Citation Nr: 21011961 Decision Date: 03/03/21 Archive Date: 03/03/21 DOCKET NO. 19-17 696 DATE: March 3, 2021 ORDER Entitlement to a compensable rating for service-connected bilateral hearing loss is denied. FINDING OF FACT The Veteran’s bilateral hearing loss has been manifested by hearing acuity of no worse than Level III 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 FINDING AND CONCLUSION The Veteran had active service from January 1955 to December 1958. This matter comes before the Board of Veterans’ Appeals (Board) from an October 2018 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In August 2019, the Veteran provided testimony via videoconference before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims file. In December 2019 and December 2020, the Board remanded this matter for additional development, which has been substantially completed. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Entitlement to a compensable rating for service-connected bilateral hearing loss is denied. The Veteran contends that he is entitled to a higher rating because his hearing loss is too great to warrant the noncompensable rating. See Notice of Disagreement (NOD), November 2018. On his June 2019 VA Form 9, the Veteran stated that his family complained about the television being too loud and that he could not hear when he was spoken to. In a September 2019 letter from the Veteran’s spouse, she stated that the Veteran increased the volume on the television and car radio, talked loudly on the telephone, and had trouble hearing her during telephone conversations. The Veteran’s son, daughter, and granddaughter submitted witness statements attesting to the Veteran’s hearing loss, including his difficulty hearing in-person and telephone conversations, trouble hearing the television, and inability to hear the doorbell. 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). An October 2018 VA examination report reveals that the Veteran reported that he could not hear the television. 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: Oct 2018 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 30 35 35 40 35 100 LEFT 25 45 45 45 40 96 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 the right ear and Level I for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a zero 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 submitted a private audiogram that was completed in September 2019. As noted in the Board’s December 2019 remand, the private evaluation is inadequate for rating purposes because the Veteran’s hearing acuity was not tested at 3000 Hz. See 38 C.F.R. § 4.85. Of record is a December 2019 private examination. The Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: Dec 2019 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 55 60 65 65 61 88 LEFT 60 70 65 70 66 92 Applying the results to Table VI, the findings yield a numeric designation of Level III in the right ear and Level II in the left ear. Entering the resulting bilateral numeric designation of Level III for the right ear and Level II for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a zero percent disability rating under Diagnostic Code 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. A VA examination was conducted in August 2020; however, the examiner found that the results were not valid due to inconsistency with the Veteran’s known pathology, and as such, did not record any pure tone threshold results or speech recognition scores. As noted in the December 2020 Board remand, the examination report is inadequate for rating purposes because the examiner did not explain why that inconsistency was significant enough that the results should not be considered valid. A January 2021 VA examination report reveals that the Veteran had an audiology examination in September 2020. The examiner stated that the results from that test were complete and thorough, with no issues noted during the test, and are accurate and reliable test results. The examiner indicated that she was using those test results. The Veteran’s Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: Jan. 2021/Aug 2020 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 35 40 40 45 40 92 LEFT 35 45 40 50 43 96 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 the right ear and Level I for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a zero 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 and witness statements attesting to his difficulty hearing conversations, hearing on the telephone, and hearing the television and doorbell. 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). K. Conner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A.G. Alderman, 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.