Citation Nr: 21005134 Decision Date: 01/29/21 Archive Date: 01/29/21 DOCKET NO. 15-21 854 DATE: January 29, 2021 ORDER An initial compensable rating for hearing loss is denied.   FINDING OF FACT The Veteran’s hearing was manifested by hearing acuity of no worse than Level I in the right ear and in the left ear. CONCLUSION OF LAW The criteria for an initial compensable rating for hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.85, 4.86, Diagnostic Code (DC) 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1983 to October 1987. The case is on appeal from a December 2014 rating decision. In May 2019, the Veteran testified at a Board hearing. In an October 2019 decision, the Board denied a higher initial rating and an earlier effective date for tinnitus. At that time, the Board also remanded the hearing loss claim for additional development. In an April 2020 decision, the Board remanded the hearing loss claim for further development. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). An initial compensable rating for hearing loss. Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation 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. 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 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. 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 puretone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hertz). 38 C.F.R. § 4.85, DC 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 puretone 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 puretone 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). Analysis The Veteran contends he is entitled to a higher rating for his service-connected hearing loss. He also asserts that due to his hearing loss his ability to hear others speaking has diminished. See Board Hr’g. Tr. at 6. The Veteran, who is a trial attorney, also asserted that he has difficulty hearing court proceedings. Id. at 7. The appeal period now before the Board begins on October 7, 2014, which is when service connection went into effect for this condition. See Fenderson v. West, 12 Vet. App. 119 (1999). This disability is assigned a noncompensable rating beginning from that date. The Veteran underwent a VA examination in December 2014. At that time, the Veteran reported difficulty hearing conversations when there is significant background noise, such as in groups of people or in restaurants. He also stated that he requires a louder volume when watching the television, which his wife and children find frustrating, and that often asks people to repeat themselves. Testing from the December 2014 VA examination by an audiologist revealed the following puretone thresholds, in decibels and Maryland CNC Word List speech recognition scores: HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 20 35 30 40 31.25 98% LEFT 25 25 35 40 31.25 96% Applying the results to Table VI, the findings yield a numeric designation of Level I for the right ear and Level I for the left ear. Entering the resulting bilateral numeric designation of Level I for the right ear and left ear to 38 C.F.R. § 4.85, Table VII, equates to a noncompensable disability rating under DC 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. The Veteran underwent an additional VA examination in February 2016. With regard to the functional impact of his hearing loss, the Veteran reported that it is more difficult to hear in the courtroom and that he has difficulty hearing when there is background noise. The February 2016 VA examination revealed the following puretone thresholds, in decibels and Maryland CNC Word List speech recognition scores: HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 80 40 35 40 48.75 98% LEFT 25 25 40 35 31.25 96% The level for the right ear at 1000 Hz appears to be an outlier, but the Board will assess the evidence as documented. Applying the results to Table VI, the findings yield a numeric designation of Level I for the right ear and Level I for the left ear. Entering the resulting bilateral numeric designation of Level I for the right ear and left ear to 38 C.F.R. § 4.85, Table VII, equates to a noncompensable disability rating under DC 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. The Veteran underwent an additional VA examination in November 2020 pursuant to the Board’s April 2020 remand. With regard to the functional impact of his hearing loss, the Veteran reported that has difficulty hearing during court and conversations in groups. The November 2020 VA examination revealed the following puretone thresholds, in decibels and Maryland CNC Word List speech recognition scores: HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 35 45 45 45 42.50 100% LEFT 35 35 50 45 41.25 100% Applying the results to Table VI, the findings yield a numeric designation of Level I for the right ear and Level I for the left ear. Entering the resulting bilateral numeric designation of Level I for the right ear and left ear to 38 C.F.R. § 4.85, Table VII, equates to a noncompensable disability rating under DC 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. The evidence of record also includes VA treatment records show treatment for hearing loss, including the use hearing aids. These records do not include the results of any audiometric testing. See April 2016 VA treatment records. Based on the evidence above, a compensable rating for hearing loss is not warranted during the appellate period. Although the Veteran contends that his hearing loss should be assigned a compensable rating, the applicable mechanical hearing tests of record show that his hearing loss was correctly evaluated as noncompensable during the appellate period. The Board acknowledges the lay evidence of record when adjudicating this claim, including the Veteran’s complaints regarding his difficulty hearing. 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). Moreover, 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. As such, the benefit-of-the-doubt doctrine is not for application. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Therefore, a higher initial rating for hearing loss is not warranted. RYAN T. KESSEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Gray, 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.