Citation Nr: 22010563 Decision Date: 02/24/22 Archive Date: 02/24/22 DOCKET NO. 16-51 002 DATE: February 24, 2022 ORDER A compensable rating for bilateral hearing loss is denied. FINDING OF FACT The Veteran's bilateral hearing loss is not shown to have been manifested by auditory acuity worse than level I in the right ear and level I in the left ear, and when applied to Table VI and Table VII of the VA Rating Schedule, these levels result in a noncompensable rating. CONCLUSION OF LAW The criteria have not been met for a compensable rating for bilateral hearing loss. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.85-4.87, Diagnostic Code 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from December 1982 to January 1989, August 1989 to November 1989, May 1990 to May 1991, and July 1991 to December 1991, to include service in Southwest Asia. This case is before the Board of Veterans' Appeals (Board) on appeal from a December 2013 Department of Veterans Affairs (VA) rating decision. In connection with this appeal, the Veteran testified at a hearing before the undersigned Veterans Law Judge in July 2020. A transcript of that hearing is of record. In February 2021, the matter was remanded for additional development. Additional evidence has been received following the March 2021 supplemental statement of the case, that is not accompanied by a waiver of agency of original jurisdiction (AOJ) review. However, the Board has determined that this evidence does not contain any reports about or treatment for the Veteran's bilateral hearing loss, and as such, is not "pertinent" as defined at 38 C.F.R. § 20.1305(c). Accordingly, a remand for AOJ consideration is not required. Increased Rating Legal Criteria Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Reasonable doubt regarding degree of disability is to be resolved in favor of the claimant. 38 C.F.R. § 4.3. Disability ratings for hearing loss 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). Hearing loss disability evaluations range from 0 to 100 percent based on organic impairment of hearing acuity, as measured by controlled speech discrimination tests (Maryland CNC) in conjunction with the average hearing threshold, as measured by puretone audiometric tests in the frequencies 1000, 2000, 3000 and 4000 cycles per second. The rating schedule establishes eleven auditory acuity levels designated from Level I for essentially normal hearing acuity, through Level XI for profound deafness. VA audiometric examinations are conducted using a controlled speech discrimination test together with the results of a puretone audiometric test. The horizontal lines in Table VI (in 38 C.F.R. § 4.85) represent nine categories of the percentage of discrimination based on the controlled speech discrimination test. The vertical columns in Table VI represent nine categories of decibel loss based on the puretone audiometric test. The numeric designation of impaired hearing (Levels I through XI) is determined for each ear by intersecting the horizontal row appropriate for the percentage of discrimination and the vertical column appropriate to the puretone decibel loss. Table VIA (in 38 C.F.R. § 4.85) is used when speech discrimination tests are inappropriate due to language difficulties, inconsistent speech discrimination scores, etc., or where there is an exceptional pattern of hearing loss (as defined in 38 C.F.R. § 4.86). One such pattern occurs when puretone thresholds at each of the four specified frequencies is 55 decibels or more. The percentage evaluation is derived from Table VII (in 38 C.F.R. § 4.85) by intersecting the horizontal row appropriate for the numeric designation for the ear having the better hearing acuity with the appropriate vertical column for the hearing acuity level for the ear with the poorer hearing acuity. See 38 C.F.R. § 4.85(e). Factual Background The Veteran asserted that he was entitled to a compensable rating for his bilateral hearing loss. The Veteran's medical records show that he receives treatment for his bilateral hearing loss. He underwent an audiogram in June 2018. However, his medical records do not contain the results of puretone audiometric tests (which are required to rate service-connected hearing loss). Therefore, VA provided the Veteran with audiological examinations to decide this claim fairly and accurately. At an October 2013 VA audiological examination, audiometry showed a puretone threshold average of 21 decibels with a speech discrimination of 96 percent in the right ear and a puretone threshold average of 21 decibels with a speech discrimination of 94 percent in the left ear. The examiner indicated that the use of speech discrimination scores was appropriate. At the July 2020 Board hearing, the Veteran testified that his bilateral hearing loss had worsened. Accordingly, in February 2021, the Board remanded the claim for further development, to include affording the Veteran a new VA examination. At a March 2021 VA audiological examination, audiometry showed a puretone threshold average of 33 decibels with a speech discrimination of 96 percent in the right ear and a puretone threshold average of 46 decibels with a speech discrimination of 92 percent in the left ear. The examiner indicated that the use of speech discrimination scores was appropriate Analysis The Veteran's average decibel loss and speech recognition score at the October 2013 VA audiological examination equates, using Table VI, to a Level I in the right ear and to a Level I in the left ear. When these results are combined on Table VII, the results from the October 2013 VA audiological examination result in a noncompensable rating. Likewise, the Veteran's average decibel loss and speech recognition score at the March 2021 VA audiological examination equates, using Table VI, to a Level I in the right ear and to a Level I in the left ear. When these results are combined on Table VII, the results from the March 2021 VA audiological examination result in a noncompensable rating. Additionally, Table VIA would not be applicable, because the puretone threshold was neither 55 decibels at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz), nor 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hz for either ear at either of the VA examinations. Moreover, there was no indication by the VA audiologists that the speech recognition scores were not appropriate. The Board has carefully considered the Veteran's lay statements describing hearing difficulties; the Veteran is competent (that is, medically qualified) to report observable symptoms and the Board does not question the Veteran's credibility. However, the Veteran is not qualified to assess, by observation, how those observable symptoms apply to the VA Rating Schedule because this is a medical determination that, by law, must be based on the results of the diagnostic (audiological) testing. See Moray v. Brown, 2 Vet. App. 211, 214 (1993). The rating for hearing impairment is derived by the mechanical application of the Rating Schedule to the numeric designations assigned based on objective audiometric test results. Id. The Board does not question the Veteran's reports (either their credibility or their competence) about his observable symptoms and about the fact that his bilateral hearing loss results in the reported functional limitations, such as difficulty hearing. However, these limitations are contemplated by the criteria for the noncompensable rating that is already assigned. The Board understands that VA's disability rating system for hearing loss can be confusing because the hearing loss rating system includes a noncompensable (zero percent) level and the noncompensable rating is assigned even when a veteran has observable levels of hearing loss. The Board urges the Veteran to continue to monitor and assess his hearing loss and, if it worsens, to submit a new claim for an increased disability level at that time. However, the criteria for a compensable rating are not currently met, and the claim must be denied at this time. VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Berryman, 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.