Citation Nr: 21004133 Decision Date: 01/26/21 Archive Date: 01/26/21 DOCKET NO. 16-22 496 DATE: January 26, 2021 ORDER Entitlement to a compensable disability rating for left ear hearing loss is denied. FINDING OF FACT The Veteran’s left ear hearing loss has demonstrated no worse than Level I hearing impairment. CONCLUSION OF LAW The criteria for a compensable rating for left ear 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 had periods of active service from July 1974 to February 1976, from October 2002 to November 2002, from September 2003 to August 2005, from March 2007 to May 2007, and from April 2010 to July 2010. During the current appeal, the Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ) in March 2019. Subsequently, in August 2019, the Board of Veterans’ Appeals (Board) remanded this matter for further evidentiary development. Entitlement to a compensable disability rating for left ear hearing loss This matter arises from an original claim received on February 23, 2012. At that time, the Veteran claimed entitlement to bilateral hearing loss, but a hearing loss disability was only found in his left ear. Service connection for hearing loss was, thus, established in his left ear from the date of the receipt of his claim. At his hearing, the Veteran testified that it was his perception that his hearing loss in both ears had worsened and that service connection was thus warranted for his right ear and an increased evaluation was warranted for his service-connected left ear hearing loss. An additional VA examination in September 2020 revealed hearing loss in his right ear, and he is service-connected for hearing loss bilaterally from September 16, 2020, the date of that examination. The Veteran has not filed a notice requesting an increased evaluation for his bilateral or right ear hearing loss. 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). If impaired hearing is service-connected in only one ear, the law allows for compensation for hearing loss as if both ears were service-connected if the service-connected hearing loss is ratable as at least 10 percent disabling and the non-service-connected hearing loss meets the standard for a hearing loss disability for VA purposes under 38 C.F.R. § 3.385, unless the non-service-connected hearing loss is the result of the Veteran’s willful misconduct. See 38 C.F.R. § 3.383. To determine the percentage evaluation from Table VII, the nonservice-connected ear will be assigned a Roman Numeral designation for hearing impairment of I, subject to the provisions of 38 C.F.R. § 3.383. 38 C.F.R. § 4.85(f). The Veteran’s hearing was adequately tested in two VA examinations in May 2012 and September 2020. The Veteran submitted a hearing test done at a private facility in May 2019 that lacks a controlled speech discrimination test (Maryland CNC). Consequently, those results do not meet the criteria for an adequate evaluation of this condition. A May 2012 VA examination reveals that the Veteran reported the following results: May 2012 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 10 10 20 25 16 96% LEFT 10 20 35 40 26 96% Unfortunately, the Veteran’s perception of the effect of his hearing loss symptoms in his day to day life was not recorded during this examination, but the description given by him of his hearing loss at the hearing before the Board consisted of examples of his difficulty hearing—e.g., turning up the volume on radios, turning on the closed captioning on television programs to help him understand anything he might miss, and asking people to repeat things. The September 2020 VA examination reveals that the Veteran reported similar hearing complaints, needing to have things repeated, difficulty hearing in noisy places, in groups, or on the phone, and needing to increase the volume on devices. 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: September 2020 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 20 20 35 40 28.75 96% LEFT 30 40 55 55 45 92% During the portion of the appeal period when a hearing loss disability was not shown in the right ear (and is not service-connected)—prior to September 16, 2020, the numeric designation of the Veteran’s right ear during this period is Level I. Significantly, the results of both of these audiometric examinations yield the same numeric designation for the Veteran’s left ear hearing loss when those results are applied to Table VI. Entering the resulting bilateral numeric designation of Level I for each ear to 38 C.F.R. § 4.85, Table VII, equates to a 0 percent disability rating under Diagnostic Code 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. Accordingly, a compensable rating for the Veteran’s left ear hearing loss throughout the appeal period is not warranted. The Board expressly acknowledges its consideration of the lay evidence of record when adjudicating this claim, including the Veteran’s lay reports of difficulty hearing and specific complaints about difficulty hearing in certain situations. 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. 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 left ear hearing loss throughout the entirety of the appeal period. 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). THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Steven H. Johnston, 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.