Citation Nr: 21000763 Decision Date: 01/06/21 Archive Date: 01/06/21 DOCKET NO. 18-41 196 DATE: January 6, 2021 ORDER Entitlement to an initial compensable disability evaluation for left ear hearing loss is denied. FINDING OF FACT The Veteran’s left ear hearing loss has been manifested by hearing acuity of no worse than Level I in the right ear and no worse than Level VIII in the left ear. CONCLUSION OF LAW The criteria for an initial compensable disability evaluation 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 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1983 to October 1986. This matter is on appeal from a July 2017 rating decision. In June 2019, the Board remanded the claim for additional development. Entitlement to an initial compensable evaluation for left ear hearing loss The Veteran contends that he is entitled to a compensable evaluation for his left ear hearing loss because of difficulty hearing when someone is behind him, or with surrounding noise, despite use of hearing aids. See September 2020 Correspondence. 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. 38 C.F.R. § 4.85(f). A June 2017 VA examination reveals that the Veteran reported trouble hearing conversations, specifically when a person is behind him. He also reported trouble hearing when there is noise, at parties, and when a person talks far away from him. 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: June 2017 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 15 15 15 35 20 98% LEFT 0 35 65 65 41 88% Applying the results to Table VI, the findings yield a numeric designation of Level I in the right ear and Level II in the left ear. Entering the resulting bilateral numeric designation of Level I for the right ear and Level II for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a 0 percent disability rating under Diagnostic Code 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. In support of his claim, the Veteran submitted private treatment records that include 2017 audiogram tests. A June 2017 dated audiometer test was conducted. The Veteran’s Maryland CNC Word List speech recognition scores and pure tone thresholds, in decibels, were as follows: June 2017 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 15 15 15 40 21 100% LEFT 10 65 75 70 55 68, 48, 72 % Here, because June 2017 private treatment records list three Maryland CNC speech recognition scores for the left ear, the Board is unable to apply the private results to Table VI because the table provides a numeric designation based on one, not multiple, speech recognition score for each ear. Regardless, even if the Board were to apply each separate listed Maryland CNC discrimination score to Table VI, the findings would yield a numeric designation of Level I in the right ear and, at worst, Level VIII in the left ear. Entering the resulting bilateral numeric designation to 38 C.F.R. § 4.85, Table VII, equates to a 0 percent disability rating under Diagnostic Code 6100. The Board acknowledges that the June 2017 private audiogram also lists Northwestern University Auditory Test Number Six (NU-6) speech recognition scores; however, under applicable VA regulations, NU-6 speech recognition scores cannot be applied to Table VI and cannot be used. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. A December 2017 private treatment record reveals that the Veteran reported occupational and nonoccupational noise exposure from a radio earpiece, rifle and pistol shooting. December 2017 dated audiometer tests were conducted and pure tone thresholds in decibels were as follows: December 2017 HERTZ 1000 2000 3000 4000 Avg RIGHT 10 5 20 25 15 LEFT 0 65 65 65 49 The Board is unable to apply these private test results to Table VI because all the required information is not present. Notably, Maryland CNC speech recognition scores were not provided. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. August 2017 VA treatment records note a “scanned document” during an audiological examination, but such scanned document is not of record. As such in June 2019, the Board remanded the claim to obtain the scanned document. Post-remand, the agency of original jurisdiction (AOJ) associated updated VA treatment records with the claims file, to include August 2017 VA treatment records, however, the mentioned scanned document is still not of record. To this regard, August 2017 VA treatment records discuss the audiological test conducted, stating that pure tone testing was consistent with June 2017 audiological tests and within normal limits. Left ear results showed normal limits from 250-1000 Hertz at 8000 Hertz with mild to moderately severe sensorineural hearing loss from 2000 to 6000 Hertz. As such, hearing aids were recommended and a diagnosis of sensorineural hearing loss was provided. Although the scanned document is not available, VA treatment records describe the audiological test conducted in detail, including a discussion of pure tone thresholds, and indicate that such test was consistent with June 2017 audiological tests, discussed above. Further, the Veteran was afforded another VA audiological examination in December 2019, discussed in detail below. As such, the Board finds that there is no possibility that any additional development would aid the Veteran in substantiating his claim and that any deficiency in the duty to assist could be no more than harmless error. See Shinseki v. Sanders, 556 U.S. 396 (2009) (holding that a duty to assist error is not automatically prejudicial and must be reviewed for harmless error). Moreover, the Veteran and his representative have not raised any issues with the duty to notify or duty to assist. In a February 2018 notice of disagreement (NOD), the Veteran requested a 20 percent rating for his left ear hearing loss. In his August 2018 substantive appeal to the Board, via VA Form 9, he alleged a worsening of left ear hearing loss symptoms. He reported trouble hearing family members and friends when they speak to him without the use of his hearing aids. A December 2019 VA examination reveals that the Veteran reported that his hearing loss extremely impacts his ability to hear people at work. He reported having people repeat conversations. 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: June 2017 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 10 10 15 15 13 100% LEFT 5 70 80 85 60 88% Applying the results to Table VI, the findings yield a numeric designation of Level I in the right ear and Level III in the left ear. Entering the resulting bilateral numeric designation of Level I for the right ear and Level III for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a 0 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, an initial compensable rating for the Veteran’s left ear hearing loss is not warranted. The Board expressly acknowledges its consideration of the lay evidence of record when adjudicating this claim, including difficulty hearing conversations with others. 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). 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). To the extent that the Veteran asserts the inadequacy of the VA examinations provided, including his assertion that an unaided sound field speech recognition with sound test was not provided during the December 2019 examination, a presumption of regularity is applied to all manner of VA processes and procedures. Miley v. Principi, 366 F.3d 1343, 1346-47 (Fed. Cir. 2004) (“The presumption of regularity provides that, in the absence of clear evidence to the contrary, the court will presume that public officers have properly discharged their official duties.”); Rizzo v. Shinseki, 580 F.3d 1288, 1292 (Fed. Cir. 2008) (applying the presumption of regularity to VA examination). Clear evidence is required to rebut the presumption of regularity. Miley, 366 F.3d at 1347. The Board finds that such evidence has not been proffered and furthermore, the Veteran had been afforded multiple examinations during the appellate period. Thus, the Board finds the VA examinations provided are adequate for evaluating the Veteran’s left ear hearing loss throughout the appeal period. Accordingly, the preponderance of the most probative evidence is against the claim of entitlement to an initial compensable rating for left ear hearing loss. 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). Jenna Brant Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Amanda Baker, 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.