Citation Nr: 21032777 Decision Date: 05/27/21 Archive Date: 05/27/21 DOCKET NO. 16-36 982 DATE: May 27, 2021 ORDER Entitlement to a compensable initial rating for bilateral hearing loss is denied. FINDING OF FACT The Veteran's bilateral hearing loss has not manifested by worse than Level II and Level III. CONCLUSION OF LAW The criteria for a compensable initial rating for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.10, 4.85, Diagnostic Code 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1968 to January 1974. This case comes to the Board of Veterans' Appeals (Board) from a February 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office. The case was remanded for further development in August 2019. The Veteran has requested a compensable rating for his service-connected bilateral hearing loss. 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). 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 Maryland CNC speech discrimination test together with the average hearing threshold level measured by puretone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hertz). 38 C.F.R. § 4.85. To evaluate the degree of disability from defective hearing, the schedule establishes 11 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 and VII, Diagnostic Code 6100. An exceptional pattern of hearing impairment occurs when the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more. 38 C.F.R. § 4.86(a). In that situation, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral. Further, when the average puretone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral, and that numeral will then be elevated to the next higher numeral. 38 C.F.R. § 4.86(b). The Veteran attended a VA examination in January 2014. He reported having difficulty hearing in groups and with background noise, and he used binaural hearing aids. Puretone threshold testing showed the following results, in decibels: HERTZ 1000 2000 3000 4000 Average RIGHT 40 50 70 75 59 LEFT 40 50 65 75 58 The average puretone thresholds were 59 decibels in the right ear and 58 decibels in the left ear. Speech audiometry revealed speech recognition ability of 92 percent in the right ear and 84 percent in the left ear. Applying the findings from the January 2014 examination to Table VI in 38 C.F.R. § 4.85 yields a finding of Level II in the right ear and Level III in the left ear. Where hearing loss is at Levels II and III, a noncompensable rating is assigned. Id. The Veteran also attended a VA examination in December 2019. He reported that the TV was muddled, and hearing things like the letters on "Wheel of Fortune" were not distinguishable. He stated that he had to read lips to know what people are saying. Puretone threshold testing showed the following results, in decibels: HERTZ 1000 2000 3000 4000 Average RIGHT 50 65 80 85 70 LEFT 45 60 75 90 68 The average puretone thresholds were 70 decibels in the right ear and 68 decibels in the left ear. Speech audiometry revealed speech recognition ability of 88 percent in the right ear and 94 percent in the left ear. Applying the findings from the December 2019 examination to Table VI in 38 C.F.R. § 4.85 yields a finding of Level III in the right ear and Level II in the left ear, which again results in a noncompensable rating. Id. The Veteran's VA treatment record show that he is followed for hearing loss and has been prescribed hearing aids. In April 2013, he was found to have mild to severe sensorineural hearing loss and normal hearing from 250 Hertz to 500 Hertz, decreasing to a mild to profound sensorineural hearing loss at higher frequencies in the left ear. Word recognition ability was good in each ear at elevated speaking levels bilaterally. In October 2016, the Veteran had another audiology consultation, and his hearing sensitivity was found to be stable when compared to the 2013 audiometric testing. In May 2019, he was noted to have moderate to severe sensorineural loss, with minimal change in hearing thresholds from his last evaluation. The Board acknowledges that in August 2019, the Board remanded this issue in part so that the audiogram testing results associated with the Veteran's regular treatment for hearing loss could be obtained. The record shows that the Agency of Original Jurisdiction (AOJ) did attempt to obtain all of the Veteran's treatment records associated with audiology treatment, but as they stated in the June 2020 Supplemental Statement of the Case, these audiograms were not recorded or added to his electronic medical file, and could not be obtained. The Board therefore finds that there has been substantial compliance with the August 2019 remand directives, and the AOJ made reasonable efforts to fulfill VA's duty to assist. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that Stegall v. West, 11 Vet. App. 268 (1998) requires only substantial compliance with remand orders, rather than absolute compliance). The Board regrets that the complete test results from these VA medical appointments are not available for review, and advises the Veteran that if he ever does receive test results which show higher levels of hearing impairment, he should submit these records to VA or request to the medical professional performing the test submit these records to be included in his electronic claims file. Based on the results of the Veteran's VA examinations and the other medical evidence of record, the Board does not find any test results which would allow for a compensable rating. The functional effects of hearing loss on the Veteran's daily life activities and occupational functioning have been discussed by the Veteran at his VA examinations and have been taken into consideration by VA. See 38 C.F.R. § 4.10; Martinak v. Nicholson, 21 Vet. App. 447, 455-56 (2007). The Veteran has reported having trouble hearing speech, the television, and in groups or with background noise. This is reflective of the types of functional difficulty that would be expected to be caused by moderate hearing loss, but is not indicative that a higher, compensable rating would be warranted. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (Manifestations such as difficulty hearing sounds are the types of difficulties contemplated by the schedular criteria for hearing loss.). Accordingly, the VA examinations of record are sufficiently in compliance with the provisions of VA regulations, and it is assigned great probative value in determining the Veteran's level of hearing impairment. The most probative medical evidence as to the nature of the appellant's hearing loss are the audiometric findings, and those discussed above reveal that the Veteran's hearing loss does not warrant a compensable rating, and the 0 percent rating is continued. In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine; the preponderance of the evidence is against the Veteran's claim, and the doctrine is not applicable. 38 U.S.C. § 5107(b). DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Mary E. Rude, 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.