Citation Nr: 20043717 Decision Date: 06/29/20 Archive Date: 06/29/20 DOCKET NO. 17-33 132 DATE: June 29, 2020 ORDER Entitlement to an initial compensable rating for left ear hearing loss is denied. FINDING OF FACT The Veteran’s left ear hearing has been manifested by hearing acuity of no worse than Level IV. CONCLUSION OF LAW The criteria for a compensable rating for left ear 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 (DC) 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1968 to January 1970. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a July 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), which granted service connection for left ear hearing loss and assigned a noncompensable rating, effective April 14, 2016. The Veteran testified in September 2019 before the undersigned Veterans Law Judge. A hearing transcript is associated with the claims file. In November 2019, the Board remanded the appeal for additional development. The Board finds that there has been substantial compliance with the Board’s prior remand directives. Stegall v. West, 11 Vet. App. 268 (1998). Dyment v. West, 13 Vet. App. 141 (1999). Entitlement to an initial compensable rating for left ear hearing loss The Veteran contends that a higher rating is warranted for his service-connected left ear hearing loss disability. He testified that, due to his hearing impairment, he cannot hear anything if laying down on his right ear; others must very loudly; he must ask others to repeat themselves all the time; he must look at a person in order to hear what they are saying; he cannot hear the doorbell. Although he obliquely stated that his disorder affects his sleeping, the Veteran provided no details or further explanation. See Hearing Transcript (September 2019). The Board concludes that the preponderance of the evidence is against finding that the Veteran meets, or met during the appeal period, the criteria for a compensable evaluation for left ear hearing loss. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85, 4.86, DC 6100. Disability evaluations are determined by the application of the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Any reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. A disability may require re-evaluation in accordance with changes in a veteran’s condition. It is thus essential, in determining the level of current impairment, that the disability be considered in the context of the entire recorded history. 38 C.F.R. § 4.1. Impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies (500, 1000, 2000, 3000, and 4000 Hertz) is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies (500, 1000, 2000, 3000, or 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. 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). If impaired hearing is service-connected in only one ear, the law allows for compensation for hearing loss as if both ears were service-connected if the service-connected hearing loss is ratable as at least 10 percent disabling and the non-service-connected hearing loss meets the standard for a hearing loss disability for VA purposes under 38 C.F.R. § 3.385, unless the non-service-connected hearing loss is the result of the Veteran’s willful misconduct. See 38 C.F.R. § 3.383. To determine the percentage evaluation from Table VII, the non-service-connected ear will be assigned a Roman Numeral designation for hearing impairment of I, subject to the provisions of 38 C.F.R. § 3.383, 4.85(f). A July 2016 VA hearing loss examination reflects that the Veteran reported that he has to use a hearing aid to hear, but denied ear pain, pressure, aural fullness, vertigo, ear infections, ear surgery, head injury, stroke, chemotherapy, radiation therapy, or any significant family history of 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, for the left ear were as follows: July 2016 HERTZ 1000 2000 3000 4000 Avg CNC LEFT 25 55 60 60 50 84 Applying 38 C.F.R. § 4.85, Table VI, to the July 2016 audiological findings, the Veteran has a numeric designation of II in the left ear. The non-service-connected right ear is assigned a numeric designation of I. Application of 38 C.F.R. § 4.85, Table VII results in a finding that a noncompensable disability evaluation for left ear hearing loss is warranted. An exceptional pattern of hearing impairment is not shown on the July 2016 examination. 38 C.F.R. § 4.86. A January 2018 VA hearing loss examination reflects that the Veteran reported that he was unable to hear without a hearing aid. 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, for the left ear were as follows: January 2018 HERTZ 1000 2000 3000 4000 Avg CNC LEFT 30 55 65 60 53 86 Applying 38 C.F.R. § 4.85, Table VI, to the January 2018 audiological findings, the Veteran has a numeric designation of II in the left ear. The non-service-connected right ear is assigned a numeric designation of I. Application of 38 C.F.R. § 4.85, Table VII results in a finding that a noncompensable disability evaluation for left ear hearing loss is warranted. An exceptional pattern of hearing impairment is not shown on the January 2018 examination. 38 C.F.R. § 4.86. A December 2019 VA hearing loss examination reflects that the Veteran reported he is unable to hear. He has to turn the television volume up. If he is out, he has to put in his hearing aid. He usually must tell people to repeat themselves. 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, for the left ear were as follows: December 2019 HERTZ 1000 2000 3000 4000 Avg CNC LEFT 35 60 65 70 58 80 Applying 38 C.F.R. § 4.85, Table VI, to the December 2019 audiological findings, the Veteran has a numeric designation of IV in the left ear. The non-service-connected right ear is assigned a numeric designation of I. Application of 38 C.F.R. § 4.85, Table VII results in a finding that a noncompensable disability evaluation for left ear hearing loss is warranted. An exceptional pattern of hearing impairment is not shown on the December 2019 examination. 38 C.F.R. § 4.86. The Board expressly acknowledges its consideration of the Veteran’s contention as noted above. See Hearing Transcript ( September 2019 ). The Veteran is competent to report difficulty with his 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). Accordingly, the claim is denied. Because the left ear hearing loss disability has not met the criteria for a higher evaluation at any time during the appeal period, there is no basis for a staged rating. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 22 Vet. App. 505 (2007). 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). C.A. SKOW Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Pendleton, 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.