Citation Nr: 21002420 Decision Date: 01/13/21 Archive Date: 01/13/21 DOCKET NO. 16-40 805A DATE: January 13, 2021 ORDER Entitlement to a compensable rating for service-connected bilateral hearing loss is denied. FINDING OF FACT Veteran’s bilateral hearing has been manifested by hearing acuity of no worse than Level II in the right ear and no worse than Level III in the left ear. CONCLUSION OF LAW The criteria for a compensable rating for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 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 September 1965 to August 1968. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In August 2019, the Veteran provided testimony before the undersigned Veteran’s Law Judge. A transcript of the hearing has been associated with the claims file. In September 2019, the Board remanded this matter for additional development, which has been substantially completed. See Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to a compensable rating for service-connected bilateral hearing loss is denied. The Veteran seeks a compensable rating for his service-connected bilateral hearing loss, which is rated under 38 C.F.R. § 4.85, Diagnostic Code 6100. Disability ratings are assigned under a schedule for rating disabilities and based on a comparison of the veteran’s symptoms to the criteria in the rating schedule. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Disability evaluations are determined by assessing the extent to which a veteran’s service-connected disability adversely affects the ability to function under the ordinary conditions of daily life, including employment, by comparing the veteran’s symptomatology with the criteria set forth in the ratings schedule. Individual disabilities are assigned separate Diagnostic Codes, and ratings are based on the average impairment of earning capacity. See 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2. If there is a question as to which evaluation should be applied to the veteran’s disability, 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. 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). The Veteran attended a VA examination in January 2015. The Veteran reported that he had difficulty hearing, especially if he was not looking at the speaker, and that he no longer went to the movies. Regarding testing, the examiner stated that the results were not reliable or suitable for rating purposes and as such, were not indicated. The examiner explained that the Veteran had variability in responses to pure-tones of up to 20 dB with retest, which was more than could be expected from test-retest variability. The examiner also noted that the reduced speech recognition scores obtained were inconsistent with observed communication abilities. During a June 2016 VA examination, the Veteran reported decreased hearing. 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:   HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 30 30 60 85 51 96 LEFT 30 20 70 75 49 96 Applying the results to Table VI, the findings yield a numeric designation of Level I in the right ear and Level I in the left ear. Entering the resulting bilateral numeric designation of Level I for the right ear and Level I for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a zero percent disability rating under Diagnostic Code 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. During a September 2020 VA examination, the Veteran reported having difficulty hearing people when they spoke to 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: HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 40 45 70 85 60 92 LEFT 40 50 75 85 63 90 Applying the results to Table VI, the findings yield a numeric designation of Level II in the right ear and Level III in the left ear. Entering the resulting bilateral numeric designation of Level II for the right ear and Level III for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a zero percent disability rating under Diagnostic Code 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. The Board also considered the private audiology report submitted in January 2020. The test results were submitted in graph form; however, the Board is competent to interpret the graph in this instance. The Veteran’s Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: Sept 2019 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 40 50 70 85 61 92 LEFT 35 45 80 85 61 90 Applying the results to Table VI, the findings yield a numeric designation of Level II in the right ear and Level III in the left ear. Entering the resulting bilateral numeric designation of Level II for the right ear and Level III for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a zero 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, a compensable rating for the Veteran’s bilateral hearing loss is not warranted. The Board expressly acknowledges its consideration of the lay evidence of record when adjudicating this claim, including the Veteran’s assertion that his hearing acuity has worsened and that he has difficulty understanding conversations when he cannot see the speaker. 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). (Continued on the next page)   Accordingly, the preponderance of the most probative evidence is against the claim of entitlement to a compensable rating for 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). L. CHU Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Amanda G. Alderman 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.