Citation Nr: 21024466 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 17-44 809 DATE: April 22, 2021 ORDER Entitlement to an initial compensable disability rating for bilateral hearing loss is denied. FINDING OF FACT Throughout the appeal period, the Veteran’s bilateral hearing loss has been manifested by, at worst, Level III hearing acuity in both the right and left ears. CONCLUSION OF LAW The criteria for entitlement to an initial compensable disability rating for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.3, 4.7, 4.85, 4.86, Diagnostic Code (DC) 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably on active duty from August 1970 to August 1974. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2016 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran testified before the undersigned Veterans Law Judge in a February 2020 Travel Board hearing. A transcript of this hearing has been associated with the record. The Board notes that this matter was previously before the Board in July 2020, at which time the claim was remanded for further development. In consideration of the appeal, the Board is satisfied there was substantial compliance with the July 2020 remand directives and will proceed with review. See Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to an initial compensable disability rating for bilateral hearing loss is denied. The Veteran contends that he should be awarded an initial compensable rating for his service-connected bilateral hearing loss from February 23, 2014, the effective date for the grant of service connection. Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 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 civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Ratings of hearing loss range from non-compensable to 100 percent based on organic impairment of hearing acuity as measured by the results of speech discrimination tests combined with the average hearing threshold levels as measured by pure tone audiometry tests in the frequencies 1000, 2000, 3000, and 4000 cycles per second. To rate the degree of disability for service-connected hearing loss, the Rating Schedule has established 11 auditory acuity levels, designated from Level I, for essentially normal acuity, through Level XI, for profound deafness. 38 C.F.R. § 4.85(h), Table VI. In order to establish entitlement to a rating for hearing loss, it must be shown that certain minimum levels of the combination of the percentage of speech discrimination loss and average pure tone decibel loss are met. The assignment of disability ratings for hearing impairment is derived by a mechanical application of the Rating Schedule to the numeric designations assigned after audiometric evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). The criteria for rating hearing impairment use controlled speech discrimination tests (Maryland CNC) together with the results of pure tone audiometry tests. These results are then charted on Table VI, Table VIA in exceptional cases as described in 38 C.F.R. § 4.86, and Table VII, as set out in the Rating Schedule. 38 C.F.R. § 4.85. An exceptional pattern of hearing loss occurs when the pure tone threshold at 1000, 2000, 3000, and 4000 Hertz is 55 decibels or more, or when the pure tone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz. 38 C.F.R. § 4.86. Applying the rating criteria to the facts of this case, the Board finds that the criteria for an initial compensable rating have not been met. The evidence establishes that throughout the appeal period, the Veteran’s service-connected bilateral hearing loss was manifested by Level III hearing acuity in both the right and left ears, at its worst. First, the Board notes that the Veterans submitted a private audiological evaluation in August 2017 in conjunction with his appeal. However, the August 2017 private audiological evaluation is not sufficient for VA rating purposes. Pursuant to 38 C.F.R. § 4.85(a), 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 pure tone audiometry test. The August 2017 private audiological evaluation contains a speech discrimination section but does not specify which word lists have been used during the evaluation. As stated above, VA regulations require that the use of a Maryland CNC word list for speech discrimination testing. Therefore, the results of the August 2017 private audiological evaluation cannot be used for VA rating purposes. Turning to the other evidence of record, the Veteran was first afforded a VA examination April 2016. The Veteran’s pure tone thresholds for the right ear were 15, 20, 60, and 85 decibels at 1000, 2000, 3000, and 4000 Hertz, respectively. This averages to 45. Pure tone thresholds for the left ear were 10, 15, 55, and 75 decibels at 1000, 2000, 3000, and 4000 Hertz, respectively. This averages to 39. Speech discrimination scores, using the Maryland CNC word list, were 88 percent for the right ear and 92 percent for the left ear. These audiological findings show Level II hearing acuity in the right ear, as well as Level I hearing acuity in the left ear under Table VI. Applying the percentage ratings for hearing impairment found in Table VII, the April 2016 VA audiogram results correspond to a 0 percent, or non-compensable, disability rating. See 38 C.F.R. § 4.85. The Veteran was afforded a second VA examination June 2018. The Veteran’s pure tone thresholds during this examination for the right ear were 10, 25, 65, and 85 decibels at 1000, 2000, 3000, and 4000 Hertz, respectively. This averages to 46. Pure tone thresholds for the left ear were 10, 20, 40, and 75 decibels at 1000, 2000, 3000, and 4000 Hertz, respectively. This averages to 36. Speech discrimination scores, using the Maryland CNC word list, were 78 percent for the right ear and 80 percent for the left ear. These audiological findings show Level III hearing acuity in both the right and left ears under Table VI. Applying the percentage ratings for hearing impairment found in Table VII, the June 2018 VA audiogram results correspond to a 0 percent, or non-compensable, disability rating. See 38 C.F.R. § 4.85. Most recently, the Veteran was afforded a VA examination in September 2020, after he testified at the February 2020 Travel Board hearing that his bilateral hearing loss had worsened. During this examination, the Veteran’s pure tone thresholds for the right ear were 20, 25, 65, and 90 decibels at 1000, 2000, 3000, and 4000 Hertz, respectively. This averages to 50. Pure tone thresholds for the left ear were 20, 25, 50, and 80 decibels at 1000, 2000, 3000, and 4000 Hertz, respectively. This averages to 44. Speech discrimination scores, again using the Maryland CNC word list, were 84 percent for the right ear and 86 percent for the left ear. These audiological findings continue to show Level II hearing acuity in both the right and left ears under Table VI. Applying the percentage ratings for hearing impairment found in Table VII, the February 2020 VA audiogram results again correspond to a non-compensable disability rating. 38 C.F.R. § 4.85. The Board has considered the Veteran’s symptomology and functional impact. The Veteran’s complaints of increased hearing difficulty have been considered under the numerical criteria set forth in the rating schedule, which take into consideration such impacts. In short, the rating criteria reasonably describe the Veteran’s disability levels and symptomatology. The Board in no way discounts the difficulties that the Veteran experiences because of his hearing loss. However, it must be emphasized, as previously noted, that the disability ratings for hearing impairment are derived by a mechanical application of the rating schedule to numeric designation assigned after audiometry results are obtained. The hearing loss must become more severe before it is considered a compensable disability for VA purposes. The Board must base its determination on the results of the pertinent audiological evaluations of record. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). In other words, the Board is bound by law to apply VA’s rating schedule based on the Veteran’s audiometry results. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Under these circumstances, the Board finds that the record has presented no basis for the initial assignment of a compensable disability rating for the Veteran’s service-connected bilateral hearing loss. Accordingly, the claim is denied. Absent a relative balance of the evidence for and against the claim, the evidence is not in equipoise and the benefit-of-the-doubt doctrine does not apply. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Bethany L. Buck Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. M. Lowman, 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.