Citation Nr: 21064510 Decision Date: 10/20/21 Archive Date: 10/20/21 DOCKET NO. 16-54 557 DATE: October 20, 2021 ORDER Entitlement to a compensable rating for bilateral hearing loss is denied. FINDING OF FACT The Veteran's bilateral hearing has been manifested by hearing acuity of no worse than Level I in the right ear and no worse than Level I in the left ear. CONCLUSION OF LAW The criteria for a 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 June 1962 to June 1965. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2012 rating decision issued by the Agency of Original Jurisdiction (AOJ) of the Department of Veterans Affairs (VA). The Board has remanded this appeal for further development several times. Specifically, the case was remanded in December 2018 for a VA audiological evaluation, which was provided in November 2019. The case was remanded again in October 2020 and March 2021 to determine whether the Maryland CNC Test was used by a February 2014 private audiological examiner; and also, to clarify various numerical values for word recognition scores reflected in an April 2014 audiological examination. The examiner who conducted the April 2014 audiological evaluation subsequently replied to the AOJ's request in November 2020, as discussed in more detail below. The AOJ also attempted to contact the clinician who performed the February 2014 audiological examination, but the efforts were unsuccessful. See, e.g., VA letters sent to the Veteran and directly to the clinician, dated in March 2021, May 2021, June 2021, and July 2021. As the directives of the Board's remands have been substantially complied with the case is returned for appellate review. 1. Entitlement to an initial compensable rating for service-connected bilateral hearing loss The Veteran contends that he is entitled to a higher rating for his 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 puretone 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 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). An October 2012 VA examination reveals that the Veteran reported having some trouble hearing when in crowds. 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 puretone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 10 40 55 60 41 96% LEFT 5 20 80 85 48 100% 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 0 percent disability rating under Diagnostic Code 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. A private audiologist examined the Veteran in February 2014 and provided the results. However, it is not clear if the Maryland CNC Test was used in evaluating the Veteran. Several attempts were made to contact the private audiologist to clarify whether the Maryland CNC Test was used, pursuant to Savage v. Shinseki, 24 Vet. App. 259 (2011). However, the clinician did not respond. As it cannot be verified whether speech recognition scores in the February 2014 private audiological evaluation are Maryland CNC, then the audiometric evaluation is not adequate for rating purposes under § 4.85(a). Additionally, an audiologist who conducted an audiological assessment dated in April 2014 was contacted to clarify which numerical value corresponds with its respective Maryland CNC word recognition score, bilaterally. Subsequently, a November 2020 VA medical opinion was provided by the VA audiologist who conducted the April 2014 VA audiological assessment. The audiologist indicated that the puretone and speech results were not adequate for rating purposes because the response reliability was poor. Therefore, the findings in the April 2014 audiological assessment are inadequate for rating purposes, as well. Id. A May 2016 VA examination reveals that the Veteran reported having great difficulty hearing, especially in the presence of background noise, for example in crowds. 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 puretone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 20 45 65 70 50 92% LEFT 10 35 80 90 54 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 0 percent disability rating under Diagnostic Code 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. Another VA examination was provided in April 2017. However, once again, the examination provided unreliable results, and it is not adequate for rating purposes under § 4.85(a). In November 2019, a VA examination reveals that the Veteran again reported having difficulty hearing in background noise. 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 puretone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 25 50 65 70 53 96% LEFT 20 40 70 75 51 94% Applying the results to Table VI, the findings yields 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 0 percent disability rating under Diagnostic Code 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. Based on the evidence above, a compensable rating for the Veteran's bilateral hearing loss is not warranted. The Board expressly acknowledges its consideration of the lay evidence of record when adjudicating this claim, including his complaints of difficulty hearing with background noise. 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. 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). S. L. Kennedy Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Sarah B. Richmond, 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.