensation cannot be paid as though the left ear were also service-connected under 38 C.F.R. § 3.383. The Veteran underwent another VA examination in August 2015. The pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 30 65 85 85 66 LEFT 30 65 75 70 60 Speech audiometry revealed speech recognition ability of 64 percent in the right ear and 60 percent in the left ear as measured by the Maryland CNC test. Applying these values to Table VI, his service-connected right ear is assigned a Level VII Roman numeral designation. Applying Table VII, Level VII hearing loss considered with Level I for the nonservice-connected left ear does not afford a compensable evaluation and, thus, compensation cannot be paid as though the left ear were also service-connected under 38 C.F.R. § 3.383. In his August 2015 notice of disagreement, the Veteran indicated he could not hear at all without hearing aids in both ears. In his April 2016 Form 9, the Veteran stated he had to have his cell phone on the highest setting for ring tone volume and constantly had to ask people to repeat themselves. He indicated that in a crowd he could not hear one voice over another. He also stated that he was assigned hearing aids but could not wear them due to the extra noise the devices made. In December 2019, the Board remanded the claim for an updated VA examination and additional treatment records. In a February 2020 VA examination, the pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 20 65 75 90 63 LEFT 30 65 65 75 59 Speech audiometry revealed speech recognition ability of 76 percent in the right ear and 74 percent in the left ear as measured by the Maryland CNC test. Applying these values to Table VI, his service-connected right ear is assigned a Level IV Roman numeral designation. Applying Table VII, Level IV hearing loss considered with Level I for the nonservice-connected left ear does not afford a compensable evaluation and, thus, compensation cannot be paid as though the left ear were also service-connected under 38 C.F.R. § 3.383. During each examination, the Veteran was asked about the functional impact of his hearing loss. See Martinak v. Nicholson, 21 Vet. App. 447, 455-56 (2007). At the July 2014 examination, he stated that he had to ask his wife to repeat “over and over” and had to turn the TV up really loud. He indicated having to have people write things down for him because he misunderstood on account of his hearing. He stated he could not understand his grandson and had a really hard time understanding people on the phone, even when using speakerphone. At the August 2015 examination, he stated that he could not hear his grandkids and that if there were two people talking, he could not hear anything. At the February 2020 examination, he reported that when people walk away and talk to him, he answers with “off the wall things.” The Veteran also reported that he would get into arguments with his wife when she would have to repeat herself, and that he has a hard time determining where a sound is coming from. The Veteran’s treatment records reflect the continued use of hearing aids. The Board has considered the Veteran’s complaints regarding the functional impact of his hearing loss on his daily life, but the assignment of disability ratings for hearing impairment is derived from a mechanical formula based on levels of pure tone threshold average and speech discrimination. The Veteran's ability to hear sounds and voices is measured and rated by an audiometric test. The schedular rating criteria specifically provide for ratings based on all levels of hearing loss, including exceptional hearing patterns which were not demonstrated in this case, and as measured by both audiometric testing and speech recognition testing. See Doucette v. Shulkin, 28 Vet. App. 366 (2017), (holding "that the rating criteria for hearing loss contemplate the functional effects of difficulty hearing and understanding speech"). Therefore, the diagnostic criteria adequately describe the severity and symptomatology of the Veteran's bilateral hearing loss disability. While the Board acknowledges the Veteran’s use of hearing aids, VA audiological examinations are conducted without use of hearing aids (see 38 C.F.R. § 4.85), and the scores without the use of hearing aids represent a rating made on the worst possible objective measure of performance. The use of hearing aids would, if anything, only serve to provide better hearing than demonstrated on audiometric examination. See 52 Fed. Reg. 44117 (Nov. 18, 1987). Although the Board sympathizes with the Veteran's complaints regarding the functional impact of his hearing loss on his daily life, the assignment of disability ratings for hearing impairment is derived from a mechanical formula based on levels of pure tone threshold average and speech discrimination. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). The Board has no discretion in this matter and must predicate its determination on the basis of the results of the valid audiology studies of record. Based on the above, a compensable rating for right ear hearing loss must be denied. C.B. Iwanowski Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Jarman, 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.