Citation Nr: 21004821 Decision Date: 01/28/21 Archive Date: 01/28/21 DOCKET NO. 15-04 185 DATE: January 28, 2021 ORDER Entitlement to a compensable rating for bilateral hearing loss is denied. FINDING OF FACT Throughout the period on appeal, the Veteran’s bilateral hearing loss has been manifested by hearing acuity of no worse than Level II in the right ear and Level IV in the left ear. CONCLUSION OF LAW The criteria for entitlement to a compensable rating for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1966 to May 1969. This matter comes before the Board of Veterans’ Appeals (Board) from a December 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In October 2018, the Veteran testified at a Board hearing before a Veterans Law Judge who has since left the Board. A transcript of that hearing is of record. The Veteran was offered an opportunity to participate in another hearing, but indicated in December 2020 that he did not desire another hearing. The case was last before the Board in May 2019 and has returned to the Board for further appellate review. 1. Entitlement to a 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) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Evaluations of hearing loss range from noncompensable to 100 percent, based upon 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 Hertz. 38 C.F.R. § 4.85, Diagnostic Code 6100. To evaluate the degree of disability from service-connected defective hearing, the rating schedule establishes eleven 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, Diagnostic Code 6100. 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). 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). Each ear is considered separately. The Veteran underwent three VA audiology examinations during the claim period. During a November 2013 VA examination, 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 50 55 55 55 54 84% LEFT 40 50 50 60 50 76% Applying the results to Table VI, the findings yield a numeric designation of Level II in the right ear and Level IV in the left ear. Entering the resulting bilateral numeric designation of Level II for the right ear and Level IV for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a noncompensable (0 percent) disability rating under Diagnostic Code 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. On VA examination in May 2016, 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 45 50 50 50 49 92% LEFT 35 45 50 55 46 92% 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 noncompensable (0 percent) disability rating under Diagnostic Code 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown.   On VA examination in August 2020, 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 60 60 55 55 58 100% LEFT 50 60 65 65 60 92% Applying the results to Table VI, the findings yield a numeric designation of Level II in the right ear and Level II in the left ear. Entering the resulting bilateral numeric designation of Level II for the right ear and Level II for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a noncompensable disability rating under Diagnostic Code 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was shown in the right ear. Applying the results to Table VIa yields Level IV in the right ear. As the results under Table VIA are more favorable for the right ear than the results under Table VI, Table VIA is applied. Entering the resulting bilateral numeric designation of Level IV for the right ear and Level II for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a noncompensable (0 percent) disability rating under Diagnostic Code 6100. Based on a review of the evidence, the Board finds that the audiometric findings do not demonstrate that the Veteran is entitled to a compensable rating for bilateral hearing loss at any time during the period on appeal. The Board expressly acknowledges its consideration of the lay evidence of record when adjudicating this claim, as 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, 3 Vet. App. 345. Accordingly, the preponderance of the most probative evidence of record is against the claim of entitlement to a compensable rating for bilateral hearing loss. In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine does not apply. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). K. A. BANFIELD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Lance, 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.