Citation Nr: 21005883 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 17-02 066 DATE: February 2, 2021 ORDER Entitlement to a compensable rating for left ear hearing loss prior to October 27, 2020 and bilateral hearing loss thereafter is denied. FINDINGS OF FACT 1. The Veteran was granted service connection for right ear hearing loss in a November 2020 rating decision, effective October 27, 2020. 2. Prior to October 27, 2020, the Veteran’s left ear hearing loss is assigned no worse than Level I category hearing. 3. After October 27, 2020, the Veteran’s bilateral hearing loss is assigned no worse than Level I category hearing in both ears. CONCLUSION OF LAW The criteria for entitlement to a compensable rating for left ear hearing loss prior to October 27, 2020 and for bilateral hearing loss thereafter, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 3.383, 3.385, 4.1, 4.2, 4.3, 4.7, 4.85, 4.86, Diagnostic Code (DC) 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from July 1965 to July 1969. Following the Board’s January 2020 remand, service connection for left ear hearing loss, effective October 27, 2020. See November 2020 rating decision. The claim on appeal is as noted on the title page. Entitlement to a compensable rating for left ear hearing loss prior to October 27, 2020 and bilateral hearing loss thereafter. The Veteran contends that his service-connected left ear hearing loss disability warrants a compensable rating. Ratings for service-connected disabilities are determined by comparing the veteran’s symptoms with criteria listed in VA’s Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. Separate diagnostic codes identify the various disabilities. 38 C.F.R. Part 4. When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 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). 38 C.F.R. § 4.85, DC 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. 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). The Veteran was given a VA examination in November 2015. The Veteran reported to the examiner that his hearing has been getting worse the past ten years. The Veteran also reported hazardous noise exposure after military service while firing guns, but the Veteran reported using hearing protection during that activity. During the Veteran’s examination, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 20 15 15 25 LEFT 20 20 35 60 60 Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 96 in the left ear. Average pure tone threshold was 19 in the right ear; 44 in the left ear. 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 (which is also the numeric designation for consideration of the left ear because it was nonservice-connected at this time). 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 noncompensable disability rating under Diagnostic Code 6100. Following the examination, the Veteran was granted service connection for his left ear hearing loss effective August 5, 2014. Service connection for right ear hearing loss was not granted because the hearing loss in that ear did not meet the criteria a disability for VA compensation purposes under 38 C.F.R. § 3.385. The Veteran submitted a statement in December 2016, and he testified at his November 2019 Board hearing. On both occasions, the Veteran stated his service-connected left ear hearing has worsened. Pursuant to the Board’s January 2020 remand the Veteran was given a VA audiological examination in November 2020. The Veteran reported to the VA examiner that he has difficulty understanding conversations as well as phone communication. During the Veteran’s examination, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 30 30 35 35 45 LEFT 30 35 45 50 60 Speech audiometry revealed speech recognition ability of 94 percent in the right ear and of 94 in the left ear. Average pure tone threshold was 36 in the right ear; 48 in the left ear. 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 noncompensable disability rating under Diagnostic Code 6100. The Veteran’s right ear now met the criteria for service connection for VA compensation purposes under 38 C.F.R. § 3.385 and was subsequently granted in a November 2020 rating decision with an effective date of October 27, 2020. Based on the evidence above, a compensable rating for the Veteran’s left ear hearing loss prior to October 27, 2020 and bilateral hearing loss thereafter is not warranted. The Board expressly acknowledges its consideration of the lay evidence of record when adjudicating this claim, including the Veteran’s statements that his hearing loss has increased in severity. 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 Board has considered the reported functional effects of the Veteran’s hearing loss as elicited by the VA examiners and finds they are contemplated by the rating criteria. Martinak v. Nicholson, 21 Vet. App. 447 (2007); Doucette v. Shulkin, 28 Vet. App. 366 (2017). Accordingly, the preponderance of the most probative evidence is against the claim of entitlement to a compensable rating for left ear hearing loss prior to October 27, 2020 and bilateral hearing loss thereafter. 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, 51 (1990). M.E. Larkin Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. G. Perkins, 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.