Citation Nr: 21077594 Decision Date: 12/30/21 Archive Date: 12/30/21 DOCKET NO. 17-10 731 DATE: December 30, 2021 ORDER Entitlement to an initial compensable disability rating for bilateral hearing loss is denied. FINDING OF FACT The Veteran's bilateral hearing loss manifested by hearing acuity of no worse than Level II in the right ear and no worse than Level III in the left ear. CONCLUSION OF LAW The criteria for an initial compensable disability 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 (DC) 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1955 to April 1959. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge in January 2021. A transcript of that hearing has been associated with the claims file. The issue was previously before the Board in March 2021 when it was remanded for further development. The Board notes that the issues of entitlement to a right and left leg disability were also remanded in March 2021. However, in a subsequent August 2021 rating decision, the RO granted service connection for right and left status post total knee replacements. As this represents a full grant of the benefits sought, there remains no justiciable case or controversy on appeal and the issues of entitlement to service connection for a right and left leg disability are no longer before the Board. Entitlement to an initial compensable disability rating for bilateral hearing loss The Veteran contends that his bilateral hearing loss is more severe than what is represented by the current noncompensable disability rating. 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 pure tone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hertz). To evaluate the degree of disability from 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. An exceptional pattern of hearing impairment occurs when the pure tone 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 pure tone 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). The Veteran was provided with a VA hearing loss examination in June 2016 where he reported "problems hearing on the phone," and not being able to distinguish what is being said with 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 pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 35 40 55 60 48 92% LEFT 40 35 50 55 45 84% Applying the results to Table VI, the findings yield a numeric designation of Level I in the right ear and Level II in the left ear. Entering the resulting bilateral numeric designation of Level I for the right ear and Level II for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a noncompensable disability rating under DC 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. VA treatment records associated with the claims file document the assignment, follow-up, calibration, and maintenance of the Veteran's hearing aids. In this regard, the Board notes that the Veteran was seen for a hearing aid fitting in November 2019 where the expectations, limitations, and benefits of hearing aids were explained to the Veteran. In December 2019, the Veteran reported that his left hearing aid stopped working about a month ago. The hearing aids were serviced and cleaned. A soundcheck revealed good subjective sound quality. In summary, while the Veteran's audiology treatment records document the assignment and maintenance of his hearing aids, these records do not document a worsening of the Veteran's hearing loss or that audiometric testing was conducted while his hearing aids were serviced. The Veteran was provided with another VA hearing loss examination in June 2021 where he reported difficulty with background noise, needing people to repeat themselves, needing to face a person speaking, and needing turn up the volume on the television and radio. 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 pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 40 45 50 55 47.5 84% LEFT 40 40 50 60 47.5 80% Applying the results to Table VI, the findings yield a numeric designation of Level II in the right ear and Level III in the left ear. Entering the resulting bilateral numeric designation of Level II for the right ear and Level III for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a noncompensable disability rating under DC 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. The Board notes that the Veteran's claims file includes a private audiological examination from September 2021. However, the examination report does not show that the Maryland CNC test was used. Rather, the report indicates that the NU-6 test was used. Under 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 puretone audiometry test. Thus, the audiological evaluation is not adequate for rating purposes. See Savage v. Shinseki, 24 Vet. App. 259, 263-64 (2011). Based on the evidence above, a compensable rating for the Veteran's bilateral hearing loss is not warranted. 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 Board expressly acknowledges its consideration of the lay evidence of record when adjudicating this claim, including the Veteran's reports of difficulties hearing with background noise and difficulty hearing over the phone, television, and radio. 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). (Continued on the next page) Accordingly, the preponderance of the evidence is against the claim of entitlement to an initial compensable disability rating for bilateral 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). M. Donohue Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Morrad, 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.