Citation Nr: 21030292 Decision Date: 05/18/21 Archive Date: 05/18/21 DOCKET NO. 12-17 466 DATE: May 18, 2021 ORDER An initial compensable rating for bilateral hearing loss is denied. FINDING OF FACT Throughout the claim period, the Veteran's bilateral hearing loss has been manifested by impairment of auditory acuity no worse than Level II in the right and left ears. See VA Examinations dated March 2009, May 2014, April 2019; December 2011 VA Treatment Record (VATR); April 2017 Private Treatment Record (PTR); but see PTRs dated July 2011 and February 2019 (reflecting impairment of auditory acuity of the right and left ears between Levels IV and XI). CONCLUSION OF LAW The criteria for an initial compensable rating for bilateral hearing loss are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.85, Diagnostic Code 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Air Force from February 1962 to November 1966. This case is before the Board of Veterans' Appeals (Board) on appeal from a December 2010 rating decision by the Department of Veterans Affairs (VA) Appeals Management Center (AMC) in Washington, DC. Court of Appeals for Veterans Claims Remand In an April 2020 decision, the Board denied the Veteran's claim for an initial compensable rating for bilateral hearing loss. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court). In a December 2020 Order, the Court granted the parties' Joint Motion for Remand (JMR), remanding the case to the Board on the grounds that the Board "failed to provide an adequate statement of reasons or bases" for its decision. Specifically, the JMR stated that the Board's decision failed to include a consideration of the holdings of Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992) and Martinak v. Nicholson, 21 Vet. App. 447, 456 (2007), namely that "[a]ssignment of 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." In light of the Court's remand, the Board includes a discussion of these holdings in the section titled Lendenmann and Martinak, below. Entitlement to an Initial Compensable Rating for Bilateral Hearing Loss Loss of hearing acuity is evaluated under 38 C.F.R. § 4.85, which establishes eleven auditory hearing acuity levels designated from Level I, for essentially normal hearing acuity, through Level XI, for profound deafness. Disability ratings for hearing loss are derived from a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing, including puretone thresholds and speech discrimination percentages. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). The Veteran has been afforded three VA audiological examinations during the claim period, as well as various VA and private audiological evaluations, of which the following used the Maryland CNC controlled speech discrimination test and thus are adequate for VA purposes: a December 2011 VA audiogram and April 2017 and February 2019 private audiograms. See 38 C.F.R. § 4.85(a) ("An examination for hearing impairment for VA purposes... must include a controlled speech discrimination test (Maryland CNC)....") Most other audiograms of record performed within the claim period used the NU-6 controlled speech discrimination test, rendering the results inadequate for VA rating purposes. See PTRs dated June 2012, September 2013, May 2014, October 2015, November 2018, January 2020; April 2017 VATR. The only possible exception is a July 2011 PTR containing an audiogram from a private examiner which the RO was unable to reach for clarification as to whether the NU-6 or the Maryland CNC test was used. If adequate for VA purposes, this audiogram would reflect findings warranting a compensable rating, but the record itself contains no indication of whether the Maryland CNC test was used. Therefore, resolving all reasonable doubt in the Veteran's favor, the Board finds that the July 2011 audiogram used the Maryland CNC test and accordingly is adequate for VA purposes. The puretone threshold findings and results of speech discrimination tests for those audiograms of record which the Board finds to be adequate for VA purposes are as follows, with average puretone thresholds for the frequencies 10004000 Hz noted in bold at the far right: March 2009 VA Examination HERTZ 500 1000 2000 3000 4000 RIGHT 45 30 25 25 40 30 LEFT 40 35 25 25 40 31 Speech Discrimination: R 100%; L 100% July 2011 PTR HERTZ 500 1000 2000 3000 4000 RIGHT 40 45 45 40 60 46 LEFT 30 45 40 40 60 43 Speech Discrimination: R 70%; L 60% December 2011 VATR HERTZ 500 1000 2000 3000 4000 RIGHT 45 45 35 35 45 41 LEFT 40 40 40 30 55 41 Speech Discrimination: R 92%; L 100% May 2014 VA Examination HERTZ 500 1000 2000 3000 4000 RIGHT 35 45 35 40 50 43 LEFT 30 40 40 30 55 41 Speech Discrimination: R 96%; L 96% April 2017 PTR HERTZ 500 1000 2000 3000 4000 RIGHT 40 45 45 40 60 54.2 LEFT 35 45 45 40 60 45 Speech Discrimination: R 84%; L 84% February 2019 PTR HERTZ 500 1000 2000 3000 4000 RIGHT 55 55 65 75 80 66 LEFT 55 60 65 75 75 66 Speech Discrimination: R 24%; L 16% April 2019 VA Examination HERTZ 500 1000 2000 3000 4000 RIGHT 40 45 45 50 50 48 LEFT 40 45 45 40 60 48 Speech Discrimination: R 92%; L 94% Applying the results of these audiograms to Table VI of 38 C.F.R. § 4.85 yields the following findings, and the corresponding ratings under Table VII: March 2009R Level I; L Level I 0 Percent Disability July 2011R Level IV; L Level V 10 Percent Disability December 2011R Level I; L Level I 0 Percent Disability May 2014R Level I; L Level I 0 Percent Disability April 2017R Level II; L Level II 0 Percent Disability February 2019R Level XI; L Level XI 100 Percent Disability April 2019R Level I; L Level I 0 Percent Disability The Board has the responsibility to interpret examinations in light of the entirety of the record, and to reconcile various examinations into a consistent disability picture. 38 C.F.R. § 4.2. Bearing this in mind, the Board notes that the audiograms of record paint a remarkably consistent picture of the Veteran's hearing loss across time, with two exceptions. While the July 2011 and February 2019 reflect hearing loss at Levels IV, V, and XI, respectively, all five of the remaining audiograms found to be adequate for VA purposes reflect hearing loss at either Level I or II over the ten years between March 2009 and April 2019. Moreover, the December 2011 and April 2019 audiogramsboth reflecting hearing loss at Level I bilaterallywere performed mere months before or after the July 2011 and February 2019 audiograms. Therefore, because the overall disability picture presented by the adequate audiograms of record is so consistent, and because each of the audiograms that appear to diverge from this picture is contradicted by another audiogram in close temporal proximity, the Board finds that the preponderance of the evidence indicates that the Veteran's bilateral hearing loss has been manifested by impairment of auditory acuity no worse than Level II in the right and left ears throughout the claim period. Accordingly, an initial compensable rating for bilateral hearing loss is not warranted. Lendenmann and Martinak As noted above, in its December 2020 order granting the parties' JMR, the Court remanded for the Board to "provide an adequate statement of reasons and bases, to include consideration of the Court's guidance in Lendenmann and Martinak," namely, that "[a]ssignment of 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). Under this guidance and the regulations governing the rating of hearing impairment, VA assigns disability ratings for hearing loss by mechanical application of puretone threshold and speech discrimination test results to Tables VI or VIa and VII of 38 C.F.R. § 4.85. However, neither the Court's guidance in Lendenmann and Martinak nor VA regulations prevent the Board from performing an analysis of the relative probative value of audiological examinations of record. Moreover, as noted above, the Board is required by regulation to "interpret reports of examination in the light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present." 38 C.F.R. § 4.2. Here, for the reasons stated above, the Board finds that the results of the July 2011 and February 2019 examinations comprise significant anomalies in an otherwise consistent medical record, and for this reason affords them little probative weight. Therefore, in light of its duty to reconcile various reports into a consistent disability picture, the Board finds that these results do not accurately reflect the severity of the Veteran's disability. In support of this finding, the Board cites to the remainder of the adequate audiological examinations of record, all of which reflect a consistent slow progression of the Veteran's hearing loss over time, and none of which reflect findings warranting a compensable rating. See VA Examinations dated March 2009, May 2014, April 2019; December 2011 VATR; April 2017 PTR. In a March 2021 written brief, the Veteran's representative argued that both the July 2011 and February 2019 audiograms "were found adequate by the Board for their consideration" and therefore "must be factored into the Board's decision." The representative stated that these two "'positive' tests cannot be ignored." This decision does not ignore the results of the July 2011 and February 2019 audiograms. Rather, as just stated, it finds that they do not accurately reflect the severity of the Veteran's disability. This finding is not inconsistent with the Board's finding that these audiological examinations are "adequate" for VA purposes. The finding of adequacy does not imply a determination of probative weight. An inadequate examination may not be considered for VA rating purposes, but an adequate examination may nevertheless be found to be more or less probative relative to other adequate examinations. Here, the Board's finding of adequacy merely reflects that these examinations used the appropriate speech discrimination test, as did every other adequate examination of record. But unlike every other adequate examination of record, the July 2011 and February 2019 audiograms represent significant anomalies in an otherwise well-attested and consistent disability picture. For this reason, the Board finds that these examinations, though adequate, are not highly probative. In sum, although "[a]ssignment of 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," it is VA's duty to "interpret reports of examination in the light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present." Here, the Board finds that in light of the entirety of the medical record, the results of the July 2011 and February 2019 audiograms do not accurately reflect the severity of the Veteran's hearing impairment, and thus affords them little probative weight. Rather, the entirety of the record consistently reflects that the Veteran's bilateral hearing loss has been manifested by impairment of auditory acuity no worse than Level II in the right and left ears. Therefore, an initial compensable rating for bilateral hearing loss is not warranted. S.C. KREMBS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P. Timmerman, 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.