Citation Nr: 21008523 Decision Date: 02/17/21 Archive Date: 02/17/21 DOCKET NO. 15-07 043 DATE: February 17, 2021 ORDER An initial compensable disability rating for bilateral hearing loss is denied. FINDING OF FACT The Veteran has Level I hearing loss, bilaterally. CONCLUSION OF LAW The criteria for a compensable disability rating for bilateral hearing loss have not been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 4.1, 4.3-4.14, 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from October 1973 to September 1977. His decorations include the National Defense Service Medal. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a January 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. The RO, in pertinent part, granted service connection and a 0 (zero) percent (noncompensable) rating for left ear hearing loss, effective March 28, 2012. This case was previously before the Board in October 2018, when it was remanded to the agency of original jurisdiction (AOJ) for additional development. In July 2020, after taking further action, the AOJ granted service connection for right ear hearing loss, effective March 28, 2012, and confirmed the prior noncompensable rating for the bilateral disability. There has been at least substantial compliance with the Board’s remand directives. See D’Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to a compensable rating for bilateral hearing loss The Veteran seeks a compensable rating for his service-connected bilateral hearing loss. He contends that his hearing loss warrants a compensable rating due to its effect on his personal environments. Disability evaluations are determined by the application of a schedule of ratings, which is in turn based on the average impairment of earning capacity caused by a given disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the evaluations to be assigned to the various disabilities. If there is a question as to which of two evaluations shall be applied, the higher evaluation 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. If different disability ratings are warranted for different periods of time over the life of a claim, “staged” ratings may be assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). Hearing loss is evaluated under Diagnostic Code 6100. The condition is normally rated on the basis of controlled speech discrimination tests (Maryland CNC), together with the average hearing threshold level measured by puretone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 Hertz. See 38 C.F.R. § 4.85. Ordinarily, the results of these tests are charted on Table VI, as set out in the Rating Schedule, to determine the appropriate Roman numeral designation (I through XI) to be assigned for the hearing impairment in each ear. These numeric designations are then charted on Table VII to determine the rating to be assigned. Id. See, e.g., Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992) (indicating that evaluations of hearing loss are determined by a mechanical application of the rating schedule). However, not all patterns of hearing loss are rated in this manner. For example, if the puretone threshold at each of four specified frequencies, 1000, 2000, 3000, and 4000 Hertz, is 55 decibels or more, the Roman numeral designation for that ear is taken from either Table VI or VIa, whichever results in the higher numeral. 38 C.F.R. § 4.86(a); see also 38 C.F.R. §§ 4.85(c) and 4.86(b) (indicating that alternative methodologies also apply when the examiner certifies that use of the speech discrimination test is not appropriate or when the puretone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz). In this case, the Veteran was afforded a VA audiology examination in December 2012, which produced the following audiometric results, in decibels: HERTZ 1000 2000 3000 4000 Avg RIGHT 15 15 20 30 20 LEFT 15 10 25 40 22 Maryland CNC testing revealed speech recognition ability of 96 percent, bilaterally. Under 38 C.F.R. § 4.85 and Table VI, these results correspond to Level I acuity in both ears. Entering the resulting bilateral numeric designation of Level I for both ears into 38 C.F.R. § 4.85, Table VII, results in a zero percent disability rating under DC 6100. The Veteran argued that the December 2012 examination was administrated incorrectly. Thus, the Board remanded the matter so that he could be afforded a new examination. In July 2019, a new VA audiology examination was administered consistent with the requirements set out at 38 C.F.R. § 4.85(a). Audiometric testing at that time produced the following results, in decibels: HERTZ 1000 2000 3000 4000 Avg RIGHT 20 15 30 40 26.25 LEFT 20 20 35 50 31.25 Maryland CNC testing revealed speech recognition ability of 100 percent, bilaterally. Under 38 C.F.R. § 4.85 and Table VI, these results correspond to Level I acuity in both ears. Entering the resulting bilateral numeric designation of Level I for both ears into 38 C.F.R. § 4.85, Table VII, results in a zero percent disability rating under DC 6100. The Board has considered the provisions of 38 C.F.R. § 4.86, governing exceptional patterns of hearing impairment. However, none of the available evidence reflects that the Veteran has puretone thresholds of 55 decibels or more at 1000, 2000, 3000, and 4000 Hertz each in either ear. Nor does it reflect that he has ever had a puretone threshold of 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz in either ear. Therefore, the provisions of 38 C.F.R. § 4.86 are not applicable. See 38 C.F.R. § 4.86(a), (b). There are no other audiometric findings included in the treatment records during the appeal period that would warrant a higher rating. According to an April 2012 audiology evaluation, the Veteran registered an average puretone threshold of 20 decibels in the right ear and 21 decibels in the left ear with speech discrimination scores of 96 percent bilaterally. The corresponding Hearing Evaluation Report suggests no exceptional pattern of hearing impairment. See April 2012 Audiogram. Neither does the December 2012 audiology examination support a higher rating. The Board acknowledges the lay evidence of record, including the Veteran’s assertions of increased difficulty in clearly hearing and understanding people speaking to him. He is competent to report difficulty with his hearing; however, as noted, 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 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 an inability to clearly hear others, which is what is contemplated by the rating assigned. See Rossy v. Shulkin, 29 Vet. App. 142, 145 (2017). A higher rating can be awarded only when loss of hearing has reached a specified measurable level. After review of the record, the Board finds that the preponderance of the evidence is against the assignment of a compensable rating under the Schedule. In reaching this conclusion, the Board has considered the doctrine of reasonable doubt. However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not for application. 38 C.F.R. §§ 4.3, 4.7; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The appeal must be denied. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Joseph T. Leonard, Law Clerk 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.