Citation Nr: AXXXXXXXX Decision Date: 06/30/20 Archive Date: 06/30/20
DOCKET NO. 191121-44718 DATE: June 30, 2020
ORDER
Entitlement to a compensable disability rating for sensorineural hearing loss of the left ear is denied.
FINDING OF FACT
The Veteran has demonstrated hearing acuity of Level IX in the left ear, and hearing acuity of Level I is imputed for his nonservice-connected right ear.
CONCLUSION OF LAW
The criteria for entitlement to a compensable disability rating for hearing loss of the left ear have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.321, 3.385, 4.85, 4.86, Tables VI and VII, Diagnostic Code (DC) 6100 (2019).
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran served on active duty with the U.S. Air Force from April 1969 to March 1973.
This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2019 rating decision.
On August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (to be codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA). This law creates a new framework for veterans dissatisfied with VA’s decision on their claim to seek review. This decision has been written consistent with the new AMA framework. The Veteran has selected the Direct Review process.
The Veteran contends that his service-connected left ear hearing loss is more disabling than contemplated by the current noncompensable evaluation. Specifically, the Veteran states that his left ear hearing loss has gotten much worse since the grant of service connection in 2006.
This is the only issue on appeal.
The Veteran’s left ear hearing loss is currently assigned a noncompensable evaluation pursuant to 38 C.F.R. § 4.85, Diagnostic Code 6100 (2017). The rating schedule for hearing loss provides that evaluations of hearing loss range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests together with average hearing threshold levels as measured by pure tone audiometry tests in the frequencies 1000, 2000, 3000 and 4000 cycles per second (Hertz). To evaluate the degree of disability from defective hearing, the rating schedule established eleven auditory acuity levels designated from Level I for essentially normal acuity through Level XI for profound deafness. Id.
There are also exceptional patterns of hearing impairment for when pure tone thresholds at the 1000, 2000, 3000, and 4000 Hertz frequencies are 55 decibels or more. See 38 C.F.R. § 4.86. Under 38 C.F.R. § 4.86, each ear is to be evaluated separately to determine if an exceptional pattern of hearing impairment exists. Id. When an exceptional pattern of hearing loss exists, the Board is to evaluate hearing based on pure tone threshold alone if doing so would benefit the Veteran. Id.
In considering the evidence of record under the laws and regulations set forth above, the Board concludes that the Veteran is not entitled to a compensable evaluation for left ear hearing loss. In this case, the rules for unilateral hearing loss and exceptional patterns of hearing apply. See 38 C.F.R. § 4.85(f) (2017).
A September 2019 VA examination reveals that the Veteran did not report any functional impact for his hearing loss. 38 C.F.R. § 4.10; Martinak v. Nicholson, 21 Vet. App. 447 (2007). The Veteran’s Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows:
09/26/2019 HERTZ
1000 2000 3000 4000 Avg CNC
RIGHT 20 20 30 30 25 I
LEFT 60 95 105 105 91 IX
A speech discrimination score could not be provided for the Veteran’s left ear. In an October 2019 VA Addendum, the examiner clarified that a word discrimination score is not available for the Veteran’s left ear. The Veteran did not make an effort to guess any words at 90 or 95 decibels. Furthermore, the Veteran was instructed again, and words were presented at two different levels.
For the Veteran’s left ear, the average puretone decibel loss falls between 91 and 97 and the resulting numeric designation from Table VIA is IX. Pursuant to 38 C.F.R. § 4.85(f) (2017), the Veteran’s non-service-connected right ear is assigned a Roman numeral designation for hearing impairment of I.
Table VII must then be consulted for assignment of a percentage evaluation and assignment of a diagnostic code. With a numeric designation of I for the right ear on the axis for the better ear and a numeric designation of IX for the left ear on the axis for the poorer ear, the point of intersection on Table VII requires assignment of a noncompensable percent rating under Diagnostic Code 6100. See 38 C.F.R. § 4.85(h) (2017).
An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was shown in the Veteran’s left ear. Applying the results to Table VIA yields Level I in the right ear and Level IX in the left ear. Entering the resulting bilateral numeric designation of Level I for the right ear and Level IX for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a noncompensable percent disability rating under Diagnostic Code 6100. Here, Table VIA yields the highest rating.
A May 2013 VA examination reveals that the Veteran reported a functional impact for his hearing loss because it impacted his ordinary conditions of daily life, including the ability to work. The Veteran’s Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows:
05/14/2013 HERTZ
RIGHT 10 15 20 15 15 I
LEFT 50 90 90 90 80 VII
A speech discrimination score of 100 percent was reported for the right ear and 60 percent for the left ear. The examiner noted that the use of a speech discrimination score is appropriate for the Veteran.
In this case, the rule for unilateral hearing loss applies, see 38 C.F.R. § 4.85(f) (2017), but, the rule for exceptional patterns of hearing impairment does not apply because the Veteran does not reach 55 decibels at 1000 Hertz. See 38 C.F.R. § 4.86 (2017).
For the Veteran’s left ear, by intersecting the average puretone decibel loss falling between 74 and 81 with the percent speech discrimination from 60 to 66, the resulting numeric designation from Table VI is VII. Pursuant to 38 C.F.R. § 4
Free access — add to your briefcase to read the full text and ask questions with AI
Citation Nr: AXXXXXXXX Decision Date: 06/30/20 Archive Date: 06/30/20
DOCKET NO. 191121-44718 DATE: June 30, 2020
ORDER
Entitlement to a compensable disability rating for sensorineural hearing loss of the left ear is denied.
FINDING OF FACT
The Veteran has demonstrated hearing acuity of Level IX in the left ear, and hearing acuity of Level I is imputed for his nonservice-connected right ear.
CONCLUSION OF LAW
The criteria for entitlement to a compensable disability rating for hearing loss of the left ear have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.321, 3.385, 4.85, 4.86, Tables VI and VII, Diagnostic Code (DC) 6100 (2019).
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran served on active duty with the U.S. Air Force from April 1969 to March 1973.
This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2019 rating decision.
On August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (to be codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA). This law creates a new framework for veterans dissatisfied with VA’s decision on their claim to seek review. This decision has been written consistent with the new AMA framework. The Veteran has selected the Direct Review process.
The Veteran contends that his service-connected left ear hearing loss is more disabling than contemplated by the current noncompensable evaluation. Specifically, the Veteran states that his left ear hearing loss has gotten much worse since the grant of service connection in 2006.
This is the only issue on appeal.
The Veteran’s left ear hearing loss is currently assigned a noncompensable evaluation pursuant to 38 C.F.R. § 4.85, Diagnostic Code 6100 (2017). The rating schedule for hearing loss provides that evaluations of hearing loss range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests together with average hearing threshold levels as measured by pure tone audiometry tests in the frequencies 1000, 2000, 3000 and 4000 cycles per second (Hertz). To evaluate the degree of disability from defective hearing, the rating schedule established eleven auditory acuity levels designated from Level I for essentially normal acuity through Level XI for profound deafness. Id.
There are also exceptional patterns of hearing impairment for when pure tone thresholds at the 1000, 2000, 3000, and 4000 Hertz frequencies are 55 decibels or more. See 38 C.F.R. § 4.86. Under 38 C.F.R. § 4.86, each ear is to be evaluated separately to determine if an exceptional pattern of hearing impairment exists. Id. When an exceptional pattern of hearing loss exists, the Board is to evaluate hearing based on pure tone threshold alone if doing so would benefit the Veteran. Id.
In considering the evidence of record under the laws and regulations set forth above, the Board concludes that the Veteran is not entitled to a compensable evaluation for left ear hearing loss. In this case, the rules for unilateral hearing loss and exceptional patterns of hearing apply. See 38 C.F.R. § 4.85(f) (2017).
A September 2019 VA examination reveals that the Veteran did not report any functional impact for his hearing loss. 38 C.F.R. § 4.10; Martinak v. Nicholson, 21 Vet. App. 447 (2007). The Veteran’s Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows:
09/26/2019 HERTZ
1000 2000 3000 4000 Avg CNC
RIGHT 20 20 30 30 25 I
LEFT 60 95 105 105 91 IX
A speech discrimination score could not be provided for the Veteran’s left ear. In an October 2019 VA Addendum, the examiner clarified that a word discrimination score is not available for the Veteran’s left ear. The Veteran did not make an effort to guess any words at 90 or 95 decibels. Furthermore, the Veteran was instructed again, and words were presented at two different levels.
For the Veteran’s left ear, the average puretone decibel loss falls between 91 and 97 and the resulting numeric designation from Table VIA is IX. Pursuant to 38 C.F.R. § 4.85(f) (2017), the Veteran’s non-service-connected right ear is assigned a Roman numeral designation for hearing impairment of I.
Table VII must then be consulted for assignment of a percentage evaluation and assignment of a diagnostic code. With a numeric designation of I for the right ear on the axis for the better ear and a numeric designation of IX for the left ear on the axis for the poorer ear, the point of intersection on Table VII requires assignment of a noncompensable percent rating under Diagnostic Code 6100. See 38 C.F.R. § 4.85(h) (2017).
An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was shown in the Veteran’s left ear. Applying the results to Table VIA yields Level I in the right ear and Level IX in the left ear. Entering the resulting bilateral numeric designation of Level I for the right ear and Level IX for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a noncompensable percent disability rating under Diagnostic Code 6100. Here, Table VIA yields the highest rating.
A May 2013 VA examination reveals that the Veteran reported a functional impact for his hearing loss because it impacted his ordinary conditions of daily life, including the ability to work. The Veteran’s Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows:
05/14/2013 HERTZ
RIGHT 10 15 20 15 15 I
LEFT 50 90 90 90 80 VII
A speech discrimination score of 100 percent was reported for the right ear and 60 percent for the left ear. The examiner noted that the use of a speech discrimination score is appropriate for the Veteran.
In this case, the rule for unilateral hearing loss applies, see 38 C.F.R. § 4.85(f) (2017), but, the rule for exceptional patterns of hearing impairment does not apply because the Veteran does not reach 55 decibels at 1000 Hertz. See 38 C.F.R. § 4.86 (2017).
For the Veteran’s left ear, by intersecting the average puretone decibel loss falling between 74 and 81 with the percent speech discrimination from 60 to 66, the resulting numeric designation from Table VI is VII. Pursuant to 38 C.F.R. § 4.85(f) (2017), the Veteran’s non-service-connected right ear is assigned a Roman numeral designation for hearing impairment of I.
Table VII must then be consulted for assignment of a percentage evaluation and assignment of a diagnostic code. With a numeric designation of I for the right ear on the axis for the better ear and a numeric designation of VII for the left ear on the axis for the poorer ear, the point of intersection on Table VII requires assignment of a noncompensable percent rating under Diagnostic Code 6100. See 38 C.F.R. § 4.85(h) (2017).
Based on the evidence above, a compensable rating for the Veteran’s left ear hearing loss is not warranted.
Accordingly, the preponderance of the most probative evidence is against the claim of entitlement to a compensable rating for left ear hearing loss. In reaching the conclusion above, the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran’s claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
John J. Crowley
Veterans Law Judge
Board of Veterans’ Appeals
Attorney for the Board Laura Cochran, 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.