Citation Nr: 21069349 Decision Date: 11/18/21 Archive Date: 11/18/21 DOCKET NO. 19-31 021 DATE: November 18, 2021 ORDER Entitlement to an initial compensable disability rating for bilateral hearing loss is denied. FINDING OF FACT Throughout the appeal period, the Veteran's bilateral hearing loss has been manifested by, at worst, Level I hearing acuity in the right ear and Level I hearing acuity in the left ear. CONCLUSION OF LAW The criteria for entitlement to an initial compensable disability rating for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.3, 4.7, 4.85, 4.86, Diagnostic Code (DC) 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably on active duty from July 1966 to July 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2018 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). By way of history, this claim was previously before the Board in May 2020, at which time it was remanded to the Agency of Original Jurisdiction (AOJ) for further evidentiary development. In consideration of this appeal, the Board finds that there has been substantial compliance with the May 2020 remand directives and will proceed with appellate review. Entitlement to an initial compensable disability rating for bilateral hearing loss is denied. The Veteran contends that he should be awarded an initial compensable disability rating for his service-connected bilateral hearing loss from April 24, 2018, the date of receipt for the claim for service connection. Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 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 the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Ratings of hearing loss range from non-compensable to 100 percent based on organic impairment of hearing acuity as measured by the results of speech discrimination tests combined with the average hearing threshold levels as measured by pure tone audiometry tests in the frequencies 1000, 2000, 3000, and 4000 cycles per second. To rate the degree of disability for service-connected hearing loss, the Rating Schedule has established 11 auditory acuity levels, designated from Level I, for essentially normal acuity, through Level XI, for profound deafness. 38 C.F.R. § 4.85(h), Table VI. To establish entitlement to a rating for hearing loss, it must be shown that certain minimum levels of the combination of the percentage of speech discrimination loss and average pure tone decibel loss are met. The assignment of disability ratings for hearing impairment is derived by a mechanical application of the Rating Schedule to the numeric designations assigned after audiometric evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). The criteria for rating hearing impairment use controlled speech discrimination tests (Maryland CNC) together with the results of pure tone audiometry tests. These results are then charted on Table VI, Table VIA in exceptional cases as described in 38 C.F.R. § 4.86, and Table VII, as set out in the Rating Schedule. 38 C.F.R. § 4.85. An exceptional pattern of hearing loss occurs when the pure tone threshold at 1000, 2000, 3000, and 4000 Hertz is 55 decibels or more, or when the pure tone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz. 38 C.F.R. § 4.86. Applying the rating criteria to the facts of this case, the Board finds that the criteria for an initial compensable rating have not been met. The evidence establishes that throughout the appeal period, the Veteran's service-connected bilateral hearing loss was manifested by Level I hearing acuity in both the right and left ears, at its wo First, the Veteran submitted a private audiological report from August 2018 in conjunction with his claim for service connection. However, the August 2018 private audiological evaluation is not sufficient for VA rating purposes. Pursuant to 38 C.F.R. § 4.85(a), 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. The August 2018 private audiogram contains a speech discrimination section but does not specify which word lists have been used during the evaluation. As stated above, VA regulations require that the use of a Maryland CNC word list for speech discrimination testing. Furthermore, the report does not show an exceptional pattern of hearing loss such that hearing loss would be permitted to be rated without the CNC test. Therefore, the results of the August 2018 private audiological evaluation cannot be used for VA rating purposes. Turning to the other evidence of record, the Veteran was first afforded a VA examination May 2018. The Veteran's pure tone thresholds for the right ear were 40, 40, 40, and 45 decibels at 1000, 2000, 3000, and 4000 Hertz, respectively. This averages to 41. Pure tone thresholds for the left ear were 45, 50, 45, and 60 decibels at 1000, 2000, 3000, and 4000 Hertz, respectively. This averages to 50. Speech discrimination scores, using the Maryland CNC word list, were 96 percent for both the right and left ears. These audiological findings show Level I hearing acuity in the right ear, as well as Level I hearing acuity in the left ear under Table VI. Applying the percentage ratings for hearing impairment found in Table VII, the May 2018 VA audiogram results correspond to a 0 percent, or non-compensable, disability rating. See 38 C.F.R. § 4.85. Most recently, the Veteran was afforded another VA examination in November 2020, after he had contended that his bilateral hearing loss had worsened. During this examination, the Veteran's pure tone thresholds for the right ear were 45, 45, 40, and 50 decibels at 1000, 2000, 3000, and 4000 Hertz, respectively. This averages to 45. Pure tone thresholds for the left ear were 45, 40, 50, and 70 decibels at 1000, 2000, 3000, and 4000 Hertz, respectively. This averages to 51. Speech discrimination scores, again using the Maryland CNC word list, were 96 percent for the right ear and 96 percent for the left ear. These audiological findings continue to show Level I hearing acuity in the right ear as well as Level I hearing acuity in the left ear under Table VI. Applying the percentage ratings for hearing impairment found in Table VII, the November 2020 VA audiogram results again correspond to a non-compensable disability rating. 38 C.F.R. § 4.85. The Board has considered the Veteran's symptomology and functional impact. The Veteran's complaints of increased hearing difficulty have been considered under the numerical criteria set forth in the rating schedule, which take into consideration such impacts. In short, the rating criteria reasonably describe the Veteran's disability levels and symptomatology. The Board in no way discounts the difficulties that the Veteran experiences because of his bilateral hearing loss. However, it must be emphasized, as previously noted, that the disability ratings for hearing impairment are derived by a mechanical application of the rating schedule to numeric designation assigned after audiometry results are obtained. The hearing loss must become more severe before it is considered a compensable disability for VA purposes. The Board must base its determination on the results of the pertinent audiological evaluations of record. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). In other words, the Board is bound by law to apply VA's rating schedule based on the Veteran's audiometry results. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Under these circumstances, the Board finds that the record has presented no basis for the initial assignment of a compensable disability rating for the Veteran's service-connected bilateral hearing loss. Accordingly, the claim is denied. Absent a relative balance of the evidence for and against the claim, the evidence is not in equipoise and the benefit-of-the-doubt doctrine does not apply. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Bethany L. Buck Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. M. Lowman, 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.