Citation Nr: 21040801 Decision Date: 07/07/21 Archive Date: 07/07/21 DOCKET NO. 16-40 626 DATE: July 7, 2021 ORDER Entitlement to a compensable rating for bilateral hearing loss is denied. FINDING OF FACT The Veteran had, at worst, Level III hearing acuity in the right ear and level II hearing acuity in the left ear. CONCLUSION OF LAW The criteria for an entitlement to a compensable rating for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.85, 4.86; Diagnostic Code 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1971 to February 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In March 2019, the Board remanded this matter to the RO for ordering a new VA examination to assess the severity of the Veteran's current bilateral hearing loss. As an adequate VA examination has been obtained since then, the Board finds there has been substantial compliance with the previous Board remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veteran asserts his bilateral hearing loss warrants a higher rating. He believes his hearing loss is far worse than currently evaluated. His bilateral hearing loss disability is currently in receipt of a non-compensable rating under Diagnostic Code (DC) 6100. Ratings for service-connected bilateral hearing loss range from noncompensable (0 percent) to 100 percent. These ratings are based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination testing together with the average hearing threshold level as measured by pure tone audiometry tests in the frequencies of 1000, 2000, 3000 and 4000 cycles per second. In evaluating service-connected bilateral hearing loss, disability ratings are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are performed. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992); 38 C.F.R. § 4.85. Diagnostic Code (DC) 6100 provides a table for rating purposes (Table VI) to determine a Roman numeral designation (I through XI) for hearing impairment. The hearing impairment is established by a state licensed audiologist using a controlled speech discrimination test and the pure tone threshold average (which is the sum of the pure tone thresholds at 1000, 2000, 3000, and 4000 Hertz, divided by four). See 38 C.F.R. § 4.85. Table VII is used to determine the percentage rating by combining the Roman numeral designations for hearing impairment of each ear. The horizontal row represents the ear having the poorer hearing and the vertical column represents the ear having the better hearing. Id. Under 38 C.F.R. § 4.86(a), when the pure tone threshold 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 is to be evaluated separately. See 38 C.F.R. § 4.86(a). The provisions of 38 C.F.R. § 4.86 (b) provide that when the pure tone 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. That numeral will then be evaluated to the next higher Roman numeral. See 38 C.F.R. §4.86(b). Table VIA is also utilized when the audiologist certifies that the use of the speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc. See 38 C.F.R. § 4.85(c). The rating criteria contemplate speech reception thresholds and ability to hear spoken words on Maryland CNC testing. The functional impact that the Veteran described in his November 2016 hearing testimony is contemplated by the rating criteria. Doucette v. Shulkin, 28 Vet. App. 366 (2017). The Veteran's main complaint is reduced hearing acuity and clarity, which is what is contemplated in the rating assigned. See Rossy v. Shulkin, 29 Vet. App. 142, 145 (2017). The Veteran first underwent a VA audiological examination in August 2015, summarized in the chart below, with puretone threshold recorded in decibels. HERTZ 1000 2000 3000 4000 Average RIGHT 25 40 60 65 47.5 LEFT 35 65 75 70 61.25 The audiologist also administered the Maryland CNC word list pursuant to VA regulations. See 38 C.F.R. § 4.85. The Veteran attained a 96 percent score in his right ear and a 96 percent score in his left ear. Applying the results of the August 2015 VA examination to Table VI shows that the Veteran had a level I hearing acuity in the right ear, and a level II hearing acuity in the left ear. Under Table VII, such hearing acuity warrants a 0 percent rating. The findings do not reflect an exceptional pattern of hearing loss, nor did the examiner indicate that speech recognition scores were unreliable; therefore, Table VIA is not for application. Post-Board remand, the Veteran underwent another VA audiological examination in October 2019, summarized in the chart below, with puretone threshold recorded in decibels. HERTZ 1000 2000 3000 4000 Average RIGHT 25 40 60 55 45 LEFT 25 50 60 65 50 The audiologist also administered the Maryland CNC word list pursuant to VA regulations. See 38 C.F.R. § 4.85. The Veteran attained a 78 percent score in his right ear and an 86 percent score in his left ear. Applying the results of the October 2019 VA examination to Table VI shows that the Veteran had a level III hearing acuity in the right ear, and a level II hearing acuity in the left ear. Under Table VII, such hearing acuity warrants a 0 percent rating. The findings do not reflect an exceptional pattern of hearing loss, nor did the examiner indicate that speech recognition scores were unreliable; therefore, Table VIA is not for application. The record does not include any further pertinent audiometry during the period under consideration. As the assignment of a disability rating for hearing impairment is derived by mechanical application of the rating schedule to the numeric designations assigned after audiometry evaluations are rendered, there is no doubt as to the proper evaluation to be assigned. Lendenmann, 3 Vet. App. 345; 38 C.F.R. § 4.85, Tables VI-VII, Code 6100. The findings on official audiometry fall squarely within the parameters of the criteria for a noncompensable rating, and that rating reflects the reported functional impairment (difficulty having conversation and hearing speech when he does not pay attention and/or is on the phone). Factors warranting referral for extraschedular consideration are not shown or alleged. Accordingly, the preponderance of the evidence is against the claim for a compensable rating for bilateral hearing loss. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). Jenna Brant Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Lee, Catherine 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.