Citation Nr: 21041504 Decision Date: 07/09/21 Archive Date: 07/09/21 DOCKET NO. 16-02 371 DATE: July 9, 2021 ORDER A compensable rating for bilateral hearing loss is denied. FINDING OF FACT Throughout the period on appeal, the Veteran's auditory acuity has been no worse than level II in either ear. CONCLUSION OF LAW The criteria for a 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 United States Army from September 1970 to April 1972. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office in Montgomery, Alabama. In February 2020, the Veteran testified at a Board video-conference hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the record. In March 2020, the Board, in pertinent part, granted service connection for right ear hearing loss and remanded the matter of the Veteran's entitlement to a compensable rating for bilateral hearing loss to the agency of original jurisdiction (AOJ) for additional development. After taking further action, the AOJ denied a compensable rating and returned the case to the Board. In a May 2021 submission, the Veteran's representative advanced argument to the effect that an examination obtained in December 2020 was inadequate for rating purposes because the examiner did not fully consider evidence concerning the impact that the Veteran's hearing loss had on his functioning and daily life. The Board finds that argument unavailing. The December 2020 examiner explicitly noted the functional impact of the Veteran's condition, recording the Veteran's report that he could not hear when people were talking to him, that he could not hear road noise when he was driving to know what was going on around him, that he had to read lips, and that he had trouble deciphering words over the telephone. See Martinak v. Nicholson, 21 Vet. App. 447, 454-55 (2007). The examination is adequate in that regard, and there has been at least substantial compliance with the Board's remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to a compensable rating for bilateral hearing loss. Disability evaluations are determined by the application of a schedule of ratings, which is in turn based on the average impairment of earning capacity caused by a given disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Hearing loss is evaluated under Diagnostic Code 6100. The condition is normally rated on the basis of controlled speech discrimination tests (Maryland CNC), together with the results of puretone audiometry tests. See 38 C.F.R. § 4.85. Ordinarily, the results of these tests are charted on Table VI, as set out in the Rating Schedule, to determine the appropriate Roman numeral designation (I through XI) to be assigned for the hearing impairment in each ear. These numeric designations are then charted on Table VII to determine the rating to be assigned. Id.; see also Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992) (indicating that evaluations of hearing loss are determined by a mechanical application of the rating schedule). However, not all patterns of hearing loss are rated in this manner. For example, where the puretone threshold at 1000, 2000, 3000, and 4000 Hertz is 55 decibels or more, the Roman numeral designation for that ear is taken from either Table VI or VIa, whichever results in the higher numeral. 38 C.F.R. § 4.86(a). See also 38 C.F.R. §§ 4.85(c) and 4.86(b) (indicating that alternative methodologies also apply when the examiner certifies that use of the speech discrimination test is not appropriate or when the puretone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz). In August 2014, the Veteran underwent a VA audiology examination. He reported that his hearing loss was such that he had to be looking at someone to hear and understand what they were saying. Audiometric testing at that time produced the following results (measured in decibels): HERTZ 1000 2000 3000 4000 Avg. RIGHT 30 30 45 55 40 LEFT 25 30 55 60 43 Speech discrimination (Maryland CNC) scores were 92 percent for the right ear and 96 percent for the left ear. Under 38 C.F.R. § 4.85 and Table VI, these results correspond to level I acuity in both ears which, in turn, warrants a noncompensable rating under Table VII. The Veteran underwent another VA audiology examination in September 2017. Testing at that time demonstrated the following results: HERTZ 1000 2000 3000 4000 Avg. RIGHT 20 30 50 60 40 LEFT 25 25 50 65 41 Speech discrimination scores were 84 percent, bilaterally. Under 38 C.F.R. § 4.85 and Table VI, these results correspond to level II acuity in both ears which, in turn, warrants a noncompensable rating under Table VII. In March 2019, the Veteran underwent a private audiometric examination. The March 2019 examination report reflects testing of puretone thresholds, but indicates that "live voice," rather than Maryland CNC controlled speech discrimination testing, was used to measure speech discrimination. As such, that report is inadequate for rating purposes. See 38 C.F.R. § 4.85. As noted previously, the Veteran most recently underwent audiometric testing in December 2020. Testing at that time demonstrated the following puretone thresholds: HERTZ 1000 2000 3000 4000 Avg. RIGHT 35 35 65 75 52.50 LEFT 50 45 75 85 63.75 Speech discrimination scores were 96 percent, bilaterally. Under 38 C.F.R. § 4.85 and Table VI, these results correspond to level I acuity for the right ear and level II acuity for the left ear, which, in turn, warrants a noncompensable rating under Table VII. In light of the foregoing, it is the Board's conclusion that the preponderance of the evidence is against the Veteran's claim for a compensable rating for bilateral hearing loss. As set forth above, the only adequate and available audiometric reports demonstrate entitlement to nothing more than a 0 (zero) percent rating. In arriving at this conclusion, the Board has considered the Veteran's lay assertions regarding his diminished hearing. However, as noted, the assignment of disability ratings for hearing impairment is derived by a mechanical application of the Rating Schedule to the numeric designations based on audiometric test results. See Lendenmann, supra. The rating criteria for hearing loss contemplate functional effects such as difficulty understanding speech, as this is precisely the type of effect that VA's audiometric tests are designed to measure. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). A higher rating can be awarded only when loss of hearing has reached a specified measurable level. The Board has also considered whether the Veteran is entitled to a "staged rating." See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). It is the Board's conclusion, however, that the Veteran's hearing loss has never been no more than noncompensably disabling at any point pertinent to the present appeal. The appeal must be denied. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board F. Lanton, 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.