Citation Nr: 22014496 Decision Date: 03/14/22 Archive Date: 03/14/22 DOCKET NO. 19-29 136 DATE: March 14, 2022 ORDER A compensable rating for hearing loss of the left ear is denied. FINDINGS OF FACT 1. Prior to October 15, 2015, a hearing loss disability for VA purposes had not been manifested. 2. Throughout the appeal period, as of October 15, 2015, the Veteran's hearing loss of the left ear has been no worse than Level II. CONCLUSION OF LAW The criteria for a compensable disability rating for hearing loss of the left ear have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.3, 4.7, 4.85, Diagnostic Code 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSION This matter initially comes before the Board of Veterans Appeals' (Board) on appeal from a June 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In an August 2017 rating decision, the RO granted service connection for hearing loss of the left ear, assigning a noncompensable rating, effective October 15, 2015, the date the record illustrated a hearing loss disability in accordance with VA regulations. The Board remanded the matter in December 2020, to afford the Veteran an additional audiological examination and to associate a 2019 audio medical report with the file. The Board finds that the remand directives have been substantially complied with and therefore will proceed with the appeal. Stegall v. West, 11 Vet. App. 268. The Veteran and his wife testified before the undersigned Veterans Law Judge in a December 2020 virtual hearing. The Veteran contends that his service-connected hearing loss of his left ear warrants a compensable rating. He testified how his hearing impacts his life. The Veteran's wife and daughter authored statements describing how impactful his hearing loss is on their daily lives. He often must ask people to repeat themselves, even when in close proximity, so much so that his daughter at times will use texting as the form of communication. For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Ratings of hearing loss range from noncompensable 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, Diagnostic Code 6100, Table VI. In order to establish entitlement to an increased 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, 349 (1992). The criteria for rating hearing impairment use controlled speech discrimination tests (Maryland CNC) together with the results of pure tone audiometry tests. These results are then charted on Table VI, Table VIA in exceptional cases as described in 38 C.F.R. § 4.86, and Table VII, as set out in the Rating Schedule. 38 C.F.R. § 4.85. An exceptional pattern of hearing loss occurs when the pure tone threshold at 1000, 2000, 3000, and 4000 Hertz is 55 decibels or more, or when the pure tone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz. 38 C.F.R. § 4.86. Specifically, when the pure tone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz, the Roman numeral designation for hearing impairment for hearing impairment is determined from either Table VI or Table VIA, whichever results in the higher numerical. 38 C.F.R. § 4.86(b). That numeral will then be elevated to the next higher Roman numeral, and then each ear will be evaluated separately. Id. When hearing loss is service connected in only one ear, the non-service-connected ear will be assigned a Roman numeral designation of I. 38 C.F.R. §§ 3.383, 4.85(f). The Board finds that the claim for a compensable rating must be denied as the audiograms of record only support the currently assigned noncompensable rating for the Veteran's hearing loss of the left ear. The Veteran has been afforded four VA examinations during the appeal period and those results will be illustrated below. The Veteran was afforded a VA audiological examination in June 2014, during which puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 AVG LEFT 10 15 20 35 30 25 Maryland CNC speech discrimination testing showed recognition of 96 percent in the left ear. His average threshold was 25 Hertz. This valid audiological examination did not reveal auditory thresholds of 40 decibels or greater at any of the prescribed auditory thresholds or speech recognition scores of less than 94 percent in the left ear. Likewise, this examination did not show at least three auditory thresholds of 26 decibels or greater. Accordingly, a hearing loss disability under 38 C.F.R. § 3.385 is not indicated. The Veteran was afforded a VA audiological examination in October 2015, during which puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 AVG LEFT 15 20 35 40 30 31 Maryland CNC speech discrimination testing showed recognition of 94 percent in the left ear. His average threshold was 31 Hertz. Applying these values to Table VI, the result is Level I for the left ear and Level I for the non-service-connected right ear, which combines to a noncompensable rating under 38 C.F.R. § 4.85, Table VII. No exceptional patterns of hearing impairment apply. Additionally, the examiner is listed as an audiologist, as required for rating purposes. See 38 C.F.R. § 4.85(a). As such, this audiogram is adequate for VA purposes and holds probative value. Id. Accordingly, a compensable rating for hearing loss is not warranted based on these audiological findings. The Veteran was afforded a VA audiological examination in June 2017, during which puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 AVG LEFT 20 20 35 40 30 31.25 Maryland CNC speech discrimination testing showed recognition of 84 percent in the left ear. His average threshold was 31.25 Hertz. Applying these values to Table VI, the result is Level II for the left ear and Level I for the non-service-connected right ear, which combines to a noncompensable rating under 38 C.F.R. § 4.85, Table VII. No exceptional patterns of hearing impairment apply. Additionally, the examiner is listed as an audiologist, as required for rating purposes. See 38 C.F.R. § 4.85(a). As such, this audiogram is adequate for VA purposes and holds probative value. Id. Accordingly, a compensable rating for hearing loss is not warranted based on these audiological findings. The Veteran was afforded a VA audiological examination in March 2021, during which puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 AVG LEFT 25 35 40 45 40 40 Maryland CNC speech discrimination testing showed recognition of 86 percent in the left ear. His average threshold was 40 Hertz. Applying these values to Table VI, the result is Level II for the left ear and Level I for the non-service-connected right ear, which combines to a noncompensable rating under 38 C.F.R. § 4.85, Table VII. No exceptional patterns of hearing impairment apply. Additionally, the examiner is listed as an audiologist, as required for rating purposes. See 38 C.F.R. § 4.85(a). As such, this audiogram is adequate for VA purposes and holds probative value. Id. Accordingly, a compensable rating for hearing loss is not warranted based on these audiological findings. The Board is charged with assessing whether a compensable rating for hearing loss of the left ear is warranted anytime during the appeal period (i.e., as of October 2013). As reflected above, the March 2021 audiogram, along with the other audiograms of record all show readings consistent with a noncompensable rating. Of note, not only do the readings from the June 2014 audiogram not reflect compensable ratings, but it does not reflect a disability for VA purposes. The Board recognizes that there are VA and private medical records of evidence dated November 2014, March 2015, August 2017, and two separate audiograms both dated August 2019 that show audiological evaluations were performed. However, some of the records have puretone thresholds that reflect numbers related to bone induction and not air induction, and the speech discrimination scores do not appear to be based on the Maryland CNC test on any of these records. As such, these results are not helpful in assessing the level of severity of the Veteran's hearing loss of the left ear and will not be used when assessing the level of severity. The Board also recognizes that an Ear Conditions Disability Benefits Questionnaire was performed in October 2019. However, this examination focused on the Veteran's ear infections and an audiological evaluation was not performed. Although the Board is sympathetic to the impact the Veteran's hearing loss has on his daily life and his belief that his hearing loss warrants a compensable rating, rating a hearing loss disability involves the mechanical application of rating criteria to the results of specified audiometric studies. A compensable rating is not warranted. The claim must be denied. H.M. WALKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Talamantes, 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.