Citation Nr: 21040878 Decision Date: 07/07/21 Archive Date: 07/07/21 DOCKET NO. 16-15 907 DATE: July 7, 2021 ORDER Entitlement to a 10 percent disability rating, and no higher, for bilateral hearing loss is granted. FINDING OF FACT The Veteran's bilateral hearing has been manifested by hearing acuity of no worse than Level VI in the right ear and no worse than Level II in the left ear. CONCLUSION OF LAW The criteria for a 10 percent disability rating, and no higher, for bilateral hearing loss have 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 from June 1985 to August 1987. This case comes to the Board of Veterans' Appeals (Board) on appeal from a July 2015 rating decision. In May 2019, the Board remanded the claims for entitlement to service connection for left ear hearing loss and for a compensable rating for right ear hearing loss. In a June 2020 rating decision, the regional office (RO) granted service connection for left ear hearing loss. As such, the claim currently before the Board is entitlement to a compensable disability rating for bilateral hearing loss. 1. Entitlement to a compensable disability rating for bilateral hearing loss. The Veteran contends that he is entitled to a higher rating because he experiences moments at functions and in daily life where he is unable to hear and understand what is being said to him, which creates uncertainty, per his April 2016 VA Form 9. 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 pure tone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hertz). 38 C.F.R. § 4.85, Diagnostic Code 6100. To evaluate the degree of disability from bilateral service-connected hearing loss, 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. An exceptional pattern of hearing impairment occurs when the pure tone 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 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, and that numeral will then be elevated to the next higher numeral. 38 C.F.R. § 4.86(b). In April 2015, the Veteran submitted a March 2015 private DBQ. The examiner reported that the Veteran had problems communicating. For the sake of argument, assuming such examination was performed to VA standards, the audiometry test results equate to Level IV hearing of the right ear and Level IV hearing for the left ear using Table VI. 38 C.F.R. § 4.85. Applying the percentage ratings for hearing impairment found in Table VII, such findings result in a 10 percent disability rating. 38 C.F.R. § 4.85. Although there were occasional complaints regarding hearing loss in VA medical records, they generally did not provide sufficient information for rating purposes. For example, an October 2015 VA medical record documented audiological evaluation with 96 percent right ear and 94 percent left ear word recognition but did not provide necessary pure threshold findings. The provider did find, however, that the Veteran was "not a hearing aid candidate as he has essentially normal hearing in both ears." The June 2015 VA examiner found audiometry test results equating to Level II hearing of the right ear and Level I hearing for the left ear using Table VI. 38 C.F.R. § 4.85. Applying the percentage ratings for hearing impairment found in Table VII, such findings result in a noncompensable disability rating. 38 C.F.R. § 4.85. Following a report of worsening hearing loss, the Veteran underwent another VA examination in November 2019. The VA examiner's findings were consistent with Level IV hearing of the right ear and Level II hearing of the left ear, using Table VI. Using Table VII, those findings are consistent with a noncompensable percent disability rating. The Board further finds that those VA examinations generally did not reflect certification of language difficulties, inconsistent speech audiometry scores, or pure tone threshold findings of 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz, or pure tone thresholds of 55 decibels or more from 1000 to 4000 Hertz as to warrant consideration as an exceptional pattern of hearing impairment. 38 C.F.R. § 4.86. The only exception to showing an exceptional hearing pattern was the November 2019 VA examination, and then only for the right ear. The left ear does not meet such an exceptional pattern of hearing. Under Table VIA, the right ear hearing level during the November 2019 VA examination is consistent with Level V. Taken with the Level II found for left ear hearing loss, a 10 percent disability rating would be warranted under Table VII. The Board expressly acknowledges its consideration of the lay evidence of record when adjudicating this claim, as indicated above. Also, for example, in his VA examinations he reported having to ask people to repeat themselves, more difficulty in noisy group situations and needing to listen to the television at a higher volume. The Veteran is competent to report difficulty with his hearing; however, 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). The rating criteria contemplate speech reception thresholds and ability to hear spoken words on Maryland CNC testing. The functional impact that the Veteran describes, is contemplated by the rating criteria. Doucette v. Shulkin, 28 Vet. App. 366 (2017). The Veteran's main complaint is effectively 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 Board finds that a disability rating of 10 percent, and no higher, for bilateral hearing loss is warranted. H.M. WALKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Lindio 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.