Citation Nr: 21008501 Decision Date: 02/17/21 Archive Date: 02/17/21 DOCKET NO. 19-34 962 DATE: February 17, 2021 ORDER A compensable rating for bilateral hearing loss is denied. FINDING OF FACT The Veteran’s bilateral hearing loss is manifested by hearing acuity of no worse than Level I in each ear. CONCLUSION OF LAW The criteria for a compensable rating for bilateral hearing loss are not 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 in the United States Air Force with active duty from August 1959 to August 1979. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2018 rating decision. The Board remanded the claim in March 2020 to obtain a medical examination. The Veteran was scheduled for a VA examination in accordance with the March 2020 Board remand; however, the Veteran cancelled the exam in August 2020 and did not reschedule nor provide good cause for cancelling. See 38 C.F.R. § 3.655. As a result, the Board finds that there has been substantial compliance with the remand directives. Stegall v. West, 11 Vet. App. 268 (1998). Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. Evaluations of defective hearing range from 0 to 100 percent. This is based on impairment of hearing acuity as measured by the results of controlled speech discrimination tests, together with the average hearing threshold level as measured by pure tone audiometric tests in frequencies of 1000, 2000, 3000, and 4000 Hertz. To evaluate the degree of disability from service-connected hearing loss, the rating schedule establishes eleven auditory acuity levels ranging from numeric Level I for essentially normal acuity, through numeric Level XI for profound deafness. 38 C.F.R. § 4.85, Tables VI and VII, DC 6100. Table VI in 38 C.F.R. § 4.85 is used to determine the numeric designation of hearing impairment based on the pure tone threshold average from the speech audiometry test and the results of the Maryland CNC speech discrimination test. The vertical lines in Table VI represent nine categories of the percentage of discrimination based on the controlled speech discrimination test. The horizontal columns in Table VI represent categories of decibel loss based on the pure tone audiometry test. The numeric designation of impaired hearing (Levels I through XI) is determined for each ear by intersecting the vertical row corresponding to the percentage of discrimination and the horizontal column corresponding to the pure tone decibel loss. 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. Each ear will be evaluated separately. The percentage evaluation is derived from Table VII in 38 C.F.R. § 4.85 by intersecting the vertical column corresponding to the numeric designation for the ear having the better hearing acuity and the horizontal row corresponding to the numeric designation level for the ear having the poorer hearing acuity. The Veteran was assigned a noncompensable rating for his bilateral hearing loss in a March 2020 rating decision. The Veteran contends he is entitled to a higher rating. VA audiometric testing in July 2018 revealed the following: HERTZ 1000 2000 3000 4000 Avg RIGHT 40 50 45 45 45 LEFT 15 25 35 45 30 Speech recognition was 98 percent bilaterally. Applying the results of the July 2018 VA examination to Table VI reflects that the Veteran has Level I hearing loss bilaterally. These results when applied to Table VII result in a noncompensable disability rating. 38 C.F.R. § 4.85. Based on the above audiometric test results and a mechanical application of the rating criteria, the Board finds that the Veteran is not entitled to a compensable rating for his bilateral hearing loss. The Board expressly acknowledges its consideration of the lay evidence of record when adjudicating this claim. 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). Accordingly, the preponderance of the evidence is against finding a compensable rating for the Veteran’s bilateral hearing loss is proper. Because the preponderance of the evidence is against this claim, the benefit-of-the-doubt rule does not apply. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. As such, the claim for a rating greater than 10 percent for bilateral hearing loss is denied. JOHN Z. JONES Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Jorge Barroso, 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.