Citation Nr: 21011583 Decision Date: 03/02/21 Archive Date: 03/02/21 DOCKET NO. 16-35 698 DATE: March 2, 2021 ORDER Entitlement to a compensable rating for bilateral hearing loss is denied. FINDINGS OF FACT 1. Throughout the initial rating period, the Veteran’s hearing impairment has not reached the level for which assignment of a compensable rating is warranted with the application of the rating schedule to the numeric designations resulting from audiometric testing. 2. The Veteran’s bilateral hearing loss has been manifested by hearing acuity of no worse than Level IV in the right ear and no worse than Level II in the left ear. CONCLUSION OF LAW The criteria for a compensable rating for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from December 1967 to September 1971. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In March 2019, the Veteran testified before the undersigned Veterans Law Judge. A transcript of the proceeding has been associated with the claims file. This matter was previously before the Board in August 2019, at which time it was remanded for additional development. That development having been completed; this claim is once again before the Board. The Veteran contends that he is entitled to a compensable rating because he believes his hearing loss has worsened. Disability evaluations are determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. In appeals of initial ratings, the Board must consider whether “staged ratings” are warranted. See Fenderson v. West, 12 Vet. App. 119 (1999). 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). A July 2015 VA examination revealed the following puretone thresholds in decibels, together with the results of the Maryland CNC Word List speech recognition score: July 2015 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 35 40 65 70 52.5 80% LEFT 35 40 70 75 55 86% Applying the results to Table VI, the findings yield a numeric designation of Level IV in the right ear and Level II in the left ear. Entering the resulting bilateral numeric designation of Level Iv for the right ear and Level II for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a 0 percent disability rating under Diagnostic Code 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. The Veteran’s private treatment records from a private audiologist noted bilateral hearing loss in a report from April 2019. However, an examination for hearing impairment for VA purposes must include a controlled speech discrimination test (Maryland CNC) and a puretone audiometry test. 38 C.F.R. § 4.85(a). This private examination does not meet the criteria for an adequate examination as defined by VA regulation, as the examination did not specify if the Maryland CNC speech discrimination test was used. Additionally, there was no narrative portion of the report with discussion of the functional impact the Veteran’s hearing loss has on his life. This private audiology report, therefore, cannot be used in this analysis. The Board need not seek clarification of the audiometric data in this report as there is credible evidence contemporaneous to the private audiologist’s findings as discussed below. See Savage v. Shinseki, 24 Vet. App. 259 (2011). A December 2019 VA examination reveals that the Veteran reported difficulty hearing people speaking when they were not looking at him, as well as being unable to hear sounds like he used to. 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: December 2019 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 25 40 65 70 50 88% LEFT 35 40 70 75 55 88% 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 the right ear and Level II for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a 0 percent disability rating under Diagnostic Code 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. Based on the evidence above, a compensable rating for the Veteran’s bilateral hearing loss is not warranted. The Board expressly acknowledges its consideration of the lay evidence of record when adjudicating this claim, including the Veteran’s testimony that he cannot hear people when two people are speaking at the same time, and that he has difficulty understanding people when they speak to him unless he is looking right at them. 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 of entitlement to a compensable rating for hearing loss. 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). MICHAEL E. KILCOYNE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board V. Geer, 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.