Citation Nr: 21001527 Decision Date: 01/08/21 Archive Date: 01/08/21 DOCKET NO. 19-17 003 DATE: January 8, 2021 ORDER An initial compensable rating for bilateral hearing loss is denied. FINDING OF FACT Throughout the period on appeal, the Veteran’s bilateral hearing loss has been manifested by hearing acuity of no worse than Level I in both ears. CONCLUSION OF LAW The criteria for an initial compensable rating for bilateral 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 November 1955 to November 1957. This matter is before the Board following his appeal of a January 2018 rating decision. In November 2019, the Board remanded the Veteran’s claim for further development, which has been substantially completed. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where Board’s remand instructions were substantially complied with), aff’d, Dyment v. Principi, 287 F.3d 1377 (2002). The Board notes that the Veteran submitted a March 2020 VA Form 20-0996, Request for Higher-Level Review, in response to the February 2020 supplemental statement of the case that readjudicated this issue, without checking the SOC/SSOC Opt-in box. In March 2020 correspondence to the Veteran, the Agency of Original Jurisdiction rejected the March 2020 Request for Higher-Level Review. Hence, the Board is reviewing this appeal in the legacy appeals system. Turning to the issue on appeal, the Veteran asserts that his service-connected bilateral hearing loss warrants an initial compensable rating. Unfortunately, following review of the claims file, the Board finds that a higher rating for that disability is not warranted at any point during the period on appeal. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The Rating Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7. All benefit of the doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. 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. The criteria for rating hearing impairment use controlled speech discrimination tests (Maryland CNC) together with the results of pure tone audiometry tests. 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. Turning to the evidence of record, the Veteran was given a VA examination in December 2017. The examiner noted that the Veteran had to be reinstructed several times. The examiner also noted that the Veteran’s hearing loss impacted the ordinary conditions of daily life. Specifically, the Veteran described difficulty understanding the television. 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: [12/29/2017] HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 20 20 45 55 35 100% LEFT 15 20 70 80 46 98% Applying the above results to Table VI, the findings yield a numeric designation of Level I in the right ear and Level I in the left ear, which equates to a noncompensable disability rating under Diagnostic Code 6100. 38 C.F.R. § 4.85, Table VII. An exceptional pattern of hearing impairment as defined in 38 C.F.R. § 4.86 was not shown. In August 2019, the Veteran submitted an ear conditions disability benefits questionnaire (DBQ). However, the DBQ did not include an assessment of the current severity of the Veteran’s disability. The examining clinician merely confirmed the Veteran’s diagnosis and specifically indicated that an audiogram was not performed. The examining clinician also did not address the functional impact of the Veteran’s hearing loss. The Veteran was given another VA examination in January 2020, during which the examiner reported that the Veteran described functional impacts in the form of difficulty understanding speech and needing to ask for constant repetition. 38 C.F.R. § 4.10; Martinak, 21 Vet. App. 447. The Veteran’s Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: [1/2/2020] HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 20 25 50 50 36 100% LEFT 15 25 85 85 53 100% Applying the above results to Table VI, the findings again yield a numeric designation of Level I in the right ear and Level I in the left ear, which equates to a noncompensable disability rating under Diagnostic Code 6100. 38 C.F.R. § 4.85, Table VII. An exceptional pattern of hearing impairment as defined in 38 C.F.R. § 4.86 was again not shown. The Board expressly acknowledges its consideration of the lay evidence of record when adjudicating this claim, including the Veteran’s reports that he has difficulty understanding the television and speech, and his report that he needs to ask for constant repetition. 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 and also contemplate exceptional hearing patterns, which were not demonstrated in this case. The functional impacts that the Veteran describes are 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). The Board is sympathetic to the Veteran’s position that a higher rating is warranted for his service-connected bilateral hearing loss. However, the audiometric examination results, as compared to the rating criteria, do not warrant an initial compensable rating for the Veteran's service-connected bilateral hearing loss. Accordingly, the Board finds that the competent, probative evidence weighs against the Veteran's claim for an initial compensable rating. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Thus, the benefit of the doubt doctrine is not for application. L. STEPANICK Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S.E. Bresler, 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.