Citation Nr: 21028633 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 14-30 893 DATE: May 11, 2021 ORDER Entitlement to a compensable initial rating for right ear hearing loss prior to March 1, 2019, is denied. Entitlement to a compensable rating for bilateral hearing loss on and after March 1, 2019, is denied. INTRODUCTION The Veteran served on active duty from June 1970 to January 1972. These matters come before the Board of Veterans' Appeals (Board) on appeal from a May 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In June 2017, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of this hearing has been associated with the claims file. This appeal was remanded in February 2018 for additional development. After the issuance of a July 2019 supplemental statement of the case, the appeal was remitted to the Board further appellate review. While in remand status, the RO issued a July 2019 rating decision granting service connection for the Veteran's left ear hearing loss. The RO then combined the Veteran's right and left ear hearing loss into a single, noncompensable rating, effective March 1, 2019. Although the Veteran did not specifically appeal the rating assigned to his now service-connected left ear hearing loss, it has been combined with his right ear hearing loss, which is properly before the Board. As such, the Board will evaluate whether the Veteran is entitled to a compensable rating for bilateral hearing loss on and after March 1, 2019. FINDINGS OF FACT 1. Prior to March 1, 2019, he Veteran's right ear hearing loss is manifested by audiometric test results corresponding to numeric designations of Level I. 2. On and after March 1, 2019, the Veteran's bilateral ear hearing loss is manifested by audiometric test results corresponding to numeric designations of Level I. CONCLUSIONS OF LAW 1. The criteria for a compensable rating prior to March 1, 2019, for right ear hearing loss have not been satisfied. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100. 2. The criteria for a compensable rating on and after March 1, 2019, for bilateral hearing loss have not been satisfied. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In the February 2018 remand, the Board directed the RO to request that the Veteran submit or identify evidence associated with alleged August 2017 audiological testing. Further, the Board directed the RO to provide the Veteran to ascertain the severity of the Veteran's hearing loss. In June 2018, the RO sent the requested letter to the Veteran. To date, the Veteran has neither submitted nor identified audiological testing that has not already been associated with the claims file. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (noting that "[t]he duty to assist is not always a one-way street"); Turk v. Peake, 21 Vet. App. 565, 568 (2008). Further, in March 2019, the Veteran underwent the requested VA examination. Based on the above and a review of the record, the Board finds that the RO substantially complied with the February 2018 remand directive and, thus, a remand for corrective action is not warranted. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Consequently, the Board will address the merits of the Veteran's claims herein. Prior to March 1, 2019, the Veteran's right ear hearing loss has been assigned a noncompensable rating. On and after March 1, 2019, the Veteran's bilateral hearing has been as noncompensable rating. The Veteran is seeking compensable ratings for both periods. The severity of hearing loss is determined by comparing audiometric test results with the specific criteria. 38 C.F.R. § 4.85, Diagnostic Codes 6100 through 6110. Evaluations of 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 puretone audiometry tests in the frequencies 1000, 2000, 3000, and 4000 Hertz. The Rating Schedule allows for such audiometric test results to be translated into a numeric designation ranging from Level I to Level XI, in order to evaluate the degree of disability from service-connected defective hearing. The evaluations derived from the Rating Schedule are intended to make proper allowance for improvement by hearing aids. During the pendency of this appeal, the Veteran underwent VA audiological examinations in April 2012, June 2012, and March 2019. The April and June 2012 VA examinations determined that the Veteran's right ear puretone threshold average was 23.75 decibels. Speech recognition testing using the Maryland CNC wordlist resulted in a score of 96 percent for the Veteran's right ear. The March 2019 VA examination determined that the Veteran's right ear puretone threshold average was 31.25 decibels and his left ear puretone threshold was 28.75 decibels. Speech recognition testing using the Maryland CNC wordlist resulted in a score of 98 percent for the Veteran's right ear and 100 percent for left ear. Prior to March 1, 2019, applying the audiometric results to the Rating Schedule reveals a numeric designation of Level I for the Veteran's right ear. See 38 C.F.R. § 4.85, Table VI, Diagnostic Code 6100. Because service connection for the Veteran's left ear was not established during this period, the regulations require the assignment of a Level I designation. Id. at (f). Applying these numeric designations to Table VII results in a noncompensable rating. See 38 C.F.R. § 4.85, Table VII, Diagnostic Code 6100. On and after March 1, 2019, applying audiometric results to the Rating Schedule reveals a numeric designation of Level I, bilaterally. See 38 C.F.R. § 4.85, Table VI, Diagnostic Code 6100. Applying these numeric designations to Table VII also results in a noncompensable rating. See 38 C.F.R. § 4.85, Table VII, Diagnostic Code 6100. The rating criteria provide for rating exceptional patterns of hearing impairment under the provisions of 38 C.F.R. § 4.86. However, the Veteran's audiological test results throughout the pendency of this appeal failed to demonstrate puretone thresholds of 55 decibels or more in all four frequencies of 1000, 2000, 3000, and 4000 Hertz, in either ear. As such, a rating for an exceptional pattern of hearing impairment is not warranted at any point throughout the pendency of this appeal. 38 C.F.R. § 4.86(a). Additionally, with respect to an exceptional pattern of hearing loss, although the evidence of record demonstrates puretone thresholds of 30 decibels or fewer at 1000 Hertz, neither of the Veteran's ears demonstrated a puretone threshold of 70 decibels or greater at 2000 Hertz. Thus, additional consideration for an exceptional pattern of hearing impairment is not warranted. 38 C.F.R. § 4.86(b). Disability ratings for hearing impairment are 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). Thus, based on the audiometric findings of record, a compensable rating prior to March 1, 2019, for right ear hearing loss is not warranted, neither is a compensable rating on and after March 1, 2019, for bilateral hearing loss. T. REYNOLDS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Sean G. Pflugner, 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.