Citation Nr: 21006029 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 16-35 506 ORDER Entitlement to a compensable initial rating for bilateral hearing loss is denied. FINDING OF FACT Throughout the appeal, the Veteran’s service-connected hearing loss been manifested by no worse than a Level II in the right ear and Level I in the left ear. CONCLUSION OF LAW The criteria for an initial compensable rating for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.385, 4.1, 4.3, 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served active duty in the United States Army from September 1974 to September 1977. This matter comes to the Board of Veterans’ Appeals (Board) on appeal of an April 2016 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO) in Huntington, WV, which granted service connection for bilateral hearing loss. The Veteran appealed the initial rating assigned. In July 2019, the Veteran presented testimony in a videoconference hearing before the undersigned Veterans Law Judge. A copy of the transcript has been associated with the claims folder. In November 2019, the Board remanded the issue on appeal for additional development, and the case has since been returned for further appellate review. A remand by the Board confers on the claimant a legal right to substantial compliance with the remand order. Stegall v. West, 11 Vet. App. 268 (1998). The Board’s remand directed the RO to provide the Veteran with audiological testing to assess the severity of his service-connected disability. The Veteran was provided an examination in August 2020, as such, substantial compliance has been achieved. Id. at 271. 1. Entitlement to a compensable initial rating for bilateral hearing loss Service connection was established for bilateral hearing loss, effective in November 2015, at a non-compensable rating level. The Veteran appealed the initial rating, and generally contends that his hearing was worse than evaluated. 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, Diagnostic Code 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. 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). In conjunction with the original claim for service connection, the Veteran underwent audiological testing in April 2016. The results were as follows: 4/12/2016 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 15 10 55 55 34 90% LEFT 15 15 30 45 26 92% Applying the results to Table VI, the findings yield a numeric designation of Level II in the right ear and Level I in the left ear. Entering these results in 38 C.F.R. § 4.85, Table VII, equates to a zero percent (0%) disability rating under Diagnostic Code 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown in either ear. Following the Board’s remand, the Veteran was provided a VA examination in August 2020 to assess any increase in severity. The examiner reported the Veteran has a functional impact of trouble hearing and understanding others. See 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: 8/27/2020 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 15 10 60 55 35 96% LEFT 15 20 55 55 36 96% Applying the results to Table VI, the findings yield a numeric designation of Level I in both ears. Entering these results in Table VII continues to equate to a zero percent (0%) disability rating under Diagnostic Code 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown in either ear. Based on the evidence above, a compensable rating for the Veteran’s bilateral hearing loss is not warranted at any time during the appeal period. The Board expressly acknowledges its consideration of the lay evidence of record when adjudicating this claim, including the Veteran’s belief his hearing loss is more severe than rated. And, the Board does not doubt the sincerity of the Veteran’s statements or deny that he is in fact service-connected for hearing loss. The functional impact that the Veteran describes, however, is contemplated by the rating criteria. Doucette v. Shulkin, 28 Vet. App. 366 (2017). By regulation, the severity must first reach a certain level before it is considered a compensable disability. His hearing loss has not yet reached that point. Accordingly, the preponderance of the most probative evidence is against the claim of entitlement to a compensable rating for hearing loss. A such, the benefit of the doubt doctrine does not apply. Bethany L. Buck Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T.N. Chapman, 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.