Citation Nr: 21002342 Decision Date: 01/13/21 Archive Date: 01/13/21 DOCKET NO. 16-35 548 DATE: January 13, 2021 ORDER Entitlement to an initial compensable rating for a hearing loss disability is denied. FINDING OF FACT For the entire period on appeal, the Veteran had no worse than a Level II hearing loss in the right ear and a Level I hearing loss in the left ear. CONCLUSION OF LAW The criteria for an initial compensable rating for a bilateral hearing loss disability have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from January 1984 to December 1988. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In September 2019, the Veteran testified before the undersigned Veterans Law Judge during a Board video conference hearing. The Board notes that the Veteran’s service connection claim for a right knee disability was also on appeal with his increased rating claim for a bilateral hearing loss disability. In a July 2020 rating decision, the RO granted the Veteran’s service connection claim for his right knee disability. As such, this issue is no longer on appeal and the Board does not have jurisdiction to consider the matter. Increased Rating The Veteran seeks an initial compensable rating for his bilateral hearing loss disability. Specifically, he asserts that his hearing is consistently worse each year and his hearing scores are lower. See September 2019 Board Hearing. He also states he has a hard time hearing in any situation where there are background noises due to his high-pitched hearing loss. Id. Disability evaluations are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. 38 C.F.R. Part 4. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran’s disability. 38 C.F.R. § 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 U.S.C. § 5107; 38 C.F.R. § 4.7. Pertaining to the Veteran’s claim for an increased rating for his bilateral hearing loss disability, evaluations of defective hearing range from 0 to 100 percent. This is based on impairment of hearing acuity as measured by the results of controlled speech discrimination tests, together with the average hearing threshold level as measured by pure tone audiometric tests in the frequencies of 1000, 2000, 3000, and 4000 Hertz. To evaluate the degree of disability from service-connected hearing loss, the rating schedule establishes eleven auditory acuity levels ranging from numeric level I for essentially normal acuity, through numeric level XI for profound deafness. 38 C.F.R. § 4.85, Tables VI and VII, Diagnostic Code 6100. Table VI in 38 C.F.R. § 4.85 is used to determine the numeric designation of hearing impairment based on the pure tone threshold average from the speech audiometry test and the results of the Maryland CNC speech discrimination test. The vertical lines in Table VI represent nine categories of the percentage of discrimination based on the controlled speech discrimination test. The horizontal columns in Table VI represent nine categories of decibel loss based on the puretone audiometry test. The numeric designation of impaired hearing (Levels I through XI) is determined for each ear by intersecting the vertical row corresponding to the percentage of discrimination and the horizontal column corresponding to the puretone decibel loss. The percentage evaluation is derived from Table VII in 38 C.F.R. § 4.85 by intersecting the vertical column corresponding to the numeric designation for the ear having the better hearing acuity and the horizontal row corresponding to the numeric designation level for the ear having the poorer hearing acuity. The provisions of 38 C.F.R. § 4.86 govern exceptional patterns of hearing impairment. Exceptional patterns of hearing loss include puretone thresholds 55 dB or above for all four of the specified frequencies. If such exceptional patterns are shown, then hearing loss is evaluated under either Table VI or Table VIA, whichever results in a higher Roman numeral. Table VIA is based solely on puretone threshold average. The ratings for disability compensation for hearing loss are determined by the mechanical, meaning non-discretionary, application of the above criteria. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Upon review of the evidence, the Board finds that the preponderance of the evidence does not reflect that an initial compensable rating is warranted for his bilateral hearing loss. The Veteran’s November 2014 VA examination for his bilateral hearing loss showed his puretone thresholds for the right ear, in dB, were 10dB at 1000Hz; 15dB at 2000Hz; 65dB at 3000Hz; and 70dB at 4000Hz, with an average of 40dB. Puretone thresholds for the left ear, in dB, were 10dB at 1000Hz; 10dB at 2000Hz; 60dB at 3000Hz; and 60dB at 4000Hz, with an average of 35dB. Speech discrimination scores revealed speech recognition ability of 88 percent in the right ear and 92 percent in the left ear. Applying his average dB and speech discrimination scores to Table VI, both his right ear yields a Level II hearing loss and his left ear yields a Level 1 hearing loss. For rating purposes under Table VII, his right ear is considered to be the poorer ear and his left ear is the better ear. Applying these results to Table VII, a Level II for the right ear (the poorer ear) combined with a Level I for the left ear, results in a non-compensable rating for his hearing loss. The Veteran further submitted a July 2018 private audiological examination to evaluate his bilateral hearing loss. However, the Board is unable read to the private audiological examination report as the copy is not legible. In this regard, the Board is unable to determine the puretone thresholds in each ear. Moreover, to the extent that it includes legible speech discrimination findings, it is unclear from the report whether such were made using Maryland CNC. An examination for hearing impairment for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a puretone audiometry test. 38 C.F.R. § 4.85 While the Board is unable to review the July 2018 private audiological examination, the Veteran was afforded another VA examination in January 2020. In that VA examination, his puretone thresholds for the right ear, in dB, were 10dB at 1000Hz; 20dB at 2000Hz; 70dB at 3000Hz; and 80dB at 4000Hz, with an average of 45dB. Puretone thresholds for the left ear, in dB, were 10dB at 1000Hz; 20dB at 2000Hz; 70dB at 3000Hz; and 90dB at 4000Hz, with an average of 47.5dB. Speech discrimination scores revealed speech recognition ability of 92 percent in the right ear and 98 percent in the left ear. Applying his average dB and speech discrimination scores to Table VI, both his right ear and left ear yields a Level 1 hearing loss. As both the right and left ear yields the same level of hearing loss, there is no poorer or better ear to be distinguished. In applying these findings to Table VII, a Level I hearing loss for the right ear combined with a Level I hearing loss for the left ear continues to result in a non-compensable rating for his bilateral hearing loss disability. The Board has further considered whether the Veteran is entitled a higher rating under C.F.R. § 4.86. However, the available audiological examination does not show that he has an exceptional pattern of hearing impairment. The Board acknowledge the Veteran’s contention that the VA examination is inadequate because it was conducted in a sterile environment of an audiology booth with the aid of earphones. However, there is no evidence that the VA examinations are inadequate or that the VA examiners are unreliable. Moreover, determining the severity of hearing loss involves using specialized equipment and interpreting audiological test results. Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). As the Veteran has not shown that he possesses the training or experience needed to accomplish these actions, the probative value of his assertions is low. (Continued on the next page)   Accordingly, the preponderance of the most probative evidence is against the claim of entitlement to a compensable rating for a bilateral hearing loss disability. In reaching this conclusion, 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). M. Tenner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Xiong, 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.