Citation Nr: 20007765 Decision Date: 01/30/20 Archive Date: 01/29/20 DOCKET NO. 18-10 927 DATE: January 30, 2020 ORDER Entitlement to a compensable rating for right ear hearing loss is denied. FINDING OF FACT At worst, the Veteran has Level I hearing loss in his right ear; service connection has not been established additionally for the hearing loss in his left ear, and he is not deaf in this other ear. CONCLUSION OF LAW A compensable rating for the right ear hearing loss is not warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.85, 4.86, Diagnostic Code (DC/Code) 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is a Veteran who served on active duty from October 1974 to September 1978, from November 17, 2001 to November 18, 2001, from March 2003 to February 2004, and from February 2012 to October 2012.   This matter is before the Board of Veterans’ Appeals (Board) on appeal from a January 2017 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In December 2019, in support of this claim, the Veteran testified at a hearing before the undersigned Veterans Law Judge; a transcript of the proceeding is of record. Entitlement to a compensable rating for right ear hearing loss In the January 2017 rating decision at issue, service connection was granted for the Veteran’s right ear hearing loss and it initially was rated as 0-percent disabling, i.e., noncompensable, based on the results of a November 2016 VA examination. He appealed for a higher initial rating. See Fenderson v. West, 12 Vet. App. 119 (1999). However, based on the evidence of record, the Board finds that a higher, i.e., compensable rating is not warranted for this service-connected disability at any time during the relevant period being considered. Ratings for hearing loss disability are derived from Table VII of 38 C.F.R. § 4.85 by a mechanical application of the rating schedule to numeric designations assigned after audiometric evaluations are performed. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). The numeric designations correspond to eleven auditory acuity levels, indicated by Roman numerals, where Level I denotes essentially normal acuity and Level XI denotes profound deafness. The assignment of the appropriate numeric level is based on the results of controlled speech discrimination tests in combination with average hearing threshold. The average threshold is obtained from puretone audiometric tests in the frequencies of 1000, 2000, 3000, and 4000 Hertz. 38 C.F.R. § 4.85. Rating specialists use either Table VI or VIa of 38 C.F.R. § 4.85 to determine the correct Roman numeral designation. Table VIa is used when speech discrimination tests are inappropriate due to language difficulties, inconsistent speech discrimination scores, etc., or where there is an exceptional pattern of hearing loss (as defined in 38 C.F.R. § 4.86). One such pattern occurs when puretone thresholds at each of the four specified frequencies is 55 decibels or more. Another occurs when the puretone threshold at 1000 Hertz is 30 decibels or less and the puretone threshold at 2000 Hertz is 70 decibels or more. 38 C.F.R. § 4.86. As of the time of this decision, service connection only has been established for the hearing loss in the Veteran’s right ear. In the January 2017 rating decision at issue, the RO deferred considering whether service connection also is warranted for left ear hearing loss. Thus, until such time as that determination is made, the nonservice-connected ear (left ear) is assigned a Level I designation under Table VII of 38 C.F.R. § 4.85. See also 38 C.F.R. § 3.383 (regarding paired organs). On November 2016 VA examination, the Veteran reported difficulty hearing and understanding speech since 2010. His puretone thresholds for his right ear were: HERTZ 500 1000 2000 3000 4000 RIGHT 15 20 35 40 50 The right ear puretone threshold average was 36 decibels. Speech discrimination by Maryland CNC word list, was 98 percent. Applying 38 C.F.R. § 4.85, Table VI, to the audiometric examination findings and speech recognition scores, the Veteran’s right and left ear hearing loss are both Level I impairments. Applying this Level I designation for each ear to Table VII correlates to a noncompensable (0 percent) evaluation. During his more recent December 2019 videoconference hearing, the Veteran testified that he constantly must asks people to repeat themselves and that his right ear hearing loss had worsened since that November 2016 VA examination that was the basis for initially rating his right ear hearing loss at the 0-percent level. Ordinarily, this would require remanding his claim to have him reexamined to reassess the severity of this service-connected disability. See, e.g., Caffrey v. Brown, 6 Vet. App. 377, 381 (1994). Indeed, when questioned by his representative, the Veteran indicated his willingness to being reexamined. But, since the hearing, he already has undergone this additional hearing evaluation. On January 2020 VA examination, the puretone thresholds were: HERTZ 500 1000 2000 3000 4000 RIGHT 10 30 40 50 55 The Veteran’s puretone threshold average for his right ear was 44 decibels. His speech recognition ability was 100 percent for his right ear using the Maryland CNC speech recognition test. Applying 38 C.F.R. § 4.85, Table VI, to the January 2020 audiometric examination findings, his right ear hearing loss is still Level I impairment – which, when combined with the Level I impairment in his nonservice-connected left ear, according to Table VII still results in a noncompensable (0 percent) evaluation. Ratings for hearing loss disability are based on results of official audiometry (specified in 38 C.F.R. § 4.85). Although the Veteran is competent to report his perception of a decline in hearing acuity, according to 38 C.F.R. § 4.85 the level of severity of his disability is established by the official audiometry. No audiometry during the evaluation period conducted in accordance with 38 C.F.R. § 4.85 has found the Veteran to have right ear hearing loss disability of sufficient severity to warrant a compensable schedular rating. Findings on November 2016 and January 2020 VA audiometry correlate to Level I hearing loss in this ear. This level of hearing loss warrants at most a 0 percent rating under Table VII. Moreover, no audiometry during the evaluation period found an exceptional pattern of hearing loss as to, in turn, warrant rating the disability under the alternative criteria of Table VIa. 38 C.F.R. § 4.86.   The Board is mindful of the Veteran’s pleadings and hearing testimony with regard to his diminished hearing acuity. The Board does not dispute that he has some abnormal hearing acuity. However, the rating criteria for hearing loss contemplate the functional effects of decreased hearing and difficulty understanding speech in an everyday work environment, as these are precisely the effects that VA’s audiometric tests are designed to measure. When “hearing loss results in an inability to hear or understand speech or to hear other sounds in various contexts, those effects are contemplated by the scheduler rating criteria.” See Doucette v. Shulkin, 28 Vet. App. 366 (2017). In sum, the Board finds that an increased rating is not warranted. The Board has considered the policy of giving the benefit of the doubt to the Veteran, as required by 38 U.S.C. § 5107 and 38 C.F.R. §§ 3.102, 4.3, but does not find that the evidence is of such approximate balance as to warrant its application. Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P. Poindexter 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.