Citation Nr: 21039849 Decision Date: 07/01/21 Archive Date: 07/01/21 DOCKET NO. 15-05 977 DATE: July 1, 2021 ORDER An initial compensable rating for bilateral hearing loss is denied. FINDING OF FACT For the entire period of appeal, the hearing loss is manifested by no more than Level VIII hearing acuity in the right ear and Level I hearing acuity in the left ear based on pure tone threshold average and speech discrimination. CONCLUSION OF LAW The criteria for an initial compensable rating for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Navy from November 1966 to December 1970. In June 2017, the Veteran testified at a videoconference hearing before the undersigned, and a transcript of that hearing is of record. The Board remanded the issue in May 2018 for further development, including obtaining any outstanding VA treatment records and affording the Veteran a VA hearing loss examination. The outstanding VA treatment records have since been associated with the claims file and the Veteran had a VA audiological examination in January 2019. The Board therefore finds there has been substantial compliance with the remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Stegall v. West, 11 Vet. App. 268 (1998). 1. Increased rating for bilateral hearing loss. Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained 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 the residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. All reasonable doubt will be resolved in the claimant's favor. 38 C.F.R. § 4.3. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Where the evaluation of hearing loss is at issue, an examination for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a pure tone audiometry test. Examinations will be conducted without the use of hearing aids. 38 C.F.R. § 4.85(a). A rating for hearing loss is determined by a mechanical application of the rating schedule to the numeric designations assigned based on audiometric test results. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). Evaluations of bilateral hearing loss range from noncompensable to 100 percent based on organic impairment of hearing acuity, as measured by a controlled speech discrimination test and the average hearing threshold, as measured by pure tone audiometric tests at the frequencies of 1000, 2000, 3000 and 4000 hertz. The rating schedule establishes 11 auditory acuity levels designated from Level I, for essentially normal hearing acuity, through level XI for profound deafness. Under 38 C.F.R. § 4.85, Table VI (Numeric Designation of Hearing Impairment Based on Puretone Threshold Average and Speech Discrimination) is used to determine a Roman numeral designation (I through XI) for hearing impairment based on a combination of the percent of speech discrimination (horizontal rows) and the pure tone threshold average (vertical columns). The Roman numeral designation is located at the point where the percentage of speech discrimination and pure tone average intersect. 38 C.F.R. § 4.85(b). The pure tone threshold average is the sum of the pure tone thresholds at 1000, 2000, 3000 and 4000 hertz, divided by 4. This average is used in all cases to determine the Roman numeral designation for hearing impairment. 38 C.F.R. § 4.85(d). Table VI Numeric designation of hearing impairment based on puretone threshold average and speech discrimination. % of discrim- ination Puretone Threshold Average 0-41 42-49 50-57 58-65 66-73 74-81 82-89 90-97 98+ 92-100 I I I II II II III III IV 84-90 II II II III III III IV IV IV 76-82 III III IV IV IV V V V V 68-74 IV IV V V VI VI VII VII VII 60-66 V V VI VI VII VII VIII VIII VIII 52-58 VI VI VII VII VIII VIII VIII VIII IX 44-50 VII VII VIII VIII VIII IX IX IX X 36-42 VIII VIII VIII IX IX IX X X X 0-34 IX X XI XI XI XI XI XI XI Alternatively, VA regulations provide that in cases of exceptional hearing loss, when the pure tone thresholds at each of the four specified frequencies (1000, 2000, 3000 and 4000 hertz) is 55 decibels or more, 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. Each ear will be evaluated separately. 38 C.F.R. § 4.86(a). The provisions of 38 C.F.R. § 4.86(b) further provide that, when the pure tone threshold is 30 decibels or less at 1,000 Hertz, and 70 decibels or more at 2,000 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. That numeral will then be elevated to the next higher Roman numeral. Each ear will be evaluated separately. Table VIA Numeric designation of hearing impairment based only on pure tone threshold average: 0-41 42-48 49-55 56-62 63-69 70-76 77-83 84-90 91-97 98-104 105+ I II III IV V VI VII VIII IX X XI The findings for each ear from either Table VI or Table VIA, are then applied to Table VII (Percentage Evaluations for Hearing Impairment) to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment of each ear. The horizontal rows represent the ear having the better hearing and the vertical columns the ear having the poor hearing. The percentage evaluation is located at the point where the rows and column intersect. 38 C.F.R. § 4.85(e). Table VII Percentage evaluation for hearing impairment (diagnostic code 6100). Poorer Ear XI 100* X 90 80 IX 80 70 60 VIII 70 60 50 50 VII 60 60 50 40 40 VI 50 50 40 40 30 30 V 40 40 40 30 30 20 20 IV 30 30 30 20 20 20 10 10 III 20 20 20 20 20 10 10 10 0 II 10 10 10 10 10 10 10 0 0 0 I 10 10 0 0 0 0 0 0 0 0 0 XI X IX VIII VII VI V IV III II I Analysis An August 2012 private hearing loss audiogram test indicates the following approximate puretone thresholds, in decibels: HERTZ 1000 2000 3000 4000 Average RIGHT EAR 40 60 60 60 55 LEFT EAR 30 50 55 60 48.75 The Board notes that a Maryland CNC test was not conducted, and as such, the audiogram test is incomplete and/or inadequate for VA purposes. 38 C.F.R. § 4.85(a). The treating audiologist discussed avoiding loud noise exposure to prevent further damage to the Veteran's hearing. The Veteran had a VA hearing loss examination in November 2012. His puretone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT EAR 35 55 65 65 55 LEFT EAR 30 45 45 55 44 Speech recognition scores were 96 percent in the right ear and 100 percent in the left ear, and the examiner indicated that the puretone thresholds were valid for rating purposes and that use of word recognition scores was appropriate. Applying these results to Table VI results in a designation of Level I for the right ear and Level I for the left ear. The Veteran had a VA hearing loss evaluation in June 2017. His approximate puretone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT EAR 40 55 60 60 53.75 LEFT EAR 30 25 50 65 42.50 The Board notes that it is unclear if Maryland CNC test Speech recognition scores were used in this audiogram test; however, because the evaluation was done by VA, the Board will consider the recognition scores of 96 percent in the right ear and 96 percent in the left ear to be Maryland CNC speech discrimination scores. Applying these results to Table VI results in a designation of Level I for the right ear and Level I for the left ear. The Veteran had another VA hearing loss examination in January 2019. His puretone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT EAR 80 95 100 85 90 LEFT EAR 45 60 55 65 56.25 Speech recognition scores were 94 percent in the right ear and 94 percent in the left ear, and the examiner indicated that the puretone thresholds were valid for rating purposes and that use of word recognition scores was appropriate. Applying these results to Table VI results in a designation of Level III for the right ear and Level I for the left ear. The January 2019 audiometric testing outlined above indicates that the Veteran experienced an exceptional pattern of hearing impairment due to puretone thresholds in the right ear of 55 decibels or greater at each of the frequencies 1000, 2000, 3000, and 4000 Hertz. 38 C.F.R. § 4.86(a). Accordingly, the Board will apply the more favorable of Table VI and Table VIa to that ear. According to Table VI, the Veteran demonstrates Level VIII in the right ear, which is more favorable than Level III under Table VI. Nevertheless, even including the exceptional pattern of hearing impairment for the right ear, results of the VA audiogram examinations and a private audiogram examination translate to, at worst, Level VIII hearing loss in the right ear and Level I hearing loss in the left ear when applied to Table VI of the rating schedule (pure tone threshold average and speech discrimination). This level of hearing loss warrants a noncompensable (zero percent) rating under Table VII of the rating schedule. Therefore, a compensable schedular rating is not warranted under Diagnostic Code 6100 at any point during the period of appeal. See 38 C.F.R. § 4.85, Diagnostic Code 6100. H. SEESEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Dourmashkin, Mark W. 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.