Citation Nr: 21062519 Decision Date: 10/07/21 Archive Date: 10/07/21 DOCKET NO. 17-47 831 DATE: October 7, 2021 ORDER Entitlement to a compensable rating for left ear hearing loss is denied. FINDING OF FACT The Veteran demonstrated, at worst, level IV hearing acuity in his right ear throughout the appeal period. CONCLUSION OF LAW The criteria for a compensable rating for left ear hearing loss have not been met. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. § 4.1, 4.3, 4.85, 4.86, Diagnostic Code 6100 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1971 to June 1993. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office. This matter was previously before the Board in May 2019 at which time the case was remanded for additional development; namely, to obtain any outstanding medical records and to afford the Veteran a new examination. Thus, there has been substantial compliance with the Board's October 2019 remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). The severity of a hearing loss disability is determined by applying the criteria set forth at 38 C.F.R. § 4.85. Under these criteria, evaluations of hearing loss range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests together with the average hearing threshold level as measured by puretone audiometry tests in the frequencies 1,000, 2,000, 3,000, and 4,000 cycles per second. See 38 C.F.R. § 4.85. The assignment of a disability rating for hearing loss is a "mechanical" process of comparing the audiometric evaluation to the numeric designations in the rating schedule. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1993). To evaluate the degree of disability from defective hearing, the rating schedule establishes eleven auditory acuity levels from level I for essentially normal acuity through level XI for profound deafness. 38 C.F.R. § 4.85. To evaluate an individual's level of disability, Table VI is used to assign a Roman numeral designation for hearing impairment based on a combination of the percent of speech discrimination and the puretone threshold average. 38 C.F.R. § 4.85 (b). Table VII is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment for each ear. 38 C.F.R. § 4.85 (e). If impaired hearing is service-connected in only one ear, the nonservice-connected ear is a Roman numeral designation of I. 38 C.F.R. § 4.85(f). If the puretone threshold in each of the specified frequencies of 1000, 2000, 3000, and 4000 Hertz is 55 decibels or more, an evaluation can be based either on Table VI or Table VIa, whichever results in a higher evaluation. 38 C.F.R. § 4.86 (a). When the puretone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz, the Roman numeral designation for hearing impairment will be chosen from either Table VI or Table VIa, whichever results in the higher numeral, and that numeral will then be elevated to the next higher Roman numeral. 38 C.F.R. § 4.86 (b). VA audiology examination findings in May 2016 reveal that the puretone thresholds at 1,000, 2,000, 3,000, and 4,000 Hertz were 40, 45, 50 and 50 decibels in the left ear with an average puretone threshold in the left ear of 36 decibels. Maryland CNC speech recognition score was 90 percent in the left ear. Under Table VI, these findings correspond to a level II hearing in the left ear. 38 C.F.R. § 4.85, Table VI. Under Table VII, this level yields a 0 percent evaluation. 38 C.F.R. § 4.85, Table VII. A July 2019 VA audiology note contains the Veteran's report that he did not like the sound quality of his hearing aid. It also states that audiology findings revealed mild to severe sensorineural hearing loss in the left ear with excellent speech recognition. These findings revealed puretone thresholds at 1,000, 2,000, 3,000, and 4,000 Hertz of 40, 45, 50 and 55 decibels in the left ear. The average puretone threshold in the left ear was 48 decibels. Maryland CNC speech recognition scores were 92 percent in the left ear. The agency of original jurisdiction (AOJ) informed the Veteran in the August 2020 supplemental statement of the case that these results could not be considered since VA requires additional performance intensity function testing when speech recognition testing is 92 percent or less. The AOJ went on to note that even if the findings were considered, they do not objectively demonstrate higher than a noncompensable evaluation for the left ear hearing loss. In this regard, under Table VI, the audiological findings correspond to a level I hearing in the left ear. 38 C.F.R. § 4.85, Tables VI. Under Table VII, these levels yield a 0 percent evaluation. 38 C.F.R. § 4.85, Table VII. An audiology Disability Benefits Questionnaire (DBQ) in October 2019 shows puretone thresholds at 1,000, 2,000, 3,000, and 4,000 Hertz of 65, 55, 60 and 60 decibels in the left ear. The average puretone threshold in the left ear was 60 decibels. Maryland CNC speech recognition scores were 80 percent in the left ear. Under Table VI or Table VIa, these audiological findings correspond to a level IV hearing in the left ear. 38 C.F.R. § 4.85, Tables VI, VIa. Under Table VII, these levels yield a 0 percent evaluation. 38 C.F.R. § 4.85, Table VII. The Veteran reported that the functional impact of his hearing loss was difficulty communicating with his spouse. The Veteran denied at a VA outpatient clinic six-month check-up in October 2019 that there had been any changes in his hearing. An audiology DBQ in November 2019 reveals puretone thresholds at 1,000, 2,000, 3,000, and 4,000 Hertz of 45, 55, 60 and 55 decibels in the left ear. The average puretone threshold in the left ear was 54 decibels. Maryland CNC speech recognition scores were 88 percent in the left ear. Under Table VI, these audiological findings correspond to a level II hearing in the left ear. 38 C.F.R. § 4.85, Tables VI. Under Table VII, these levels yield a 0 percent evaluation. 38 C.F.R. § 4.85, Table VII. The Veteran reported that the functional impact of his hearing loss was that he had to get people to repeat themselves. The Veteran's hearing tests outlined above contain reliable results, and the Veteran has not claimed that his hearing loss has worsened since his last examination, or that his hearing is worse than found upon examination. Moreover, the Board notes that the audiological examination reports noted above describe the effects of the Veteran's hearing impairments on his daily life, consistent with the requirements of Martinak v. Nicholson, 21 Vet. App. 447 (2007). Accordingly, the Board finds that the Veteran's left ear hearing loss does not warrant a higher rating. As the preponderance of the evidence is against an increased schedular rating, the benefit of the doubt rule does not apply. 38 U.S.C.§ 5107(b); see Gilbert Derwinski, 1 Vet. App. 49 (1990). Kristin Haddock Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Shawkey, 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.