Citation Nr: 21027877
Decision Date: 05/07/21	Archive Date: 05/07/21

DOCKET NO. 16-20 779
DATE: May 7, 2021

ORDER

An increased compensable rating from January 18, 2013 and continuing thereafter for right ear hearing loss is denied.

FINDING OF FACT

For the entirety of the rating period on appeal, the severity of the Veteran's right ear hearing loss, at worst, was manifested by no more than level VII hearing acuity in the right ear and level I hearing acuity in his non-service connected left ear.

CONCLUSION OF LAW

The criteria to establish a compensable rating for the entirety of the rating period on appeal for right ear hearing loss have not been met. 38 U.S.C. § 1155; 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 in the U.S. Army from December 1970 to December 1972.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2013 rating decision of the Columbia, South Carolina Regional Office (RO).

In August 2017, the Veteran was afforded a videoconference hearing before the undersigned Veterans Law Judge (VLJ). During the hearing, the VLJ engaged in a colloquy with the Veteran toward substantiation of the claim. Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010). A hearing transcript is in the record.

In August 2020, the Board remanded the appeal to the RO for additional action. There was substantial compliance with the Board's remand directives. Stegall v. West, 11 Vet. App. 268 (1998).

Increased Rating  Right Ear Hearing Loss

Under DC 6100, the assignment of disability ratings for service-connected 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). Evaluations for 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 as measured by pure tone audiometry tests in the frequencies 1,000, 2,000, 3,000 and 4,000 Hertz (Hz). The Rating Schedule establishes eleven auditory acuity levels designated from Level I to Level XI for profound deafness. 38 C.F.R. § 4.85.

In certain situations, the Rating Schedule provides for rating exceptional patterns of hearing impairment. 38 C.F.R. § 4.86. When the pure tone thresholds at the four specified frequencies of 1,000, 2,000, 3,000 and 4,000 Hertz are 55 decibels or more under 38 C.F.R. § 4.86(a), or when the pure tone thresholds are 30 decibels or less at 1,000 Hertz and 70 decibels or more at 2,000 Hertz under 38 C.F.R. § 4.86(b), the Roman numeral designation for hearing impairment will be determined from either Table VI or Table VIA, whichever results in the higher numeral. That numeral will then be elevated to the next highest Roman numeral under 38 C.F.R. § 4.86(b). Table VIA is used to determine a Roman numeral designation for hearing impairment based only on the pure tone threshold average and will be used when the examiner certifies that use of the speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination score, etc., or when indicated under the provisions of 38 C.F.R. § 4.86. Table VII is used to determine the rating assigned by combining the Roman numeral designations for hearing impairment of each ear. 38 C.F.R. § 4.85(e). Where impaired hearing is service-connected only in one ear, the non-service-connected ear will be assigned a Roman numeral designation of I. 38 C.F.R. § 4.85(f).

The Veteran's service-connected right ear hearing loss is rated noncompensable from November 22, 2010 and continuing thereafter. The appellate period is from January 18, 2013, the receipt date of the Veteran's increased rating claim. The Veteran is not service-connected for left ear hearing loss and therefore will be assigned a Roman numeral designation of I. 38 C.F.R. § 4.85(f).

In the October 2013 VA examination, pure-tone thresholds, in decibels, were reported as follows:

Hertz	1,000	2,000	3,000	4,000

Right Ear	65	65	60	60

The average pure-tone threshold at 1,000; 2,000; 3,000 and 4,000 was 62.5 (rounded to 63) for the right ear. Speech recognition ability was listed as 76 percent. 38 C.F.R. § 4.86(a) is applicable because the pure-tone thresholds at the four specified frequencies was 55 decibels or higher and therefore the Roman numeral designation for hearing impairment will be determined from either Table VI or Table VIA, whichever results in the higher numeral.

Applying the above results from the October 2013 VA examination to Table VI shows level IV acuity and Table VIA shows level V acuity. The highest numeral, level V acuity from Table VIA, will be elevated to the next highest Roman numeral of VI under 38 C.F.R. § 4.86(b). Applying these findings to Table VII results in a noncompensable rating for the Veteran's right ear hearing loss under DC 6100.

In the March 2016 VA examination, pure-tone thresholds, in decibels, were reported as follows:

Hertz	1,000	2,000	3,000	4,000

Right Ear	75	75	75	75

The average pure-tone at 1,000; 2,000; 3,000 and 4,000 was 75 for the right ear. Speech recognition ability was listed as 84 percent. 38 C.F.R. § 4.86(a) is applicable because the pure-tone thresholds at the four specified frequencies was 55 decibels or higher and therefore the Roman numeral designation for hearing impairment will be determined from either Table VI or Table VIA, whichever results in the higher numeral.

Applying the above results from the March 2016 VA examination to Table VI shows level III acuity and Table VIA shows level VI acuity. The highest numeral, level VI acuity from Table VIA, will be elevated to the next highest Roman numeral of VII under 38 C.F.R. § 4.86(b). Applying these findings to Table VII results in a noncompensable rating for the Veteran's right ear hearing loss under DC 6100.

In his August 2017 Board hearing, the Veteran testified to having been issued hearing aids approximately two years previously and that his right ear hearing loss had worsened since his then-most recent VA examination. However, the Veteran did not testify as to having competent evidence reflecting a compensable rating for his right ear hearing loss.

In the October 2019 VA examination, pure-tone thresholds, in decibels, were reported as follows:

Hertz	1,000	2,000	3,000	4,000

Right Ear	75	75	75	80

The average pure-tone threshold at 1,000; 2,000; 3,000 and 4,000 was 76.25 (rounded to 76) for the right ear. The examiner noted "CNE" (could not examine) as to a right ear speech discrimination score and therefore Table VIA will be used under 38 C.F.R. § 4.86(a). The pure-tone thresholds at the four specified frequencies was 55 decibels or higher and the Roman numeral designation for hearing impairment will be determined under Table VIA.

Applying the above results from the October 2019 VA examination to Table VIA shows level VI acuity and elevated to the next highest Roman numeral of VII under 38 C.F.R. § 4.86(b). Applying these findings to Table VII results in a noncompensable rating for the Veteran's right ear hearing loss under DC 6100.

In the October 2020 VA examination, pure-tone thresholds, in decibels, were reported as follows:

Hertz	1,000	2,000	3,000	4,000

Right Ear	65	65	65	70

The average pure-tone at 1,000; 2,000; 3,000 and 4,000 was 66.25 (rounded to 66) for the right ear. Speech recognition ability was listed as 78 percent. 38 C.F.R. § 4.86(a) is applicable because the pure-tone thresholds at the four specified frequencies was 55 decibels or higher and therefore the Roman numeral designation for hearing impairment will be determined from either Table VI or Table VIA, whichever results in the higher numeral.

Applying the above results from the October 2020 VA examination to Table VI shows level IV acuity and Table VIA shows level V acuity. The highest numeral, level V acuity from Table VIA, will be elevated to the next highest Roman numeral of VI under 38 C.F.R. § 4.86(b). Applying these findings to Table VII results in a noncompensable rating for the Veteran's right ear hearing loss under DC 6100.

The Veteran's VA treatment records reflect the Veteran having undergone maintenance as to his hearing aids but no competent evidence reflecting a compensable rating for his right ear hearing loss.

A preponderance of the evidence is against a finding of an compensable rating for the entirety of the rating period on appeal for right ear hearing loss under DC 6100. For the entirety of the rating period on appeal, the Veteran underwent four VA audiograms, and the severity of the Veteran's right ear hearing loss, at worst, was manifested by no more than level VII hearing acuity in the right ear and level I hearing acuity in his non-service connected left ear. Therefore, a compensable increased rating is not warranted and the claim is denied. 

 

Vito A. Clementi

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	B. Cohen, 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.