Citation Nr: 21010658 Decision Date: 02/25/21 Archive Date: 02/25/21 DOCKET NO. 15-13 905 DATE: February 25, 2021 ORDER Entitlement to an initial compensable evaluation for bilateral hearing loss is denied. FINDING OF FACT The Veteran’s hearing acuity, at worse, has been measured at Level II in both ears. CONCLUSION OF LAW The criteria for the assignment of a compensable rating for bilateral hearing loss have not been met. 38 U.S.C.§§ 1155, 5107; 38 C.F.R. § 4.85, Diagnostic Code 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1980 to January 1987. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in August 2018. A transcript of the hearing is of record. This matter was last before the Board in May 2020, when it was remanded for further development. Entitlement to an initial compensable evaluation for bilateral hearing loss 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).   On a VA audiological examination in September 2013 the Veteran reported difficulty hearing. His Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: Sept. 2013 HERTZ 1000 2000 3000 4000 Avg CNC % RIGHT 10 20 35 40 26 96 LEFT 15 35 35 45 33 100 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 both ears to 38 C.F.R. § 4.85, Table VII, equates to a noncompensable (0 percent) percent disability rating under Diagnostic Code 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. On a VA examination in December 2020, the Veteran reported being unable to hear well. His Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: Dec. 2020 HERTZ 1000 2000 3000 4000 Avg CNC % RIGHT 10 20 60 70 40 88 LEFT 20 35 80 90 56 86 Applying the results to Table VI, the findings yield a numeric designation of Level II in the right ear and Level II in the left ear. Entering the resulting bilateral numeric designation of Level II for both ears to 38 C.F.R. § 4.85, Table VII, equates to a noncompensable (0 percent) percent disability rating under Diagnostic Code 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. The Board does acknowledge that the claims file contains an August 2018 private audiogram report. However, the report is in graph form and not acceptable for rating purposes. See 38 C.F.R. § 4.85(a). Regardless, interpretation of those graphic results appears to show puretone thresholds consistent with or better than puretone thresholds on the 2020 VA examination. The audiologist indicated the Veteran’s speech recognition scores using the Maryland CNC were 100 percent in the right ear and 92 percent in the left ear. Thus, even if the audiological findings could be accepted for rating purposes, the results would still warrant a noncompensable rating. The Board expressly acknowledges its consideration of the lay evidence of record when adjudicating this claim, including buddy statements and the Veteran’s reports during VA examinations of difficulty understanding speech, especially around noise and difficulty when not facing a speaker, as well as contentions during his hearing that he warrants a higher rating. See Martinak v. Nicholson, 21 Vet. App. 447 (2007). 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 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 reduced hearing acuity and clarity, which is what is contemplated in the rating assigned. See Rossy v. Shulkin, 29 Vet. App. 142, 145 (2017). Accordingly, the preponderance of the most probative evidence is against the claim and a compensable rating for hearing loss is denied. 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 (1990). K. A. BANFIELD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Asare, 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.