Citation Nr: 22014405 Decision Date: 03/12/22 Archive Date: 03/12/22 DOCKET NO. 17-18 825 DATE: March 12, 2022 ORDER A compensable rating for bilateral hearing loss is denied. FINDING OF FACT The Veteran's hearing loss has manifested by no worse than Level II hearing loss in the right ear and Level I hearing loss in the left ear. CONCLUSION OF LAW The criteria for a compensable rating for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.85 Diagnostic Code (DC) 6100, 4.86. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Air Force from October 1985 to February 1986 and from September 2001 to March 2003, with additional reserve service. These matters come before the Board of Veterans' Appeals (Board) from an August 2013 rating decision. The Veteran testified before the Board at a hearing in July 2021. A transcript of the hearing has been associated with the claims file. In October 2021, the Board remanded the Veteran's claim to afford a new VA examination regarding the severity of his bilateral hearing loss. The appeal has since been returned to Board for review. For the reasons indicated in the discussion below, the agency of original jurisdiction (AOJ) complied with the Board's remand instructions. Stegall v. West, 11 Vet. App. 268 (1998). Increased Ratings Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Although the Board typically considers only those factors contained wholly in the rating criteria, it is appropriate to consider factors outside the specific rating criteria when appropriate in order to best determine the level of occupational and social impairment. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating. 38 C.F.R. § 4.7. When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Hearing Loss In this case, the Veteran's bilateral hearing loss has been assigned a noncompensable rating under 38 C.F.R. § 4.85, DC 6100. Assignment of a disability rating for hearing loss is derived by a mechanical application of the rating schedule to the specific numeric designations assigned after audiology testing is completed. Lendenmann v. Principi, 3 Vet. App. 345 (1992). Ratings for hearing loss, which range from noncompensable to 100 percent, are based on an organic impairment of hearing acuity as demonstrated by the results of speech discrimination tests together with the average hearing threshold levels as measured by puretone audiometry tests in the frequencies of 1,000, 2,000, 3,000, and 4,000 Hertz (Hz). The degree of disability from service-connected hearing loss is rated based on 11 auditory acuity levels with Level I, representing essentially normal acuity, through Level XI, representing profound deafness. 38 C.F.R. § 4.85. Additionally, the schedule considers the effect of the Veteran's hearing loss disability on occupational functioning and daily activities. Martinak v. Nicholson, 21 Vet. App. 447 (2007). An alternative rating method may be used when the puretone threshold at each of the four specified frequencies (1,000, 2,000, 3,000, and 4,000 Hertz) is 55 decibels (dB) or more, or when the pure tone threshold is 30 dB or less at 1,000 Hz and 70 dB or more at 2,000 Hz. 38 C.F.R. § 4.86. VA will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa based on whichever results in the higher numeral. Id. In hearing loss rating cases, an examination for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a puretone audiometry test. Examinations are conducted without the use of hearing aids. 38 C.F.R. § 4.85(a). After a review of the evidence of record, the Board finds that a compensable rating for bilateral hearing loss is not warranted. In July 2013, the Veteran underwent a VA examination regarding bilateral hearing loss. The Veteran reported that his hearing loss causes him to ask people to repeat things and to turn the television to a higher volume. The speech audiometry test revealed a speech recognition ability of 100 percent in the bilateral ears. On the audiological evaluation, his puretone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average Hz (B-E) RIGHT 20 15 50 50 34 LEFT 15 15 35 40 26 Under 38 C.F.R. § 4.85, applying these values to Table VI, the Veteran exhibits Level I hearing loss in the right ear and Level I hearing loss in the left ear. Therefore, when applying these levels to Table VII, a compensable rating is not warranted. Further, as exceptional patterns of hearing impairment are not shown, the Veteran's hearing loss cannot be evaluated based solely on the average decibel loss under 38 C.F.R. § 4.86. In June 2016, the Veteran underwent a second VA examination regarding bilateral hearing loss. The Veteran reported that he has difficulty hearing conversations on the phone and in person. The speech audiometry test revealed a speech recognition ability of 96 percent in the bilateral ears. The examiner attempted to administer a hearing test evaluating the Veteran's puretone thresholds in decibels; however, the examiner concluded that the Veteran could not be tested as the speech reception thresholds were not in good agreement with puretones. The Board finds that as the examiner determined that the test results were not valid for rating purposes, the findings of the June 2016 VA examination are inadequate and therefore lack probative value. In December 2021, the Veteran underwent a third VA examination regarding bilateral hearing loss. The Veteran reported that communication is difficult and that he must pay greater attention to conversations and read lips. The speech audiometry test revealed a speech recognition ability of 94 percent in the bilateral ears. On the audiological evaluation, his puretone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average Hz (B-E) RIGHT 25 30 60 65 45 LEFT 25 40 60 60 46 Under 38 C.F.R. § 4.85, applying these values to Table VI, the Veteran exhibits Level I hearing loss in the right ear and Level I hearing loss in the left ear. Therefore, when applying these levels to Table VII, a compensable rating is not warranted. Further, as the puretone threshold at each of the four specified frequencies is not 55 dB or greater, the Veteran's hearing loss cannot be evaluated based solely on the average decibel loss under 38 C.F.R. § 4.86. Likewise, an exceptional pattern of hearing impairment was not shown. Additionally, the Veteran's VA treatment records indicate complaints, treatment, and testing regarding hearing loss. Although most of the VA treatment records do not indicate the testing and findings necessary to assign a disability rating, the Veteran was provided a comprehensive audiological evaluation in July 2016 with the necessary testing for rating assignment purposes. During the July 2016 audiology visit, the speech audiometry test revealed a speech recognition ability of 96 percent in the bilateral ears. On the audiological evaluation, his puretone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average Hz (B-E) RIGHT 40 65 65 65 59 LEFT 40 60 65 50 54 Under 38 C.F.R. § 4.85, applying these values to Table VI, the Veteran exhibits Level II hearing loss in the right ear and Level I hearing loss in the left ear. Therefore, when applying these levels to Table VII, a compensable rating is not warranted. Further, as the puretone threshold at each of the four specified frequencies is not 55 dB or greater, the Veteran's hearing loss cannot be evaluated based solely on the average decibel loss under 38 C.F.R. § 4.86. Likewise, an exceptional pattern of hearing impairment was not shown. Regarding the Veteran's lay statements, in the July 2021 Board hearing, the Veteran asserted that his hearing loss had substantially worsened since the June 2016 VA examination. In the February 2022 appellate brief, the Veteran and his representative continued to assert that a compensable rating is warranted as a hearing test does not adequately portray the severity of his condition. It is the Veteran's contention that as the hearing test was held in the sterile quiet of an audiology booth, it does not adequately reflect the severity of his hearing loss during the conditions of daily life. The Board notes that VA's policy of conducting audiometric testing in a sound-controlled room has been upheld, which is designed to obtain the necessary information for the full and accurate application of the hearing loss rating schedule. Martinak v. Nicholson, 21 Vet. App. 447, 454 (2007). Moreover, VA's audiometric tests are specifically designed to measure the functional effects of decreased hearing and difficulty understanding speech in an everyday work environment. Thus, the Board finds that the Veteran's hearing loss during the conditions of daily life was sufficiently measured during the Veteran's July 2013, July 2016, and December 2021 VA audiological evaluations. 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). Additionally, the Board notes that the Veteran is competent to report increasing 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). Accordingly, the Board finds that the evidence persuasively weighs against the claim for a compensable rating for bilateral hearing loss. The appeal is denied. MICHAEL E. KILCOYNE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Page-Nelson, 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.