Citation Nr: 21028940 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 16-27 759 DATE: May 12, 2021 ORDER Entitlement to a compensable rating for bilateral hearing loss is denied. FINDING OF FACT Throughout the appeal period, acceptable audiometric testing of the Veteran's hearing revealed no hearing impairment to a level which would entitle him to a compensable VA disability rating. CONCLUSION OF LAW The criteria for a compensable disability rating for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.85, 4.86, Diagnostic Code (DC) 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the United States Army from February 1980 to February 1983. This matter returns to the Board of Veterans' Appeals (Board) from a September 2018 Board Remand that remanded the Veteran's appeal of an October 2015 rating decision. This rating decision was issued by the Department of Veterans Affairs (VA) Regional Office (RO), which is the agency of original jurisdiction (AOJ) and which granted the Veteran's claim for entitlement to service connection for hearing loss, but did not rate this disability at a compensable rating level. The Board previously remanded the matter primarily for clarification of information related to a December 2015 private audiogram given to the Veteran. The Board found this private audiogram to be "unclear" and "not suitable for rating purposes." 38 C.F.R. § 4.85(a); See Savage v. Shinseki, 24 Vet. App. 259, 270 (2011). The Board Remand asked clarification (a) if the person who conducted the audiogram is a state-licensed audiologist; (b) to specify the speech recognition scores for the Veteran's left and right ears; (c) to state whether the speech recognition scores reported were the results of the Maryland CNC controlled speech discrimination test; and (d) whether a puretone audiometry test was conducted. Id. The Board Remand also directed that the Veteran's VA treatment records beginning March 2016 be attached to his file, that the Veteran be asked to identify all non-VA medical care providers who treated him for hearing loss related issues and to take reasonable efforts to obtain those records, and to provide the Veteran with a new VA audiological evaluation. The Veteran was provided a new VA audiological evaluation in September 2020. After review of the record we find that there has been substantial compliance with the Board's remand instructions. Entitlement to a compensable rating for bilateral hearing loss The Veteran is seeking an increased initial compensation rating for his service connected hearing loss. Disability evaluations are determined by application of the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings 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 their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The evaluation for hearing loss is determined by a mechanical application of the rating criteria to certified test results under Diagnostic Code (DC) 6100. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Under DC 6100, ratings for hearing loss are determined in accordance with the findings obtained on authorized audiometric examinations. Evaluations of hearing impairment range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests (Maryland CNC), together with the average hearing threshold level as measured by puretone audiometry tests only in the frequencies 1000, 2000, 3000, and 4000 Hertz (cycles per second). 38 C.F.R. § 4.85(a). The use of the Maryland CNC and puretone audiometry test conducted by a qualified medical provider are required. Id. To evaluate the degree of disability from hearing impairment, the rating schedule establishes eleven auditory acuity levels designated from Level I for essentially normal acuity, through Level XI for profound deafness. 38 C.F.R. § 4.85, DC 6100. As set forth in VA regulations, Tables VI, VIA, and VII are used to calculate the rating to be assigned. See 38 C.F.R. § 4.85, DC 6100. If the use of speech discrimination test results is not available or appropriate, as permitted by regulation, then Table VIA is the appropriate source of the hearing impairment level designation, which is based solely on the puretone threshold average. 38 C.F.R. § 4.85(c). The puretone threshold average is the average of only the puretone thresholds at the 1000, 2000, 3000, and 4000 Hertz (Hz) frequencies. 38 C.F.R. § 4.85(d). Hearing tests will be conducted without hearing aids and the results of above-described testing are charted on Table VI (Table VIA when appropriate). The results for each ear are then charted on Table VII to determine the Percentage Evaluation of Hearing Impairment the disability rating. 38 C.F.R. § 4.85(e). On the post remand authorized VA audiological evaluation given to the Veteran in September 2020 his puretone thresholds, in decibels (dB), were as follows: HERTZ Avg. 500 1000 2000 3000 4000 1000 - 4000 RIGHT 20 dB 20 dB 30 dB 40 dB 45 dB 33.75 dB LEFT 25 dB 20 dB 35 dB 55 dB 55 dB 41.25 dB The puretone threshold average for the right ear was 33.75 dB and 41.25 dB for the left ear. Speech recognition audiometry testing, using the Maryland CNC test, revealed speech discrimination scores of 90 percent in the right ear and 76 percent in the left ear. Table VI is used. 38 C.F.R. § 4.85(b). SPEECH: Puretone Table Used: Hearing Impairment Md. CNC Avg. dB VI or VIA Level Designation RIGHT 90 % 33.75 VI II LEFT 76 % 41.25 dB VI III From this audiometric testing, the Veteran's bilateral hearing has been manifested by hearing impairment of no worse than Level II in the right ear and no worse than Level III in the left ear. From these test results, the Veteran's level of disability is determined, pursuant to 38 C.F.R. §§ 4.85 and 4.86, by application and cross-referencing the results on Table VII. As can be seen by the above, this is a purely mechanical application of the audiometric testing results. Application of the findings to Table VII result in a 0 percent (noncompensable) disability rating under 38 C.F.R. § 4.85, DC 6100. During this examination, the examiner inquired of the Veteran as to his functional loss related to his hearing disability to which the Veteran reported that he needs people to repeat themselves, has to increase volume to a much too high level to watch TV and/or talk on the phone; struggles to understand speech and receive pertinent conversational information when in noise rich environments such as: family gatherings, work meetings, restaurants. He also indicated impact on his daily life to include miscommunication with family and friends which leads to aggravation. Work activities are affected due to miscommunication with coworkers/acquaintances/passersby which leads to aggravation. On the VA audiological evaluation given to the Veteran in October 2015 his puretone thresholds, in decibels, were as follows: HERTZ Avg. 500 1000 2000 3000 4000 1000 - 4000 RIGHT 20 dB 25 dB 30 dB 35 dB 40 dB 32.5 dB LEFT 20 dB 25 dB 35 dB 45 dB 50 dB 38.75 dB The puretone threshold average for the right ear was 32.5 dB and 38.75dB for the left ear. Speech recognition audiometry testing, using the Maryland CNC test, revealed speech discrimination scores of 100 percent in both his right and left ears. Table VI is used. 38 C.F.R. § 4.85(b). SPEECH: Puretone Table Used: Hearing Impairment Md. CNC Avg. dB VI or VIA Level Designation RIGHT 100% 32.5 dB VI I LEFT 100% 38.75 dB VI I Application to Table VII results in a 0 percent disability rating. 38 C.F.R. § 4.85(e). The Veteran reported functional impact that he has to ask people to repeat things at work and he has difficulty hearing the radio and the TV unless it is louder. In neither of these audiological evaluations was the Veteran shown to have an exceptional pattern of hearing loss which requires puretone threshold results at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) to be 55 dB or more; or puretone threshold results of 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz. 38 C.F.R. § 4.86. The Veteran's VA treatment records indicate that he has undergone evaluations for receiving hearing aids, but they do not indicate that he ever underwent full audiological testing, including speech recognition testing, that would qualify as testing that could be considered for assigning a compensation rating during these evaluations. The Veteran also submitted records from Dr. D.N., which included a December 18, 2015 office visit summary which referenced hearing test results that showed "grossly normal hearing" in the right ear and "[n]ormal hearing through 2 kHz, sloping to a mild to moderate sensorineural hearing loss for the left ear." Audio testing result graphs were also provided, though they were not identified as to who performed the examination, or whether puretone threshold testing was used. Dr. D.N. also referenced that audiological assessment included speech testing results that "SRT and PTA are in good agreement bilaterally. Word recognition testing shows excellent discrimination bilaterally." No other information or testing results were provide and the speech testing was not noted to be the required Maryland CNC. These medical records are those which prompted the Board to determine that this audiological testing was inadequate for VA rating purposes and prompted the Board's Remand. 38 C.F.R. § 4.85(a); Savage, 24 Vet. App. at 270. In response to the Board's September 2018 remand instructions, the AOJ forwarded to the Veteran a subsequent development letter in August 2019 advising him of the request that he provide any additional hearing loss related private treatment records and the need to obtain clarifying information from Dr. D.N.'s office. Other than interactions related to Dr. D.N., no other information or documents were provided in response to this request. In August 2019 the AOJ attached to the Veteran's file his VA treatment records from March 2016 to May 2019. The Veteran was also provided the above referenced September 2020 VA audiological evaluation. There was considerable effort put in by the AOJ to obtain the requested clarifying information from Dr. D.N., including numerous letters and other communications with his office and the Veteran. Eventually, Dr. D.N.'s office did provide responsive documents. In a document received by VA on January 10, 2020, Dr. D.N.'s office advised that the Maryland CNC controlled speech discrimination test was used, however, they advised that the person who performed the test was not a state-licensed audiologist. They did not provide direct responses to the request for the speech recognition scores for each ear, or whether it was the puretone audiometry testing used, instead, the document indicated and referenced to the "copy attached." The attached "Audiology Workflow" screenshot document attached did not specifically state that puretone audiometry testing was used, though the screenshot tab was labeled "Pure Tone". That screenshot tab also did not specifically record that Maryland CNC testing was used, however, the "Word Recognition" section did list right ear test results of 100 percent and left ear test results also at 100 percent. That screenshot tab neither provided the date of the testing or the name of the tester. No additional responsive and clarifying information was provided. However, prior to that response from Dr. D.N.'s office, on December 20, 2019 VA communicated with the Veteran who advised that the audiologist did use puretone audiometry testing and the he/she was a state licensed audiologist, though there was no information provided as to the state of licensure or the name of the audiologist. The Veteran further advised that the audiologist's office would send additional information confirming the tests and results. Other than Dr. D.N.'s office response received January 2020, no other documents or other repossess were received. Based on the above, the Board finds the January 10, 2020 response received from Dr. D.N.'s office that the person who performed the private audiological evaluation was not a stated licensed audiologist to be more probative than the Veteran's verbal assertion that they were. This is based on the fact that the Veteran was relying on information provided to him and the actual doctor's office provided the contrary information at a later date. As such, the Board fins that the December 2015 private audiological evaluation provided to the Veteran is inadequate for VA rating purposes. 38 C.F.R. § 4.85. The Board also finds that there was substantial compliance with the Board's Remand instructions. Further, the results of the VA audiological evaluations provided to the Veteran do not support the award of a compensable rating for his service connected hearing loss. As stated above, this is a purely mechanical application of the permitted and properly conducted audiometric testing results. In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). Entitlement to a compensable rating for the Veteran's bilateral hearing loss is denied. Mary E. Rude Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Bannach, 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.