Citation Nr: 21023000 Decision Date: 04/19/21 Archive Date: 04/19/21 DOCKET NO. 10-45 328 DATE: April 19, 2021 ORDER Entitlement to a compensable rating for left ear hearing loss is denied. FINDING OF FACT The Veteran’s hearing loss was manifested by no worse than level I hearing in the right ear and level V hearing in the left ear. CONCLUSION OF LAW The criteria for a compensable rating for left ear hearing loss have not been met.  38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code (DC) 6100.  REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1975 to September 1978 and from November 1980 to November 1997. The appeal originated from the January 2010 rating decision which denied a compensable rating for the Veteran’s service-connected left ear hearing loss with history of otitis media and otitis externa and a compensable rating for right ear otitis media and otitis externa. The Veteran appealed the claims to the Board of Veterans’ Appeals (Board). In a February 2017 decision, the Board denied compensable ratings for his service-connected left ear hearing loss and right ear otitis media and otitis externa. The Veteran appealed the Board decision to the United States Court of Appeals for Veterans Claims (Court). Pursuant to a January 2018 Order granting a Joint Motion for Partial Remand (JMPR), the Court vacated the Board’s decision regarding his service-connected left ear hearing loss and service-connected right ear otitis media and otitis externa and remanded the claims to the Board for action consistent with the terms of the JMPR. See January 2018 JMPR. In the JMPR, the parties agreed that the Board erred in relying on the October 2009 VA medical opinion in addressing whether the Veteran’s balance disturbance and dizziness were related to his service-connected left ear hearing loss. The Board remanded the claims in May 2019 for additional development in order to comply with the January 2018 JMR. See May 2019 Board Decision. The Board also remanded the Veteran’s claim for a compensable rating for his service-connected left ear hearing loss in September 2019. See September 2019 Board Decision. In the July 2019 Rating Decision, the Regional Office granted a 10 percent rating for right ear otitis media and otitis externa and granted service connection for peripheral vestibular disorder with Eustachian dysfunction. See July 2019 Rating Decision. In its September 2019 decision, the Board acknowledged that the Veteran’s appeal for right ear otitis media and otitis externa was no longer before the Board because the Veteran’s claim had been granted in full in the July 2019 Rating Decision. See September 2019 Board Decision. As such, the claim for a compensable rating for left ear hearing loss is the only remaining issue on appeal. The claim was most recently remanded for additional development in September 2020. See September 2020 Board Decision. The Board notes that the issue of entitlement to service connection for right ear hearing loss was raised by the evidence of record. Specifically, in a July 2020 letter, the Veteran indicated he had hearing loss in both ears and stated, “I also find it interesting that the V.A. has found no hearing loss in my right ear.” See July 2020 Correspondence. The medical evidence also reflects that the Veteran has bilateral hearing loss. See i.e., August 2015 Riverside Ear, Nose, and Throat Physicians Record (diagnosing sensorineural hearing loss of both ears). However, this issue has not been developed for appellate consideration. As such, it is referred to the Agency of Original Jurisdiction (AOJ) for appropriate action. 1. Increased Rating The Veteran seeks a compensable rating for his service-connected left ear hearing loss. See January 2010 Notice of Disagreement (NOD). Legal Criteria Disability ratings are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule).  38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10.  If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned.  38 C.F.R. § 4.7.  The Veteran’s entire history is to be considered when making disability evaluations.  See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995).  “Staged” ratings may are appropriate for any rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings.  See Hart v. Mansfield, 21 Vet. App. 505 (2007).  Evaluations of bilateral defective hearing range from noncompensable 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 measured by puretone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hertz).  To evaluate the degree of disability for bilateral service-connected defective hearing, 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, DC 6100. 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 evaluations derived from the schedule are intended to make allowance for improvement by hearing aids.  38 C.F.R. § 4.85, DC 6100.  Exceptional patterns of hearing impairment are to be evaluated in accordance with the provisions of 38 C.F.R. § 4.86.  That regulation states: (a) When the puretone threshold 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.  (b) When the puretone 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.  That numeral will then be elevated to the next higher Roman numeral. Each ear will be evaluated separately.  An examination for hearing impairment for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a puretone audiometry test.  38 C.F.R. § 4.85(a). In this case, the Board notes that the Veteran is service connected only for left ear hearing loss. If impaired hearing is service-connected in only one ear, in order to determine the percentage evaluation from Table VII, the nonservice-connected ear will be assigned a Roman numeral designation of I for hearing impairment. 38 C.F.R. § 4.85(f). However, under the VA provisions governing paired organs, where there is service-connected hearing impairment in one ear compensable to a degree of 10 percent or more and hearing impairment in the other ear as the result of a nonservice-connected disability, which is not the result of the Veteran’s own willful misconduct and which meets the criteria for a disability under 38 C.F.R. § 3.385, the rate of compensation shall be paid as if the bilateral hearing loss were the result of the service-connected disability. 38 U.S.C. § 1160 (a)(3); 38 C.F.R. § 3.383 (a)(3); VAOPGCPREC 32-97, 62 Fed. Reg. 63605 (1997). For the purpose of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Accordingly, if VA determines that a compensable rating is warranted for the Veteran’s left ear hearing loss and he has hearing loss in the right ear per 38 C.F.R. § 3.385, he may be compensated as if his hearing loss in both ears were service connected. Relevant Facts and Analysis The Veteran filed an increased rating claim for his service-connected left ear hearing loss in August 2009. See August 2009 VA Form 21-4138, Statement in Support of Claim. As such, the relevant period on appeal is from August 24, 2009. The Veteran was afforded three VA audiological examinations in October 2009, May 2019, and January 2021.  During the October 2009 VA audiological evaluation, indicated pure tone air conduction thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 20 15 25 35 LEFT 30 25 20 20 50 See October 2009 VA Examination Report. Although air and bone conduction results were reported, the examiner indicated that the “air conduction study is better than a bone conduction study to reflect the claimant’s hearing loss.” Id. The puretone threshold average was 23.75 decibels in the right ear and 28.75 decibels in the left ear.  Speech audiometry revealed speech recognition ability of 80 percent in the right ear and of 64 in the left ear. Applying Table VI of the rating schedule, the results of October 2009 audiogram revealed that the Veteran had Level I hearing in the right ear and Level V hearing in the left ear.  Based on Table VII, these results correspond to a noncompensable rating.  See 38 C.F.R. § 4.85.  The Veteran’s private treatment records from August 2015 reflect he was treated for complaint of an earache in August 2015. See August 2015 Riverside Ear, Nose & Throat Physicians Treatment Record. He reported his hearing was stable and no audiogram testing was conducted. The Veteran was provided a second VA audiological examination in May 2019. The air conduction testing revealed pure tone thresholds, in decibels, as follows:  HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 10 30 30 LEFT 10 10 20 15 80 See May 2019 VA Hearing Loss and Tinnitus Disability Benefits Questionnaire (DBQ). The puretone threshold average was 21.25 decibels in the right ear and 31.25 decibels in the left ear.  Speech audiometry revealed speech recognition ability of 94 percent in the right ear and of 94 in the left ear. Applying Table VI of the rating schedule, the results of May 2019 audiogram revealed that the Veteran had Level I hearing in the right ear and Level I hearing in the left ear.  Based on Table VII, these results correspond to a noncompensable rating. See 38 C.F.R. § 4.85. The Veteran underwent a third VA examination in January 2021 pursuant to the September 2020 Board remand. The Air conduction audiogram revealed, pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 20 10 25 25 LEFT 20 20 15 20 70 See January 2021 VA Hearing Loss and Tinnitus DBQ. The puretone threshold average was 20 decibels in the right ear and 31.25 decibels in the left ear.  Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 96 in the left ear. Applying Table VI of the rating schedule, the results of January 2021 audiogram revealed that the Veteran had Level I hearing in the right ear and Level I hearing in the left ear.  Based on Table VII, these results correspond to a noncompensable rating.  See 38 C.F.R. § 4.85. The Veteran has undergone multiple audiological evaluations for his service-connected left ear hearing loss. The record contains hearing conservation audiograms dated July 2010 and August 2011. See July 2010 and August 2011 McDonald Army Health Center Hearing Conservation Data. The Veteran’s private treatment records also reflect two audiological evaluations from August 2015 and May 2018. See August 2015 Riverside Ear, Nose, and Throat Physicians Audiogram; May 2018 Riverside Ear, Nose, and Throat Physicians Audiogram. However, because these examinations did not confirm that Maryland CNC word list was used to obtain speech discrimination scores as required under 38 C.F.R. § 4.85(a), the aforementioned audiological examination results are not valid for rating purposes. Upon review, the audiological examinations of record indicate findings corresponding to no higher than a noncompensable rating.  There is no additional competent evidence in the record that would suggest that the Veteran’s hearing loss is severe enough to warrant a higher rating.   The Board has no reason to doubt the validity of the VA audiometric testing in this case.  In consideration of the above, the Board finds that a compensable rating is not warranted for the Veteran’s service-connected left ear hearing loss disability. As such, VA regulations regarding paired organs do not apply. 38 C.F.R. § 3.383(a)(3). Moreover, none of the VA examinations demonstrate an exceptional pattern of hearing impairment, as the Veteran did not have pure tone thresholds of 55 decibels or more at each of the frequencies of 1000, 2000, 3000, and 4000 Hertz, or a pure tone threshold of 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz.  38 C.F.R. § 4.86(a), (b).  Additionally, there is no examiner certification that the use of speech discrimination testing was not appropriate due to factors such as language difficulties, inconsistent scores, etc.  As such, there is no basis to alternatively rate this claim under Table VIA.  See 38 C.F.R. § 4.85(c).  The Veteran’s subjective reports of hearing impairment have been considered.  See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994).  However, a review of his lay statements gives no indication of specific symptoms or a particular degree of impairment that would justify a compensable rating.  Notably, the Veteran’s symptoms of dizziness and disturbance of balance have been compensated by his now service-connected peripheral vestibular disorder with Eustachian dysfunction. Moreover, the Board is bound to apply the VA rating schedule, where the assignment of disability ratings for hearing impairment is derived from a mechanical formula.  Thus, while laypersons are competent to report general symptoms such as hearing loss, the specific audiological findings from the audiological examinations from October 2009, May 2019, and January 2021 are more probative of the severity of the Veteran’s hearing loss disability for VA purposes, where it relies upon specific medical testing.   See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (2007).  In sum, the application of the rating schedule to the numeric designations assigned based on the VA audiological examination reports demonstrate that the appropriate rating for the Veteran’s left hearing loss disability is noncompensable, throughout the appeal period.  The Board is grateful to the Veteran for his service, and regrets that it cannot render a favorable decision in this matter. The Veteran has not met the criteria for a compensable rating during any discrete period involved in this appeal.  Therefore, as the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply and the claim for a compensable rating must be denied. Gilbert v. Derwinski, 1 Vet. App. 49; 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Lilly, Associate Attorney 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.