Citation Nr: 21022148 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 16-63 722 DATE: April 14, 2021 ORDER Entitlement to a rating in excess of 0 percent for bilateral hearing loss is denied. FINDING OF FACT The preponderance of the evidence is against finding that bilateral hearing loss is worse than Level II hearing acuity in the right ear and Level I in the left ear. CONCLUSION OF LAW The criteria for entitlement to an initial rating in excess of 0 percent for bilateral hearing loss are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.383, 3.385, 4.85, 4.86. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 2002 to September 2005. These matters come before the Board of Veterans’ Appeals (Board) on appeal from rating decisions issued in June 2015 and February 2016by the Regional Office (RO) of the Department of Veterans Affairs (VA) in Houston, Texas. In November 2019 the Veteran participated in a videoconference hearing before the undersigned Veterans Law Judge. A hearing transcript is of record. In March 2020, the Board remanded claims for service connection for right ear hearing loss, a gastrointestinal disability, and chronic fatigue syndrome; and a claim for increased rating for left ear hearing loss. An October 2020 rating decision established service connection for irritable bowel syndrome and right ear hearing loss, and assigned a 0 percent rating for the recharacterized bilateral hearing loss. Another October 2020 rating decision established service connection for chronic fatigue syndrome. Therefore, the claims for service connection for a gastrointestinal disability and chronic fatigue syndrome have been granted and are no longer on appeal. The claim for service connection for right ear hearing loss has been granted, and the remaining issue on appeal is the claim for increased rating for bilateral hearing loss. Entitlement to a rating in excess of 0 percent for bilateral hearing loss The Veteran contends that he is entitled to an increased rating for bilateral hearing loss because the claimed disability is worse than contemplated by the currently assigned rating. Under the applicable criteria, ratings for hearing loss are determined in accordance with the findings obtained on audiometric evaluations. Ratings for hearing impairment range from 0 percent to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests, together with the average hearing threshold level as measured by pure tone audiometry tests in the frequencies 1000, 2000, 3000, and 4000 Hertz. To rate the degree of disability from hearing impairment, the rating schedule establishes eleven auditory acuity levels designated from Level I for essentially normal acuity through Level XI for profound deafness. 38 C.F.R. § 4.85, Diagnostic Code 6100. Hearing tests will be conducted without hearing aids, and the results of above-described testing are charted on Table VI and Table VII. 38 C.F.R. § 4.85. An adequate evaluation of impairment of hearing acuity rests upon the results of controlled speech discrimination tests, together with tests of the average hearing threshold levels at certain specified frequencies. 38 C.F.R. § 4.85, Diagnostic Code 6100. The assignment of disability ratings for hearing impairment are to be derived by the mechanical application of the Ratings Schedule to the numeric designations assigned after audiometry evaluations are conducted. Lendenmann v. Principi, 3 Vet. App. 345 (1992). Numeric designations of Levels I through XI are assigned by application of Table VI, in which the percentage of discrimination is intersected with the pure tone decibel loss. 38 C.F.R. § 4.85, Table VI. The results are then applied to Table VII, for a percentage rating. Pure tone threshold average, as used in Tables VI and VIA, is the sum of the pure tone thresholds at 1000, 2000, 3000, and 4000 Hertz, divided by four. That average is used in all cases, including those in 38 C.F.R. § 4.86, to determine the Roman numeral designation for hearing impairment from Table VI or Table VIA. 38 C.F.R. § 4.85(d). Where pure tone thresholds are 55 decibels or more at each of the four specified frequencies of 1000, 2000, 3000, and 4000 Hertz, either Table VI or Table VIA is applied, and whichever results in the higher numeral shall be applied. 38 C.F.R. § 4.86(a). When the pure tone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz, the higher numeral of Table VI or Table VIA is also applied. That numeral will then be elevated to the next higher numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86(b). In addition to dictating objective test results, a VA audiologist should fully describe the functional effects caused by a hearing disability in the final report because of the potential application of 38 C.F.R. § 3.321(b) in considering whether referral for consideration of the assignment of an extraschedular rating is warranted. Unlike the rating schedule for hearing loss, 38 C.F.R. § 3.321(b) does not rely exclusively on objective test results to determine whether a referral for an extra-schedular rating is warranted. Martinak v. Nicholson, 21 Vet. App. 447 (2007). At a May 2015 VA audiology examination, the Veteran exhibited audiometric findings of: HERTZ AVG 1000 2000 3000 4000 RIGHT 17.5 15 15 15 25 LEFT 23.75 10 15 45 25 Speech audiometry testing using a Maryland CNC word list found speech recognition ability of 96 percent in the right ear, and 96 percent in the left ear. Applying the method for rating hearing loss to the results of the audiology evaluation, the May 2015 audiometric evaluation found Level I hearing acuity in the right ear and Level I in the left ear using Table VI. Application of those findings to Table VII corresponds to a 0 percent rating under Diagnostic Code 6100. 38 C.F.R. § 4.85. An exceptional pattern of hearing loss was not shown for either ear. The examiner specifically set forth the functional effects of the hearing disability. The Veteran reported that he sometimes cannot hear well. The Board notes that the Veteran has submitted a January 2020 private audiogram. Unfortunately, the audiogram did not include the results of a Maryland CNC test, and is not valid for rating purposes. The claim was remanded for a VA audiology examination responsive to the appropriate rating criteria. At an October 2020 VA audiology examination, the Veteran exhibited audiometric findings of: HERTZ AVG 1000 2000 3000 4000 RIGHT 36.25 30 30 40 45 LEFT 36.25 30 30 45 40 Speech audiometry testing using a Maryland CNC word list found speech recognition ability of 90 percent in the right ear, and 92 percent in the left ear. Applying the method for evaluating hearing loss to the results of the Veteran’s audiology evaluation, the October 2020 audiometric evaluation found Level II hearing acuity in the right ear and Level I in the left ear using Table VI. Application of those findings to Table VII corresponds to a 0 percent rating under Diagnostic Code 6100. 38 C.F.R. § 4.85. An exceptional pattern of hearing loss was not shown for either ear. The VA examiner specifically set forth the functional effects of the Veteran’s hearing disability. The Veteran reported that that he needed to ask people to repeat or he needed to ask them to clarify what was being said to him. The Veteran stated that he needed to have the volume on the television high and that he had difficulty hearing people speaking on the phone. The medical evidence of record shows that the Veteran’s audiometric findings have consistently corresponded to a 0 percent rating throughout the duration of this appeal. A Veteran is competent to describe symptoms of which he has first-hand knowledge. Charles v. Principi, 16 Vet. App. 370 (2002); Washington v. Nicholson, 19 Vet. App. 362 (2005). As the Board finds that hearing loss and its symptomatology are something that the Veteran, as a layperson, is competent to describe, his statements regarding the effects he has experienced due to hearing loss carry probative weight. Barr v. Nicholson, 21 Vet. App. 303 (2007); Falzone v. Brown, 8 Vet. App. 398 (1995). However, the Board is bound in its decisions regarding schedular ratings for hearing loss by the VA regulations for the rating of hearing loss. 38 U.S.C. § 7104(c). Rating hearing loss requires the use of the Maryland CNC speech discrimination test and the pure tone threshold average determined by an audiometry test. The Board does not discount the difficulties that the Veteran experiences as a result of service-connected bilateral ear hearing loss. However, disability ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned based on audiometric evaluations. The Board has no discretion in the matter and is bound by law to apply VA’s rating schedule based on the Veteran’s audiometry results. 38 U.S.C. § 1155; 38 C.F.R. § 4.1; Lendenmann v. Principi, 3 Vet. App. 345 (1992) The Veteran’s hearing loss symptoms and manifestations are fully contemplated by the rating criteria of Diagnostic Code 6100. In this case, the Veteran’s hearing loss symptoms and manifestations of difficulty having conversations and having to turn the television volume up are neither unusual nor exceptional. The schedular rating criteria specifically provide for ratings based on all levels of hearing loss and as measured by both audiometric testing and speech recognition testing. The rating criteria for hearing loss contemplate the functional effects of difficulty hearing and understanding speech. Doucette v. Shulkin, 28 Vet. App. 366 (2017). Accordingly, based on the audiology examinations, the Board concludes that the preponderance of the evidence is against entitlement to an initial rating in excess of 0 percent for bilateral hearing loss. The May 2015 and October 2020 VA audiometric examinations did not exhibit findings that warranted a rating greater than the currently assigned ratings and the Veteran has not alleged that his condition has worsened since this examination. There are not other audiometric tests and Maryland CNC speech recognition tests that are valid for rating purposes. The Board finds that the Veteran’s hearing loss is not shown to result in marked interference with employment or frequent hospitalization such that any higher ratings would be warranted on an extraschedular basis. 38 C.F.R. § 3.321(b)(1). Accordingly, the Board finds that the preponderance of the evidence is against the assignment of a higher rating for bilateral hearing loss. Therefore, the appeal must be denied. Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Cross, 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.