Citation Nr: 22010532 Decision Date: 02/24/22 Archive Date: 02/23/22 DOCKET NO. 16-62 191 DATE: February 24, 2022 ORDER Entitlement to a compensable rating for bilateral hearing loss is denied. FINDING OF FACT Throughout the appeal period, the Veteran's service-connected right ear hearing loss has been manifested by hearing acuity of no worse than Level II, and his service-connected left ear hearing loss has been manifested by hearing acuity of no worse than Level III. CONCLUSION OF LAW The criteria for a compensable rating for bilateral hearing loss are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.383, 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 Air Force from March 1968 to May 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2015 rating decision issued by a Department of Veterans Affairs (VA) Agency of Original Jurisdiction. In June 2021, the Veteran testified before the undersigned Veterans Law Judge at a virtual Board hearing. In June 2021, the Board remanded this matter and directed that the Veteran be afforded an updated medical examination as to his service-connected bilateral hearing loss. The Board also directed that the AOJ secure outstanding VA treatment records, to include VA audiograms conducted at the Wilkes-Barre VA Medical Center (VAMC). In addition, the Board directed that the AOJ attempt to secure outstanding private treatment records, to include any records from Williamsport Hearing Services. The Board finds that there has been substantial compliance with the June 2021 Board remand directives. To this end, the AOJ secured recent VA treatment records, including records from the Wilkes-Barre VAMC, and private treatment records from Williamsport Hospital. At hearing, the Veteran clarified that his most recent visits to the Wilkes-Barre VAMC were for hearing aid adjustment only and that no hearing tests were administered. See June 2021 Board Hearing Transcript, at 6. In addition, private treatment records secured from the Williamsport Hospital covered the period from 2015 to 2020 but did not contain any audiological testing results. Thus, no new audiological testing results prior to the June 2021 hearing have been added to the record; however, the latest, October 2021 VA-contracted examiner's medical opinion adequately addressed the Veteran's current level of hearing loss and associated functional impairment. As such, the Board finds that there has been substantial compliance with its prior remand directives. The Veteran asserts that he is entitled to a compensable rating for his bilateral hearing loss. See, September 2015 VA Form 21-526EZ. The appeal period for consideration is from the date of application for a compensable rating, or September 9, 2015, plus the one-year lookback period. Hearing loss is evaluated under the criteria set forth in the VA Schedule for Rating Disabilities. VA disability compensation for impaired hearing is derived from the application in sequence of two tables. See 38 CFR § 4.85, Table VI, Table VII. Table VI correlates the average pure tone sensitivity threshold (derived from the sum of the 1000, 2000, 3000, and 4000-hertz thresholds divided by four) with the ability to discriminate speech, providing a Roman numeral to represent the correlation. Each Roman numeral corresponds to a range of thresholds (in decibels) and of speech discriminations (in percentages). Level I represents essentially normal acuity, and level XI represents profound deafness. The table is applied separately for each ear to derive the values used in Table VII. Table VII prescribes the disability rating based on the relationship between the values for each ear derived from Table VI. See 38 C.F.R. § 4.85, Diagnostic Code 6100. In cases involving exceptional patterns of hearing impairment, defined as where the pure tone sensitivity threshold is equal to or greater than 55 decibels at each of 1000, 2000, 3000, and 4000-hertz or pure tone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, then the veteran's hearing threshold is also applied to Table VIA, which provides a numeric designation of hearing impairment based solely upon pure tone threshold average. For each ear with an exceptional pattern of hearing impairment, the more favorable (i.e., greater) numeric designator from either Table VI or Table VIA is then applied to Table VII. See 38 C.F.R. § 4.86. As an initial matter, the Board finds that August 2015 and May 2018 VA audiological evaluations in the Veteran's treatment records are inadequate for rating purposes. The August 2015 examiner does not specify that the required Maryland CNC speech discrimination test was used, and clarification in this regard is not necessary, as the results would not allow for a compensable rating for bilateral hearing loss. Moreover, the May 2018 examiner notes that another speech test (CID W-22) was used. Thus, the Board must discount both exams. 38 C.F.R. § 4.85(a). However, the October 2015 and October 2021 VA examination reports of record are adequate and provide sufficient information to adjudicate the claim. Of note, in both examinations, the Veteran describes the negative functional impact of his bilateral hearing loss, including difficulty hearing conversations without hearing aids, turning the television up louder than needed, frequently having to position himself to read lips, difficulties talking on a cellular phone, and often asking others to repeat themselves in conversation. The Veteran's speech recognition score and pure tone thresholds, in decibels, were as follows during his October 2015 VA audiological examination: OCT 2015 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 35 50 65 75 56.25 90% LEFT 35 50 60 70 53.75 88% Applying the results to Table VI, the findings yield a numeric designation of Level II in the right ear and Level II in the left ear. Entering the resulting bilateral numeric designation of Level II for the right ear and Level II for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a 0 percent disability rating under Diagnostic Code 6100. The Veteran's speech recognition score and pure tone thresholds, in decibels, were as follows during his October 2021 VA audiological examination: OCT 2021 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 40 60 80 80 65 96% LEFT 40 55 70 75 60 84% Applying the October 2021 results to Table VI, the findings yield a numeric designation of Level II in the right ear and Level III in the left ear. Entering the resulting bilateral numeric designation of Level II for the right ear and Level III for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a 0 percent disability rating under Diagnostic Code 6100. Finally, an exceptional pattern of hearing loss is not shown during either examination, (pure tone sensitivity threshold is equal to or greater than 55 decibels at each of 1000, 2000, 3000, and 4000-hertz or pure tone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz), precluding application of Table VIA to rate the Veteran's bilateral hearing loss. The Board further observes that review of the Veteran's records for the period in question reveal no other audiometric test results, or any other evidence supporting a compensable rating for bilateral hearing loss. The Board expressly acknowledges its consideration of the functional impact of the Veteran's hearing loss. He 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 reduced hearing acuity and clarity, which is what is contemplated in the rating assigned. See Rossy v. Shulkin, 29 Vet. App. 142, 145 (2017). Accordingly, as the totality of the competent evidence weighs against the claim, the benefit-of-the-doubt rule is inapplicable and the claim must be denied. See 38 U.S.C. § 5107(b); Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021); 38 C.F.R. § 3.102. S. BUSH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Saumur, 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.