Citation Nr: 21065256 Decision Date: 10/25/21 Archive Date: 10/25/21 DOCKET NO. 17-14 156A DATE: October 25, 2021 ORDER Entitlement to an initial compensable evaluation for left ear hearing loss is denied. FINDING OF FACT The Veteran's left ear hearing has been manifested by hearing acuity of no worse than Level I in the right ear and no worse than Level II in the left ear for the entire period on appeal. CONCLUSION OF LAW The criteria for a compensable rating for left ear 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 in the United States Army from November 1984 to March 1993. This appeal was last before the Board in May 2021 when it was remanded for a VA examination to ascertain the severity of the Veteran's left ear hearing loss and a VA medical opinion regarding the Veteran's claim for service connection for Meniere's disease. As these examinations have been provided, the appeal is ready for appellate review. Stegall. v. West, 11 Vet. App. 268 (1998). Of note, the claim for service connection for Meniere's was granted in a September 2021 rating decision. As that represents a full grant of the benefit sought, this issue is no longer on appeal before the Board. In January 2021 the Veteran testified before the undersigned Veterans Law Judge (VLJ) in a Virtual Board Hearing. A transcript of that proceeding has been prepared and is associated with the file. 1. Entitlement to an initial compensable evaluation for left ear hearing loss The Veteran asserts that her hearing disability warrants a higher rating than the noncompensable rating currently assigned. Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Disability ratings for hearing loss disability are derived from 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 schedule establishes 11 auditory hearing impairment levels based upon average pure tone thresholds and speech discrimination. 38 C.F.R. § 4.85. An examination for hearing impairment for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a pure tone audiometry test. Examinations will be conducted without the use of hearing aids. 38 C.F.R. § 4.85(a). Table VI, "Numeric Designation of Hearing Impairment Based on Puretone Threshold Average and Speech Discrimination," is used to determine a Roman numeral designation (I through XI) for hearing impairment based on a combination of the percent of speech discrimination (horizontal rows) and the pure tone threshold average (vertical columns). The Roman numeral designation is located at the point where the row and column intersect. 38 C.F.R. § 4.85(b). Table VIa, "Numeric Designation of Hearing Impairment Based Only on Puretone Threshold Average," is used to determine a Roman numeral designation (I through XI) for hearing impairment based only on pure tone threshold average. Table VIa is used when the examiner certifies that the use of the speech discrimination test is not appropriate due to language difficulties, inconsistent speech discrimination scores, etc., or when indicated under the provisions of § 4.86. 38 C.F.R. § 4.85(c). "Pure tone threshold average" as used in Tables VI and VIa is the sum of the pure tone thresholds at 1000, 2000, 3000 and 4000 Hertz and divided by four. This average is used in all cases (including those of § 4.86) to determine a Roman numeral designation from Tables VI and VIa. 38 C.F.R. § 4.85(d). Table VII, "Percentage Evaluations of Hearing Impairment," is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment in each ear. The horizontal rows represent the ear having better hearing and the vertical columns represent the ear having the poorer hearing. The percentage evaluation is located at the point where the row and the column intersect. 38 C.F.R. § 4.85(e). Provisions for evaluating exceptional patterns of hearing impairment are as follows: (a) When the pure tone 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 VIa, whichever results in the higher numeral. Each ear will be evaluated separately. (b) When the pure tone thresholds are 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; the numeral will then be elevated to the next higher Roman numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. at 465. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. at 308-10. Turning to the medical evidence of record, the Veteran has been afforded two VA audiological examinations. On the authorized audiological evaluation in December 2014, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 20 25 25 25 LEFT 30 25 35 45 50 Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 82 percent in the left ear. The pure tone threshold average for the right ear is 24, rounded up to 25, and for the left ear, 39, rounded up to 40. On the authorized audiological evaluation in July 2021, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 35 30 35 35 30 LEFT 50 50 45 50 55 Speech audiometry revealed speech recognition ability of 100 percent in the right ear and of 94 percent in the left ear. The pure tone threshold average for the right ear is 33, rounded up to 35, and for the left ear 50. Based on the average pure tone threshold findings from the VA examinations, when applying Table VII, Diagnostic Code 6100, the findings equate to a noncompensable disability evaluation for each audiological evaluation. As noted above, the rating criteria for hearing loss is a mechanical application of Table VI values to Table VII. Here, in both of the VA audiological examinations, the Veteran's left ear disability corresponds to no higher than Roman numeral II and her right ear corresponds to Roman numeral I, resulting in a noncompensable evaluation. See Table VII, Percentage Evaluations of Hearing Impairment, DC 6100. The Board is cognizant that the Veteran is competent to attest to things she experiences through her senses, such as decreased hearing acuity. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Veteran's statements and testimony are competent evidence to report her increased audiological symptoms because this requires only personal knowledge as it comes to her through her senses. Layno v. Brown, 6 Vet. App. 465, 469, 470 (1994). She is also credible in her belief that she is entitled to a compensable evaluation for her left ear hearing loss. However, the more probative evidence of record, as seen in the audiological testing described above, does not show that the assignment of an initial compensable rating for her left ear hearing loss is warranted. 38 C.F.R. § 4.85; Diagnostic Code 6100. Accordingly, the appeal for an initial compensable rating for the Veteran's service-connected left ear hearing loss must be denied. T. REYNOLDS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Nelson 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.