Citation Nr: 18145765 Decision Date: 10/30/18 Archive Date: 10/30/18 DOCKET NO. 17-04 053 DATE: October 30, 2018 ORDER Entitlement to a compensable rating for left ear hearing loss is denied. FINDING OF FACT Throughout the appeal period, left ear hearing loss has been no worse than Level I, and the Veteran has not been service connected for right ear hearing loss. CONCLUSION OF LAW The criteria for a compensable rating for left ear hearing loss have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (West 2012); 38 C.F.R. §§ 3.159, 3.321, 3.385, 4.1, 4.3, 4.7, 4.85, Diagnostic Code 6100 (2017), Tables VI and VII. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had qualifying service from March 1969 to December 1970. 1. Compensable Rating for Left Ear Hearing Loss The Veteran’s left ear hearing loss has been service connected at 0 percent since July 17, 2013; the Veteran is not service connected for right ear hearing loss. See October 2015 Codesheet. The Veteran generally contends that the severity of his left ear hearing loss is greater than contemplated by the current rating; he further contends that the VA rating scheme for hearing loss is inherently incapable of adequate explanation or of providing a rational basis for decisions because, under 38 C.F.R. § 4.85, the same audiogram will produce widely different results based upon the Maryland CNC score which does not consider the decibel rating of the test. See January 2016 Notice of Disagreement (requests a 10 percent rating); January 2016 VA Form 9 (discusses VA rating scheme). Although the Board acknowledges the Veteran’s contentions, there is no evidence currently associated with the claims file indicating that the Veteran has the academic or professional background required to competently opine regarding the validity of Maryland CNC tests. See DD Form 214 (MOS of clerk typist with 13 years of general education); Education records (pursuit of an Associate’s Degree in business administration); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465 (1994). Further, the audiological data currently associated with the claims file warrants nothing greater than a noncompensable evaluation. In determining the severity of a disability, the Board applies the criteria set forth in the Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If the disability more closely approximates the criteria for the higher of two ratings, the higher rating is assigned. 38 C.F.R. § 4.7. Generally, severity of hearing impairment is calculated by applying puretone threshold average and speech discrimination to Table VI and Table VII; when impaired hearing is service-connected in only one ear, the non-service-connected ear is assigned a Roman Numeral designation of I in order to determine the percentage evaluation from Table VII. 38 C.F.R. §§ 3.383, 4.85. Examinations of hearing impairment 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. 38 C.F.R. § 4.85(a). In July 2013, the Veteran was examined by provider CCE, who is listed as an audiologist (AuD). Left ear puretone thresholds measured (in decibels): 25 at 1000 Hz; 40 at 2000 Hz; 40 at 3000 Hz; 35 at 4000 Hz; average 35 Hz. Left ear word discrimination measured 100 percent; however, because the provider did not note whether the Maryland CNC test was performed, this data is inadequate for VA purposes. Even if the speech discrimination score were based on the Maryland CNC, the application of the data to Tables VI and VII would still result in a noncompensable rating (left ear is Roman Numeral I on Table VI and right ear is Roman Numeral I because it is not service connected, which combine to Roman Numeral I on Table VII and result in a noncompensable rating). In July 2013, the Veteran was also examined by provider AM, who is listed as a medical doctor (MD), not a state-licensed audiologist. Although the Veteran contended that provider AM was an audiologist, review of the provider’s business website confirms that he is an otolaryngologist, not an audiologist. See January 2016 VA Form 9 (the Veteran contends that AM is an AuD); http://elkinent.com/meet-the-staff/, last accessed on October 19, 2018 (AM is a board-certified otolaryngologist, not an AuD). As such, this provider’s data is inadequate for VA purposes. Therefore, even if the data were adequate, and the Board ascertained that the Maryland CNC test was used, this private evidence cannot be used under the regulations to evaluate the Veteran’s disability. In February 2014, the Veteran was afforded a VA audiological examination. Left ear puretone thresholds measured (in decibels): 25 at 1000 Hz; 45 at 2000 Hz; 45 at 3000 Hz; 35 at 4000 Hz; average 38 Hz. Left ear word discrimination measured 98 percent from the Maryland CNC test. The application of the data to Tables VI and VII still results in a noncompensable rating (left ear is Roman Numeral I on Table VI and right ear is Roman Numeral I because it is not service connected, which combine to Roman Numeral I on Table VII and result in a noncompensable rating). In January 2016, the Veteran was examined again by provider AM. As discussed above, provider AM’s data is inadequate because he is not a state-licensed audiologist. In January 2016, the Veteran was examined again by provider CCE, an audiologist. Left ear puretone thresholds measured (in decibels): 45 at 1000 Hz; 40 at 2000 Hz; 50 at 3000 Hz; 55 at 4000 Hz; average 47.5 Hz. Left ear word discrimination measured 96 percent from the Maryland CNC test. The application of the data to Tables VI and VII still results in a noncompensable rating (left ear is Roman Numeral I on Table VI and right ear is Roman Numeral I because it is not service connected, which combine to Roman Numeral I on Table VII and result in a noncompensable rating). In sum, based on the competent audiological data and its application to the schedular criteria, the Veteran’s left ear hearing loss warrants nothing greater than a noncompensable evaluation. Thus, the claim must be denied. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD H. Daus, Associate Counsel