Citation Nr: 22008066 Decision Date: 02/11/22 Archive Date: 02/11/22 DOCKET NO. 18-36 837 DATE: February 11, 2022 ORDER Entitlement to an initial compensable disability rating for bilateral hearing loss is denied. FINDING OF FACT The medical evidence of record demonstrates that the Veteran's hearing loss has manifested in no worse than Level I acuity in the right ear and no worse than Level I acuity in the left ear. CONCLUSION OF LAW The criteria for an initial compensable rating for bilateral hearing loss have not been satisfied. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85, 4.86. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from September 1974 to September 1976. The matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2018 rating decision. On his July 2018 VA Form 9, the Veteran requested an in-person Travel Board hearing before the Board at a local VA office. A hearing was scheduled for January 5, 2022. The Veteran failed to report for this scheduled hearing. VA has received no communication from the Veteran pertaining to the hearing. Because the Veteran failed to appear for his scheduled hearing without good cause and there has been no request for postponement, his request for a hearing is considered withdrawn. Entitlement to an initial compensable disability rating for bilateral hearing loss is denied. Disability ratings are determined by the criteria set forth in the VA Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from the disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher rating 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. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. All benefit of the doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. Ratings for hearing loss range from noncompensable (0 percent) to 100 percent based on organic impairment of hearing acuity as measured by the results of speech discrimination tests combined with the average hearing threshold levels as measured by pure tone audiometry tests in the frequencies 1000, 2000, 3000, and 4000 cycles per second. To rate the degree of disability for service-connected hearing loss, the Rating Schedule has established eleven auditory acuity levels, designated from Level I, for essentially normal acuity, through Level XI, for profound deafness. 38 C.F.R. § 4.85(h), Table VI. In order to establish entitlement to a compensable rating for hearing loss, it must be shown that certain minimum levels of the combination of the percentage of speech discrimination loss and average pure tone decibel loss are met. The assignment of disability ratings for hearing impairment is derived by a mechanical application of the Rating Schedule to the numeric designations assigned after audiometric evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345 (1992). Hearing loss is rated on the basis of examination results including a controlled speech discrimination test (Maryland CNC), and a pure tone audiometric test of pure tone decibel thresholds at 1000, 2000, 3000, and 4000 Hz with an average pure tone threshold obtained by dividing these thresholds by four. 38 C.F.R. § 4.85. Once these test results have been obtained, employing Table VI, a Roman numeral designation of hearing impairment is ascertained based on a combination of the percent of speech discrimination and pure tone threshold average. Once a Roman numeral designation of auditory acuity level for each ear has been determined, Table VII is used to determine the percentage evaluation for bilateral hearing loss by combining the Roman numeral designations of auditory acuity level for hearing impairment of each ear. Id. There is an alternative method of rating hearing loss in defined instances of exceptional hearing loss. In such exceptional cases, the Roman numeral designation for hearing loss of an ear may be based only on pure tone threshold average, using Table VIA, or from Table VI, whichever results in the higher Roman numeral. Exceptional hearing loss exists when the pure tone threshold at the frequencies of 1000, 2000, 3000, and 4000 Hertz is 55 decibels or more; or where the pure tone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz. In the latter situation, the higher Roman numeral, determined from Table VI or VIA, will then be elevated to the next higher Roman numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86. The United States Court of Appeals for Veterans Claims (Court) held that in addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in his or her final report. Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). The Board must determine whether the weight of the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event. However, if the weight of the evidence is against the Veteran's claim, the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In this case, service connection for bilateral hearing loss was established by a May 2018 rating decision, and the Veteran was assigned a noncompensable disability rating. The Veteran's hearing loss is rated in accordance with 38 C.F.R. § 4.85, Diagnostic Code 6100. At a March 2018 audiology assessment, pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 25 40 55 65 LEFT 25 55 60 65 Adding the threshold levels from 1000-4000 and dividing by four results in an average pure tone threshold of 46 in the right ear and 51 in the left ear. The March 2018 audiologist reported speech discrimination scores of 96 percent in the right ear and 96 percent in the left ear and indicated that the Veteran had excellent speech recognition ability in both ears. Assuming as true that the Maryland CNC speech discrimination test was utilized, under 38 C.F.R. § 4.85 and Table VI, the levels of hearing impairment based on the Veteran's pure tone threshold average and speech discrimination score of both the left and right ears are assigned a numeric designation of Level I for both ears. Combining Level I hearing for both ears according to Table VII yields a rating of 0 percent. The test results above do not indicate an exceptional pattern of hearing loss such that a rating absent speech discrimination scores would be possible. See March 2018 VA treatment records. Accordingly, this examination is not valid for rating purposes. 38 C.F.R. § 4.85. At the Veteran's May 2018 VA audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 25 40 55 65 LEFT 25 55 55 55 Adding the threshold levels from 1000-4000 and dividing by four results in an average pure tone threshold of 46 in the right ear and 48 in the left ear. Using Maryland CNC testing, the May 2018 VA examiner reported speech discrimination scores of 100 percent in the right ear and 100 percent in the left ear and indicated that use of the speech discrimination score was appropriate for the Veteran. 38 C.F.R. § 4.85. Under 38 C.F.R. § 4.85 and Table VI, the levels of hearing impairment based on the Veteran's pure tone threshold average and speech discrimination score of both the left and right ears are assigned a numeric designation of Level I for both ears. Combining Level I hearing for both ears according to Table VII yields a rating of 0 percent. The Board has considered the functional impact of the Veteran's bilateral hearing loss disability. The May 2018 VA examiner noted that the Veteran's hearing loss caused difficulty understanding conversations. See May 2018 VA audiological evaluation. The Veteran is competent to report the symptoms of his hearing disability and the Board has no reason to call into question the credibility of these contentions. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). The Court has specifically held that the schedular criteria for rating hearing loss contemplates the functional effects of difficulty hearing and understanding speech, such as those reported by the Veteran. Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017). In sum, the evidence is against a finding that an initial compensable rating for bilateral hearing loss is warranted. As such, the benefit sought on appeal must be denied. V. Chiappetta Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Fulmer, 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.