Citation Nr: 21023791 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 16-57 292 DATE: April 21, 2021 ORDER Entitlement to an initial compensable rating for bilateral hearing loss is denied. FINDING OF FACT The Veteran’s bilateral hearing loss has manifested in no worse than Level I hearing impairment in the right and left ear. 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. §§ 4.1-4.16, 4.85, 4.86, Diagnostic Code (DC) 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Army from July 1975 to July 1978. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In July 2020, the Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is of record. Entitlement to an initial compensable rating for bilateral hearing loss. The Veteran seeks a compensable rating for his bilateral hearing loss. For the reasons that follow, the Board finds that an increased rating is not warranted. Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Hearing loss ratings range from noncompensable to 100 percent based on organic impairment of hearing acuity, as measured by controlled speech discrimination tests in conjunction with average hearing thresholds determined by puretone audiometric testing at frequencies of 1000, 2000, 3000 and 4000 cycles per second. “Puretone threshold average” is the average of the puretone thresholds at 1000, 2000, 3000 and 4000 Hertz. This average is used in all cases (including those in §4.86) to determine the Roman numeral designation for hearing impairment from TABLE VI or VIA. 38 C.F.R. § 4.85, DC 6100. The rating schedule establishes eleven auditory acuity levels, designated from level I for essentially normal hearing acuity, through level XI for profound deafness. The horizontal rows in TABLE VI represent nine categories of the percentage of discrimination based on the controlled speech discrimination test. The vertical columns in TABLE VI represent nine categories of decibel loss based on the puretone audiometry test. The Roman numeral designation is located at the point where the percentage of speech discrimination and puretone threshold average intersect. Id. Under certain exceptional patterns of hearing impairment, auditory acuity levels may be calculated using either TABLE VI, as described above, or TABLE VIA, which derives a Roman numeral designation based solely on the puretone audiometry test. 38 C.F.R. § 4.86. The TABLE that produces the higher Roman numeral will be used. Id. These auditory acuity levels are entered into TABLE VII of the rating schedule to determine the percentage disability rating. 38 C.F.R. § 4.85. The Veteran initially underwent a VA fee-based audiological examination in April 2016. He reported that he had difficulty hearing women’s voices and needed to keep asking the person to repeat themselves. On examination, puretone thresholds (in decibels) and speech discrimination scores were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 30 30 55 65 45 LEFT 30 40 45 65 45 As shown in the table, objective testing produced a puretone average of 45 decibels in the right and left ear. Maryland CNC speech discrimination scores were recorded as 94 percent in the right ear and 98 percent in the left ear. Neither the right nor left ear results meet the criteria of § 4.86, and the examiner did not indicate that the speech discrimination test was not appropriate, see § 4.85(c); therefore, application of TABLE VIA is not warranted. Applying the results to TABLE VI yields a numeric designation of Level I hearing impairment for both ears. Entering Level I hearing impairment for the right and left ear into TABLE VII yields a noncompensable rating. 38 C.F.R. § 4.85, DC 6100. In his November 2016 substantive appeal, the Veteran contended that the April 2016 VA fee-based exam was inadequate and did not provide the proper test. In June 2016, the Veteran submitted private audiological evaluations from Costco that were conducted in November 2015 and June 2016. However, the Board cannot consider the results of these evaluations. In order for an audiological evaluation to be adequate for rating purposes, it must be conducted by a state-licensed audiologist and must include a Maryland CNC controlled speech discrimination test. 38 C.F.R. § 4.85(a). The evidence of record shows that these evaluations were conducted by an audio instrument specialist, not a state-licensed audiologist. See September 2020 correspondence. At the July 2020 Board hearing, the Veteran explained that he believed the April 2016 examination was inadequate because the examiner told him that he had water in his ears and therefore he was unable to find any conclusive evidence of hearing loss. He also testified that the private Costco evaluator told him that he had moderate to severe hearing loss. He also noted that there were times when someone would speak to him and he could not understand what they were saying and would have to ask them to speak louder. In light of the Veteran’s testimony, the Board remanded the claim in August 2020 in order to obtain a new VA examination. The Veteran underwent another VA fee-based examination in December 2020 at Rocky Mount Hearing and Balance. At the examination, the Veteran reported that he cannot hear whispers and tells his family members to speak loudly, especially in church. He also indicated that he was unable to understand people when they wear a mask. His family and wife complain that he does not hear them. On examination, puretone thresholds (in decibels) and speech discrimination scores were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 30 40 65 75 52.5 LEFT 30 35 50 70 46.25 As shown in the table, objective testing produced a puretone average of 52.5 decibels in the right ear and 46.25 decibels in the left ear. Maryland CNC speech discrimination scores were recorded as 96 percent in the right ear and 92 percent in the left ear. Neither the right nor left ear results meet the criteria of § 4.86, and the examiner did not indicate that the speech discrimination test was not appropriate, see § 4.85(c); therefore, application of TABLE VIA is not warranted. Applying the results to TABLE VI yields a numeric designation of Level I hearing impairment for both ears. Entering Level I hearing impairment for the right and left ear into TABLE VII yields a noncompensable rating. 38 C.F.R. § 4.85, DC 6100. Based on the qualifying audiological evaluations of record, the Veteran’s bilateral hearing loss does not approximate the criteria more nearly corresponding to a compensable rating. The Board does not discount the Veteran’s assertion regarding his hearing impairment; however, schedular disability ratings for hearing loss are based on the results of the objective audiological studies of record. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Moreover, the rating criteria for hearing loss contemplate the functional effects of decreased hearing and difficulty understanding speech in an everyday work environment as these are the effects that VA’s audiometric tests are designed to measure. Doucette v. Shulkin, 28 Vet. App. 366, 369 (2017). The Veteran’s hearing loss does not produce any other functional effects not contemplated by the rating schedule. Id. Accordingly, a compensable rating for bilateral hearing loss is not warranted. In coming to this conclusion, the Board acknowledges the Veteran’s contention that the April 2016 VA examination is not adequate because he had water in his ears. However, a review of the examination report does not show any notation of water in the ears, and the examiner indicated that the results obtained were adequate for rating purposes. Nonetheless, even without considering the results of the April 2016 examination, a compensable rating is not warranted as the December 2020 VA fee-based examination only shows Level I hearing impairment in both the left and right ears. The Board also acknowledges the Veteran’s contention that the November 2015 and June 2016 private evaluator told him that he had moderate to severe hearing impairment. However, as explained above, the evaluator was not a state-licensed audiologist, and while the Board is sympathetic to the Veteran’s assertions regarding his hearing impairment, the objective evidence of record does not meet the criteria for a compensable rating. Furthermore, the Board also notes that at the July 2020 hearing, the Veteran reported symptoms related to his tinnitus. However, tinnitus is a separately service-connected condition, and the Board will not consider symptoms of the Veteran’s tinnitus in rating the Veteran’s bilateral hearing loss. The Board notes that service connection for tinnitus, rated at 10 percent, the maximum rating allowable, is in effect In sum, the Board finds that the Veteran’s bilateral hearing loss has not more nearly approximated a compensable rating at any point during the appeal period. Accordingly, the claim for an increased rating is denied. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette, 28 Vet. at 371-72. C. CRAWFORD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Mortimer, 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.