Citation Nr: 21002994 Decision Date: 01/19/21 Archive Date: 01/19/21 DOCKET NO. 17-39 429 DATE: January 19, 2021 ORDER Entitlement to an initial compensable rating for bilateral hearing loss is denied. FINDING OF FACT The Veteran has no worse than Level I auditory acuity in the right ear and Level V auditory acuity in the left ear; an exceptional pattern of hearing loss was not shown. 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 1965 to July 1969. This case is before the Board of Veterans’ Appeals (Board) on appeal from a May 2017 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In his July 2017 substantive appeal, the Veteran requested a hearing before a Veterans Law Judge. In July 2019 correspondence the Veteran was properly notified of the date, time and location of the scheduled hearing, but failed to report for the hearing without explanation or any request to reschedule. The hearing request is therefore considered withdrawn. 38 C.F.R. § 20.704(d). Entitlement to an initial compensable rating for bilateral hearing loss Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule). 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. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required 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. Table VI is used to determine the Roman numeric designation, based on test results consisting of pure tone thresholds and Maryland CNC test speech discrimination scores. The numeric designations are then applied to Table VII to determine the appropriate rating for hearing impairment. 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). Ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345 (1992). This appeal arises from the original assignment of a disability evaluation following an award of service connection, thus the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating, in this case, February 9, 2017, to the present time. Separate ratings can be assigned for separate periods of time based on the facts found, a practice known as “staged” ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). The Veteran is seeking an increased evaluation for his bilateral hearing loss on the basis that his hearing loss is worse than his current disability rating indicates. As will be demonstrated below, the evidence does not reflect that a compensable evaluation is warranted at any point during the appeal period. A January 2017 private audiological examination from the Hearing Aid Store reveals that word recognition score and pure tone thresholds, in decibels, were as follows: January 2017 HERTZ 1000 2000 3000 4000 Avg WR RIGHT 20 20 60 55 38.75 95 LEFT 20 55 75 75 56.25 85 The Board notes that the audiological examination does not specify whether the Maryland CNC test was used to obtain speech discrimination scores; therefore, the speech recognition scores cannot be utilized for evaluation purposes. If an exceptional pattern of hearing loss is shown, the Hertz decibel readings from non-Maryland CNC evaluations can be applied to Table VIA for rating purposes. However, in this case, the January 2017 private audiological examination does not reflect an exceptional pattern of hearing impairment under 38 C.F.R. § 4.86. Further, even if the Maryland CNC test was used during this January 2017 examination to obtain speech discrimination scores, the result would still be a noncompensable evaluation for the Veteran. At the May 2017 VA examination, the examiner noted that the Veteran’s hearing loss did not impact the ordinary conditions of daily life, including the ability to work. 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: May 2017 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 10 10 50 55 31 96 LEFT 5 50 75 75 51 72 Applying the results to Table VI, the findings yield a numeric designation of Level I in the right ear and Level V in the left ear. Entering the resulting bilateral numeric designation of Level I for the right ear and Level V for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a 0 percent (noncompensable) disability rating under Diagnostic Code 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. The Board expressly acknowledges its consideration of the lay evidence of record when adjudicating this claim, including the Veteran’s statements that without his hearing aids, he has difficulty understanding people in face to face conversations, particularly with background noise, as well as trouble understanding any one person when many people are speaking at the same time. See July 2017 statement in support of claim. 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). (Continued on the next page)   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). 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). Jennifer White Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Alison M. Mecone, 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.