Citation Nr: 21065071 Decision Date: 10/25/21 Archive Date: 10/25/21 DOCKET NO. 17-36 050 DATE: October 25, 2021 ORDER Entitlement to an increased compensable evaluation for a left ear hearing loss disability from June 5, 2020 is denied. FINDING OF FACT From June 5, 2020, the Veteran's speech discrimination test results and hearing thresholds in the left ear did not meet the criteria for a compensable rating. CONCLUSION OF LAW The criteria for entitlement to a compensable evaluation for a left ear hearing loss disability from June 5, 2020 have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.7, 3.321, 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from July 1977 to July 1980. This appeal comes to the Board of Veterans' Appeals (Board) from a rating decision dated March 2017 issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran timely appealed. The Veteran's appeal has previously been before the Board. In March 2021, the Board adjudicated the increased rating claim for hearing loss prior to June 5, 2020, and remanded the Veteran's claim for a compensable rating from June 5, 2020 to the Agency of Original Jurisdiction (AOJ) for additional development. A Board video hearing was held in September 2020 with the undersigned Judge. The hearing transcript has been associated with the Veteran's file. Increased Rating In evaluating service-connected hearing loss, disability ratings are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are performed. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992); 38 C.F.R. § 4.85. Evaluations of bilateral defective hearing 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 pure tone audiometric tests at the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hertz). To evaluate the degree of disability from bilateral defective hearing, the rating schedule establishes 11 auditory acuity levels designated from Level I, for essentially normal acuity, through Level XI, for profound deafness. Id. When the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VI(a), whichever results in the higher numeral. Each ear will be evaluated separately. See 38 C.F.R. § 4.86(a). Similarly, if the puretone threshold is 30 decibels or less at 1000 Hz, and 70 decibels or more at 2000 Hz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VI(a), whichever results in the higher numeral, and that numeral will be elevated to the next higher Roman numeral. 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 non-service-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). Lastly, the Board must also assess the competence and credibility of lay statements and testimony. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). In increased rating claims, a Veteran's lay statements alone, absent a negative credibility determination, may constitute competent evidence of worsening, at least with respect to observable symptoms. See Vazquez-Flores v. Shinseki, 24 Vet. App. 94, 102 (2010). Entitlement to an increased compensable evaluation for a left ear hearing loss disability from June 5, 2020 The Board finds that at no time from June 5, 2020 has the Veteran's left ear hearing loss disability warranted the assignment of a compensable rating. During the Veteran's September 2020 hearing, she testified that her hearing had probably gotten a little bit worse since her most recent audiogram on June 4, 2020. See Hearing Transcript dated September 2020. She stated, "I have had a lot of hearing problems, especially in group conversations, I hear a lot of mumbling, or it is not loud enough, possibly due to everything that the firing, the shooting being military police, TCP...and the tanks and the track, lot of loud noises." She also noted that the hearing loss affected almost everything in her life. Sometimes, she went to buy something and could not hear what the individual at the store was saying. She had to ask people to repeat themselves. She had to do that at least three times until her husband would repeat back to her what was said. As the Veteran had testified that her left ear hearing loss disability had worsened since her last audiological examination, the Board remanded the Veteran's claim in March 2021 to provide her with a new VA examination to ascertain the current severity and manifestations of the disability. Thereafter, the Veteran was provided a VA audiological examination in April 2021. This examination revealed puretone thresholds, in decibels, as follows: HERTZ 1000 2000 3000 4000 AVG LEFT 15 15 20 35 21.25 The VA examiner additionally administered the Maryland CNC word list pursuant to VA regulations. See 38 C.F.R. § 3.485. The Veteran attained 94 percent in the left ear. These audiometric findings equate to Level I hearing loss in the left ear under Table VI. Applying these results to Table VII results in a noncompensable (0 percent) rating. 38 C.F.R. § 4.85, Tables VI and VII. The Veteran reported trouble hearing others speaking clearly, trouble hearing conversations, and trouble hearing coworkers. Martinak v. Nicholson, 21 Vet. App. 447 (2007). A review of the audiological examination of record does not support the assignment of an increased rating for the Veteran's left ear hearing loss disability. From June 5, 2020, findings are consistent with a noncompensable disability evaluation. More severe hearing impairment is required for a compensable disability rating under VA regulations. The Board expressly acknowledges its consideration of the lay evidence of record when adjudicating this claim, including difficulty hearing in groups, having to ask others to repeat themselves, and difficulty hearing coworkers. While the Veteran is competent as a lay person to report difficulty hearing, 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 Veteran is not competent to assign puretone threshold findings or speech recognition scores to her perceived hearing impairment because the assignment of such findings requires medical training and expertise which the Veteran is not shown to possess. Thus, the Board places greater probative weight on the audiometric findings recording in the various examinations during the course of the appeal. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). 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). Although the Veteran is entitled to the benefit of the doubt where the evidence is in approximate balance, the benefit of the doubt doctrine is inapplicable where, as here, the preponderance of the evidence is against the claim for entitlement to an increased rating for a left ear hearing loss disability from June 5, 2020. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The claim is denied. LAURA E. COLLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Minock 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.