Citation Nr: 21025194 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 16-20 568 DATE: April 27, 2021 ORDER Entitlement to an initial compensable rating for bilateral hearing loss is denied. FINDING OF FACT The Veteran had, at worst, Level II hearing in the right ear and Level III hearing in the left ear. CONCLUSION OF LAW The criteria for an initial compensable evaluation for bilateral hearing loss have not been met. 38 U.S.C. §§ 1115, 5107; 38 C.F.R. §§ 4.7, 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from November 1967 to July 1970. This case comes before the Board of Veterans’ Affairs (Board) from an April 2015 rating decision by a Department of Veterans Affairs (VA) regional office (RO). The Veteran testified at a January 2019 Board hearing before the undersigned Veterans Law Judge. A transcript has been associated with the claims file. A June 2019 Board decision remanded the issue for further development. The issue has since returned to the Board for appellate review. Entitlement to a compensable rating for hearing loss is denied. The Veteran asserts that his bilateral hearing loss is more severe than currently evaluated. The Veteran’s bilateral hearing loss is rated as noncompensable. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4. The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the Veteran’s medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999). The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as staged ratings. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999). The Veteran’s hearing loss is rated under the criteria of 38 C.F.R. § 4.85, Diagnostic Code 6100. Evaluations of defective hearing range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of a controlled speech discrimination test (Maryland CNC) together with the average hearing threshold level measured by pure tone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hertz). To evaluate the degree of disability from service-connected defective hearing, the rating schedule establishes eleven 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, Via, and VII, Diagnostic Code 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). Hearing tests will be conducted without hearing aids, and the results of above-described testing are charted on Table VI and Table VII. See 38 C.F.R. § 4.85. Additionally, under 38 C.F.R. § 4.85(c), Table VIA will be used when the examiner certifies that use of speech discrimination is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc., or when indicated under the provisions of § 4.86. On an April 2008 VA treatment record, the Veteran reported a history of difficulty hearing when in a noisy environment. The medical provider observed the Veteran to have mild sensory hearing loss bilaterally with excellent speech discrimination ability bilaterally. However, no specific audiometric readings were provided by this medical provider. The Veteran was provided an initial VA audiological examination in May 2010. At that time, the VA examiner found pure tone thresholds, in decibels, as: HERTZ 1000 2000 3000 4000 Avg RIGHT 30 25 35 45 34 LEFT 25 20 20 30 23 The average thresholds were 34 decibels in the right ear and 23 in the left ear. Speech audiometry revealed speech recognition ability of 96 percent in the right ear and 96 percent in the left ear. The Veteran reported that he is unable to hear conversations in crowded places. The October 2010 private bilateral hearing examination found pure tone thresholds, in decibels, as: HERTZ 1000 2000 3000 4000 Avg RIGHT 35 30 45 55 41 LEFT 25 20 25 30 25 The average thresholds were 41 decibels in the right ear and 25 in the left ear. Speech audiometry revealed speech recognition ability of 84 percent in the right ear and 92 percent in the left ear. The May 2014 private bilateral hearing examination found pure tone thresholds, in decibels, as: HERTZ 1000 2000 3000 4000 Avg RIGHT 30 25 45 50 38 LEFT 20 15 30 40 26 The average thresholds were 38 decibels in the right ear and 26 in the left ear. Speech audiometry revealed speech recognition ability of 96 percent in the right ear and 96 percent in the left ear. In a September 2014 private treatment record, the medical provider observed the Veteran’s hearing to be 30 decibels in the right ear and 25 decibels in the left ear. The medical provider found the Veteran’s word recognition score to be 100 percent correct at 70 decibels in each ear. The April 2015 private bilateral hearing examination found pure tone thresholds, in decibels, as: HERTZ 1000 2000 3000 4000 Avg RIGHT 25 20 45 50 35 LEFT 25 20 40 45 32 The average thresholds were 35 decibels in the right ear and 32 in the left ear. Speech audiometry revealed speech recognition ability of 92 percent in the right ear and 92 percent in the left ear. The May 2018 private bilateral hearing examination found pure tone thresholds, in decibels, as: HERTZ 1000 2000 3000 4000 Avg RIGHT 25 25 45 55 38 LEFT 25 25 40 50 35 The average thresholds were 38 decibels in the right ear and 35 in the left ear. Speech audiometry revealed speech recognition ability of 96 percent in the right ear and 100 percent in the left ear. The provider stated the speech recognition test was administered using the NU-6 word list. The medical provider stated that the Veteran’s hearing loss is moderate and is worsening. At the July 2019 Board hearing, the Veteran testified that his medical provider has told him that his hearing loss was steadily worsening. Board Hearing Transcript (T.) at 4. The Veteran also stated that his hearing has worsened and that he has difficulty hearing his wife, particularly when in a noisy environment. T. at 5-6. Following the Veteran’s contention of worsening symptomatology at his July 2019 hearing, the Board remanded the claim for a new examination to determine the current severity of his hearing loss. The February 2020 VA bilateral hearing examination found pure tone thresholds, in decibels, as: HERTZ 1000 2000 3000 4000 Avg RIGHT 30 30 50 55 41 LEFT 35 30 40 50 39 The average thresholds were 41 decibels in the right ear and 39 in the left ear. Speech audiometry revealed speech recognition ability of 84 percent in the right ear and 80 percent in the left ear. The Veteran reported that the bilateral hearing loss did not impact ordinary conditions of daily life. With respect to the private audiological examinations, only the graphic representation of the audiogram was included in the record, with no numeric interpretation provided. However, as the audiometric results were conveyed in a straightforward graph, the Board finds that it, as the finder of fact, can interpret the chart to determine the numeric values of the puretone levels for adjudication purposes. See Kelly v. Brown, 7 Vet. App. 471 (1995) (holding that the Court could not interpret the results of an audiograph because interpretation requires a factual finding, which is not the role of the Court in the first instance, and further indicating that the Board was empowered to make such factual findings in the first instance). The Board further notes that the Veteran’s private audiological examinations are not clear as to whether Maryland CNC was administered. However, private treatment records from the same provider indicated that the NU-6 word list was used. The Board finds, however, as clarified below, that even if these speech discrimination tests utilized the Maryland CNC, the Veteran’s hearing would still be rated as noncompensable. The Board finds that a compensable evaluation is not warranted for bilateral hearing loss at any time during the appeal period. The June 2010 VA examination results in a Roman numeral designation Level of I for the right ear and Level I for the left ear. Taken together, that is a zero percent evaluation. See 38 C.F.R. § 4.85, Table VII. The October 2010 private audiometric findings result in a Roman numeral designation Level II for the right ear and Level I for the left ear. Taken together, that is a zero percent evaluation. The May 2014 private examination results in a Roman numeral designation Level I in the right ear and Level I in the left ear. Taken together, that is a zero percent evaluation. The April 2015 private examination results in a Roman numeral designation Level I in the right ear and Level I in the left ear. Taken together, that is a zero percent evaluation. The May 2018 private examination results in a Roman numeral designation Level I in the right ear and Level I in the left ear. Taken together, that is a zero percent evaluation. The February 2020 VA examination results in a Roman numeral designation Level II in the right ear and Level III in the left ear. Taken together, that is a zero percent evaluation. Based on the foregoing information, the Board quite simply cannot not find that, at any point in time during the appeal period, the Veteran’s bilateral hearing loss disability has warranted a compensable initial disability rating. Accordingly, the claim must be denied. The Board acknowledges its consideration of the lay evidence of record when adjudicating this claim, including the Veteran’s credible report of his trouble understanding and hearing speech, particularly that of his wife and when he is in a noisy environment. The Veteran is competent to report difficulty with his hearing; however, 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 rating criteria contemplate speech reception thresholds and ability to hear spoken words on Maryland CNC testing. The functional impact that the Veteran describes is contemplated by the rating criteria. Doucette v. Shulkin, 28 Vet. App. 366 (2017). The Veteran’s main complaint is reduced hearing acuity and clarity, which is what is contemplated in the rating assigned. See Rossy v. Shulkin, 29 Vet. App. 142, 145 (2017). Accordingly, the preponderance of the most probative evidence is against the claim of entitlement to a compensable rating for hearing loss. In reaching the conclusion above, the Board considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the Veteran’s claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Caroline B. Fleming Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Thompson, 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.