Citation Nr: 21013236 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 13-35 009 DATE: March 9, 2021 ORDER An initial compensable disability rating for bilateral hearing loss is denied. FINDING OF FACT At worst, the Veteran has had Level II hearing in the right ear and Level I hearing in the left ear. 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 Army from August 1972 to October 1979 and from July 1991 to March 1992. He also had service in the Army National Guard. His decorations include the Southwest Asia Service Medal. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a February 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. In November 2016, the Veteran testified at a Board hearing before a Veterans Law Judge sitting at the RO in Phoenix. A transcript of that hearing has been associated with the record. In August 2017, the Board remanded the case to the agency of original jurisdiction (AOJ) for additional development. After taking further action, the AOJ confirmed and continued the prior rating and returned the case to the Board. 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). In January 2021, the Board wrote the Veteran and his representative to inform them that the Veterans Law Judge who conducted the hearing in November 2016 was no longer employed by the Board. The Veteran was offered the opportunity to testify at another Board hearing, but did respond within 30 days. Accordingly, as set out in the letter, it is assumed that he does not wish to have another hearing. 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 results of puretone audiometry tests. 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). Pursuant to 38 C.F.R. § 4.85(a), an examination for hearing impairment for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination (Maryland CNC) test and a puretone audiometry test. In this case, the Veteran was afforded VA audiology examinations in October 2010 and October 2017, consistent with the foregoing requirements. Audiometric testing at the time of the October 2010 examination produced the following results, in decibels: HERTZ 1000 2000 3000 4000 Avg RIGHT 35 50 55 55 48.75 LEFT 30 25 35 55 36.25 Speech audiometry (Maryland CNC) testing revealed speech recognition ability of 96 percent in the right ear and 92 percent in the left ear. Under 38 C.F.R. § 4.85 and Table VI, these results correspond to Level I acuity in both ears; which, in turn, warrants a 0 (zero) percent rating under Table VII. At the October 2017 VA audiology examination, the Veteran complained that his hearing loss made it nearly impossible to hear. Audiometric testing at that time produced the following results, in decibels: HERTZ 1000 2000 3000 4000 Avg RIGHT 50 60 65 60 59 LEFT 40 45 50 55 48 Speech audiometry (Maryland CNC) testing revealed speech recognition ability of 94 percent, bilaterally. Under 38 C.F.R. § 4.85 and Table VI, these results correspond to Level II hearing for the right ear and Level I hearing for the left ear; which, in turn, warrants a 0 percent rating under Table VII. 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 audiological evaluations of record. There are also no other audiometric findings included in the treatment records during the appeal period that would warrant 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, 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 by the assigned rating. 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.