Citation Nr: 21002822 Decision Date: 01/15/21 Archive Date: 01/15/21 DOCKET NO. 16-46 919 DATE: January 15, 2021 ORDER Entitlement to an initial compensable rating for a right ear hearing loss disability is denied. FINDING OF FACT At worst, the Veteran manifested a level IV hearing loss in the right ear throughout the entire appeal period. CONCLUSION OF LAW The criteria for an initial compensable rating for a right ear 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 Marine Corps from June 1974 to June 1978. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2016 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In October 2018, the Veteran testified before the undersigned Veterans Law Judge during a Board video conference hearing. This matter was previously before the Board in May 2019 but was remanded to obtain a current VA examination. In an April 2020 supplemental statement of the case (SSOC), his claim for an initial compensable rating for his right ear hearing loss disability was denied. This matter is again before the Board for adjudication. Increased Rating The Veteran seeks an initial compensable rating for his right ear hearing loss disability. Specifically, he asserts that his right ear hearing loss warrants at least a 10 percent disability rating. See March 2016 notice of disagreement. At the Board hearing he further testified that he has to ask people to repeat themselves and that he is unable to hear directions properly from his boss. See October 2018 Board Hearing. 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. 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. The regulation under 38 C.F.R. § 4.85 (f) further provides that if impaired hearing is service connected in only one ear, the nonservice-connected ear will be assigned a Roman Numeral designation for hearing impairment of I, subject to the provisions of § 3.383. 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 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 right ear hearing loss disability. The Veteran’s initial VA examination in December 2015 shows his puretone thresholds for the right ear, in dB, were 25dB at 1000Hz; 30dB at 2000Hz; 70dB at 3000Hz; and 65dB at 4000Hz, with an average of 48dB. Puretone thresholds for the left ear, in dB, were 20dB at 1000Hz; 20dB at 2000Hz; 25dB at 3000Hz; and 25dB at 4000Hz, with an average of 23dB. Speech discrimination scores revealed speech recognition ability of 96 percent in both the right and left ear. Applying his average dB and speech discrimination scores to Table VI, his right ear yields a Level I hearing loss. As his left ear has not been service connected throughout the entire period on appeal, it is assigned a Level I hearing loss according to 38 C.F.R. § 4.85 (f). 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 I for the right ear (the poorer ear) combined with a Level I for the left ear results in a non-compensable rating for his right ear hearing loss disability. A November 2019 VA examination further does not reflect that a compensable rating is warranted. As shown in that VA examination, his puretone thresholds for the right ear, in dB, were 35dB at 1000Hz; 55dB at 2000Hz; 80dB at 3000Hz; and 65dB at 4000Hz, with an average of 59dB. Puretone thresholds for the left ear, in dB, were 30dB at 1000Hz; 30dB at 2000Hz; 30dB at 3000Hz; and 35dB at 4000Hz, with an average of 31dB. Speech discrimination scores revealed speech recognition ability of 80 percent in the right ear and 100 percent in the left ear. Applying his average dB and speech discrimination scores to Table VI, his right ear yields a Level IV hearing loss. In applying these findings to Table VII, a Level IV 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 right ear hearing loss disability. The Board has considered the Veteran’s lay statements regarding his belief that his right ear hearing loss should warrant a 10 percent disability. Unfortunately, the ratings for hearing loss disabilities involve a mechanical application of the rating schedule to the numeric designations assigned based on the audiometric test results. Lendenmann, 3 Vet. App. at 345. As there is no evidence that the VA examinations reports are inadequate, the Board finds affords the most probative weight to the VA examinations. To the extent that the Veteran takes issue with the rating criteria themselves, the rating criteria specifically provide for ratings based on all levels of hearing loss, including exceptional hearing patterns, see 38 C.F.R. § 4.86 (2018), as measured by both audiometric testing and speech recognition testing. See Doucette v. Shulkin, 28 Vet. App. 366, 369 (2017) (holding “that the rating criteria for hearing loss contemplate the functional effects of decreased hearing and difficulty understanding speech in an everyday work environment”). Accordingly, the Board finds that the preponderance of the evidence is against an initial compensable rating for the Veteran’s right ear hearing loss disability. In reaching this conclusion, the Board considered the doctrine of reasonable doubt, however, the doctrine is not for application. Therefore, the Veteran’s claim must be denied. 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.