HEARING LOSS

D. SMART · 2026 · Case ID: A26040689

MIXED

Summary

The Veteran served from September 1969 to June 1973. The Veteran appeals the denial of an increased rating for bilateral hearing loss, seeking a rating in excess of 10 percent. The Board reviewed the evidence of record from the July 2023 AOJ decision and subsequent higher-level review, as well as evidence submitted at the January 2026 Board hearing. The Board noted that evidence submitted after the hearing or outside the allowed 90-day window could not be considered for the hearing loss claim but would be considered for remanded claims. The December 2022 VA examination showed the Veteran's hearing loss resulted in a Level IV designation bilaterally, which equates to a 10 percent disability rating under Diagnostic Code 6100. The Board found the evidence persuasively weighed against a rating higher than 10 percent, noting that the Veteran's subjective complaints were contemplated by the rating schedule but did not meet the criteria for an exceptional pattern of hearing impairment or a higher rating. The Board denied the claim for an increased rating for bilateral hearing loss. The case also involves remanded claims for vertigo and obstructive sleep apnea (OSA). The remands are for the AOJ to obtain addendum opinions addressing whether the Veteran's hearing loss or tinnitus aggravated vertigo and OSA, whether acoustic trauma caused the vertigo, and whether the Veteran's service-connected hypertension caused or aggravated the OSA.

Rationale

Audiometric testing showed Level IV designation bilaterally.; Level IV designation equates to 10 percent disability rating under DC 6100.; Evidence did not support exceptional pattern of hearing impairment or higher rating.

Special Benefit

NO SPECIAL BENEFIT

Diagnostic Code

6100

Docket No.

231127-395108

Full Decision Text

Citation Nr: A26040689
Decision Date: 04/30/26 Archive Date: 04/30/26

DOCKET NO. 231127-395108
DATE: April 30, 2026

ORDER

Entitlement to a disability rating in excess of 10 percent for bilateral hearing loss is denied.

REMANDED

Entitlement to service connection for vertigo is remanded.

Entitlement to service connection for obstructive sleep apnea (OSA) is remanded.

FINDING OF FACT

During the period on appeal, the Veteran's hearing loss manifested with no greater than Level IV hearing bilaterally and no worse than 80 percent speech recognition scores.

CONCLUSION OF LAW

The criteria for entitlement to a disability rating in excess of 10 percent for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran had active-duty service from September 1969 to June 1973.

The issues are on appeal from a higher-level review (HLR) rating decision issued in November 2023. The Veteran submitted a notice of disagreement in November 2023 electing the hearing lane.

The Veteran testified at a Board hearing in January 2026. A transcript of that hearing has been associated with the claims file.

Therefore, the Board may only consider the evidence of record at the time of the July 2023 agency of original jurisdiction (AOJ) decision, which was subsequently subject to higher-level review, as well as any evidence submitted by the Veteran or their representative at the hearing or within 90 days following the hearing. 38 C.F.R. § 20.302(a). If evidence was submitted either (1) during the period after the AOJ issued the decision, which was subsequently subject to higher-level review and prior to the Board hearing, or (2) more than 90 days following the hearing, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.302(a), 20.801.

Evidence was added to the claims file during a period of time when new evidence was not allowed. As the Board is deciding the claim of entitlement to a disability rating in excess of 10 percent for bilateral hearing loss, it may not consider this evidence in its decision. 38 C.F.R. § 20.300. Although the Veteran's representative referred to some of this evidence in the Board hearing, they did not re-submit any evidence in the 90 days following the January 2026 hearing. Therefore, to have the evidence considered, the Veteran may file a Supplemental Claim and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision.

However, because the Board is remanding the claims of entitlement to service connection for OSA and vertigo, any evidence the Board could not consider will be considered by the AOJ in the adjudication of those claims. 38 C.F.R. § 3.103(c)(2)(ii)

Entitlement to a disability rating in excess of 10 percent for bilateral hearing loss.

The Veteran is seeking a higher rating for his bilateral hearing loss.

Evaluations of defective hearing range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of a controlled Maryland CNC speech discrimination test together with the average hearing threshold level measured by pure tone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hertz). 38 C.F.R. § 4.85, Diagnostic Code 6100.

To evaluate the degree of disability from bilateral service-connected hearing loss, the schedule establishes 11 auditory hearing acuity levels designated from Level I for essentially normal hearing acuity through Level XI for profound deafness. 38 C.F.R. § 4.85, Tables VI and VII.

An exceptional pattern of hearing impairment occurs when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more. 38 C.F.R. § 4.86(a). In that situation, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral. Further, when the average pure tone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral, and that numeral will then be elevated to the next higher numeral. 38 C.F.R. § 4.86(b).

During the period on appeal, the Veteran underwent only one audiometric testing session. A December 2022 VA examination reveals that the Veteran reported difficulty hearing soft spoken voices, requesting people repeat themselves frequently, and turning his television volume up. 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:

HERTZ

1000 2000 3000 4000 Avg CNC

RIGHT 40 60 70 70 60 80%

LEFT 50 70 80 75 69 80%

Applying the results to Table VI, the findings yield a numeric designation of Level IV bilaterally. Entering the resulting bilateral numeric designation of Level IV bilaterally to 38 C.F.R. § 4.85, Table VII equates to a 10 percent disability rating under Diagnostic Code 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown.

Based on the evidence above, disability rating in excess of 10 percent for the Veteran's bilateral hearing loss is not warranted.

The Board expressly acknowledges its consideration of the lay evidence of record when adjudicating this claim, including the need for frequent repetitions when speaking to people and the need to increase television volume. The Veteran is competent to report difficulty 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).

The Board acknowledges the Veteran's hearing testimony from January 2026. At that time, the representative acknowledged that the additional auditory findings were obtained after the rating decision on appeal. The representative should know that in order to consider those findings, a supplemental claim should have been filed. The Board cannot consider evidence outside of the period on appeal. The Board also acknowledges the Veteran's subjective complaints regarding difficulty hearing that were expressed during the Board hearing. Unfortunately, as noted at that time, the rating criteria address reduced hearing acuity and clarity by applying a mechanical formula for hearing loss.

Accordingly, the most probative evidence of record persuasively weighs against the claim of entitlement to a disability rating in excess of 10 percent for hearing loss. As the most probative evidence of record persuasively weighs against a disability rating in excess of 10 percent, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7.

REASONS FOR REMAND

1. Entitlement to service connection for vertigo is remanded.

2. Entitlement to service connection for OSA is remanded.

The Veteran's vertigo and OSA are remanded to
hearing loss.

REASONS FOR REMAND

1. Entitlement to service connection for vertigo is remanded.

2. Entitlement to service connection for OSA is remanded.

The Veteran's vertigo and OSA are remanded to correct a pre-decisional duty to assist error that occurred prior to the July 2023 rating decision. The Veteran has claimed secondary service connection between his claimed disabilities and his service-connected hearing loss and tinnitus. The Veteran was afforded a VA examination that addressed whether the claimed disabilities were caused by his hearing loss and tinnitus, but did not address whether the disabilities were aggravated by his hearing loss and tinnitus. As such, a remand for an aggravation opinion is necessary.

Additionally, the Veteran was granted service connection for hypertension in the July 2023 rating decision. The June 2023 examiner noted hypertension as a risk factor for OSA. Based on that finding, the AOJ should have obtained a nexus opinion regarding whether the Veteran's hypertension caused or aggravated his OSA.

Finally, the June 2023 examiner noted that benign paroxysmal positional vertigo (BPPV) occurs when crystals detach and flow freely in the inner ear. He did not note whether the Veteran's acoustic trauma during service caused the crystals to be damaged.

The matters are REMANDED for the following action:

1. Obtain an addendum opinion from the June 2023 examiner or another qualified examiner regarding the Veteran's claimed vertigo. Following a complete review of the evidence of record and with consideration of the Veteran's lay statements, assuming the statements are credible for the limited purpose of the request herein, the medical professional is requested to provide the following opinions:

(a.) Did the Veteran's hearing loss or tinnitus aggravate the Veteran's BPPV?

(b.) Did the Veteran's acoustic trauma during service cause the Veteran's BPPV, to include by damaging the crystals in the inner ear?

The examiner is informed that a positive opinion indicating a nexus to service or to a service-connected disability does not require certainty. Rather, if the weight of the evidence is in approximate balance for and against a nexus to service or a service-connected disability, the examiner should decide favorable to the Veteran.

A complete rationale must be provided for all opinions offered. If an additional examination is required for the examiner to sufficiently address the above questions, then a new examination should be afforded.

2. Obtain an addendum opinion from the June 2023 examiner or another qualified examiner regarding the Veteran's claimed OSA. Following a complete review of the evidence of record and with consideration of the Veteran's lay statements, assuming the statements are credible for the limited purpose of the request herein, the medical professional is requested to provide the following opinions:

(a.) Did the Veteran's hearing loss or tinnitus aggravate the Veteran's OSA?

(b.) Did the Veteran's hypertension cause the Veteran's OSA? The examiner should address the June 2023 nexus opinion noting hypertension as a factor in OSA.

(c.) Did the Veteran's hypertension aggravate the Veteran's OSA?

(Continued on the next page)

D. SMART

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Veresink, Patricia

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.

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