Citation Nr: 20052940 Decision Date: 08/10/20 Archive Date: 08/10/20 DOCKET NO. 16-13 147 DATE: August 10, 2020 ORDER Entitlement to an initial compensable rating for left ear hearing loss is denied. FINDING OF FACT For the entire initial rating period on appeal, the Veteran’s left ear hearing loss manifested at worst a Level I impairment, with speech discrimination at 92 percent on recent testing. CONCLUSION OF LAW The criteria for a compensable rating for left ear hearing loss disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.385, 4.7, 4.85, 4.86 REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had honorable active service with the United States Marine Corps from March 1968 to March 1970. This matter is before the Board of Veterans’ Appeals (Board) on appeal from an April 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In the April 2014 rating decision, the RO granted service connection for hearing loss of the left ear with an evaluation of 0 percent effective October 16, 2012. In March 2016, the Veteran filed a timely appeal to the Board for an increased rating for left ear hearing loss. The Veteran testified at a videoconference hearing before the undersigned Veteran Law Judge (VLJ) in March 2019. A transcript of the hearing is associated with the claims file. The Board remanded the claim back for a new VA examination and development. The Veteran was afforded a new VA examination in September 2019, and the case was returned to the Board. The Board notes that in October 2018, after a de novo review, entitlement to service connection for hearing loss of the right ear was denied by the Board. As to this appeal, right ear hearing loss is not at issue. The Veteran asserts that he is entitled to a compensable rating for his left ear hearing loss. The Veteran testified that his left ear hearing loss has gotten worse since his last VA examination. See Hearing Transcript dated March 2019. Disability ratings are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two ratings will be applied, the higher rating will be assigned if the disability picture more closely approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran’s condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991); see also 38 C.F.R. §§ 4.1, 4.2. As such, the Board has considered all the evidence of record. However, the most probative evidence of the degree of impairment consists of records generated in proximity to and since the claim on appeal. Under applicable laws and regulations, the rating assigned for hearing loss is determined by a mechanical application of the rating schedule, which is grounded on numeric designations assigned to audiometric examination results. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Currently, evaluations of hearing impairment ranges from 0 to 100 percent based on organic impairment of hearing acuity. Auditory acuity is gauged by examining the results of controlled speech discrimination tests, using the Maryland CNC, together with the results of pure tone audiometric tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hz). To evaluate the degree of disability, the rating schedule establishes 11 auditory acuity levels ranging from Level I, for essentially normal acuity, through Level XI, for profound deafness. 38 C.F.R. § 4.85 Tables VI and VII, as set forth following 38 C.F.R. § 4.85, are used to calculate the rating to be assigned. 38 C.F.R. § 4.85. Under 38 C.F.R. § 4.86, when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000 and 4000 Hz) is 55 decibels (dB) or more, Table VI or Table VIa is to be used, whichever results in the higher numeral. 38 C.F.R. § 4.86(a). Additionally, when the pure tone threshold is 30 dB or less at 1000 Hz, and 70 dB or more at 2000 Hz, Table VI or Table VIa is to be used, whichever results in the higher numeral. Thereafter, that numeral will be elevated to the next higher Roman Numeral. 38 C.F.R. § 4.86(b). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the Veteran. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Board determinations with respect to the weight and credibility of evidence are factual determinations going to the probative value of the evidence. Layno v. Brown, 6 Vet. App. 465, 469 (1994). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno, 6 Vet. App. at 465. Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 C.F.R. § 3.159; see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. In this case, the Board has reviewed all the evidence of record, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate and the Board’s analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim on appeal. The Veteran was initially awarded service connection for left ear hearing loss in an April 2014 rating decision. The rating decision found that an evaluation of 0% was effective from October 2012. The Veteran appealed the rating decision assigning a noncompensable rating for left ear hearing loss. In April 2019, the Board remanded the Veteran’s claim for a new VA examination. The VA examination occurred in September 2019. The Veteran reported to the VA examiner that he had trouble hearing in noise. The examiner found that the Veteran’s Puretone thresholds were as follows: HERTZ 1000 2000 3000 4000 LEFT 25 25 40 45 The Veteran’s speech discrimination score was 92 percent in the left ear. His pure tone threshold average for the left ear was 33.75. Applying these values to the Table VI yields a Level I numerical designation for the left ear hearing loss. Since impaired hearing is service connected in only the left ear, in order to determine the percentage from Table VII, the non-service-connected ear is assigned a Roman Numeral designation of Level I. See 38 C.F.R. § 4.85(f). The application of two Level I designations to Table VII results in a noncompensable rating. Additionally, the Veteran’s hearing loss readings do not meet the requirements for evaluation as an exceptional pattern of impairment. The Board finds the noncompensable disability rating currently assigned for the Veteran’s left ear hearing loss accurately reflects his disability picture, and a higher disability rating is not appropriate. In reaching this determination, the Board has considered the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable, and a compensable disability rating for left ear hearing loss is denied. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record as to the Veteran’s left hearing loss. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). B. Mullins Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Associate Counsel, C. Parnell 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.