Citation Nr: 21005994 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 17-35 939 DATE: February 3, 2021 ORDER Entitlement to an initial compensable rating for bilateral hearing loss is denied. FINDING OF FACT Throughout the period on appeal, the Veteran’s bilateral hearing loss has been manifested by hearing acuity of no worse than Level III in the right ear and Level III in the left ear. CONCLUSION OF LAW The criteria for entitlement to a compensable rating for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1955 to February 1958. This matter comes before the Board of Veterans’ Appeals (Board) from a July 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The case was last before the Board in January 2019 and has returned to the Board for further appellate review. This appeal has been advanced on the Board’s docket pursuant to 38 U.S.C. § 7107(a)(2); 38 C.F.R. § 20.902(c). 1. Entitlement to an initial compensable rating for bilateral hearing loss Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Evaluations of hearing loss range from noncompensable to 100 percent, based upon 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 Hertz. 38 C.F.R. § 4.85, Diagnostic Code 6100. To evaluate the degree of disability from service-connected defective hearing, the rating schedule establishes eleven 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, Diagnostic Code 6100. 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). 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). Each ear is considered separately. The Veteran was afforded a VA audiology examination in July 2015. 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 25 20 35 35 29 76% LEFT 25 15 20 55 29 80% Applying the results to Table VI, the findings yield a numeric designation of Level III in the right ear and Level III in the left ear. Entering the resulting bilateral numeric designation of Level III for the right ear and Level III for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a noncompensable (0 percent) disability rating under Diagnostic Code 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. On VA examination in December 2020, the examiner determined that pure tone threshold testing could not be performed due to poor inter-test and intra-test reliability. The examiner explained that observed communication, speech reception thresholds, speech discrimination scores, and objective measures suggest better hearing than the Veteran’s subjective responses to pure tones. The Veteran’s Maryland CNC Word List speech recognition score was 82 percent in the right ear and 80 percent in the left ear. The Board acknowledges the June 2017 private audiology examination submitted by the Veteran. However, the Board finds this examination inadequate for rating purposes, as the results did not provide the pure tone thresholds at 3000 Hertz, and it is unclear whether the controlled Maryland CNC speech discrimination test was used. Based on a review of the evidence, the Board finds that the valid audiometric testing results do not demonstrate that the Veteran is entitled to a compensable rating for bilateral hearing loss at any time during the period on appeal. The Board expressly acknowledges its consideration of the lay evidence of record when adjudicating this claim, as 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, 3 Vet. App. 345. Accordingly, the preponderance of the most probative evidence of record is against the claim of entitlement to a compensable rating for bilateral hearing loss. In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine does not apply. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). K. A. BANFIELD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Lance, 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.