Citation Nr: 21013289 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 16-26 850 DATE: March 9, 2021 ORDER Entitlement to a compensable evaluation for service-connected hearing loss is denied. FINDING OF FACT The Veteran’s bilateral hearing has been manifested by hearing acuity of no worse than Level III in the right ear and no worse than Level III 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 air service from November 1958 to February 1962 and from December 1990 to July 1991. The Board also notes the Veteran’s service with the U.S. Air Force Reserves from March 1975 to June 1999. The Veteran testified before the undersigned Veterans Law Judge in April 2019. A transcript of that hearing is of record. The Veteran’s appeal was more recently before the Board in October 2019. In its decision, the Board, among other things, remanded the issue of the Veteran’s entitlement to a compensable rating for service-connected sensorineural hearing loss to the Agency of Original Jurisdiction (AOJ) to afford him a new VA examination to assess the current severity of his bilateral hearing loss. The Veteran received a new VA audiological examination in December 2020. The examination is adequate and provides the information necessary to adjudicate the Veteran’s claim. Thus, there has been substantial compliance with the October 2019 remand directives. The appeal initially included the issue of service connection for skin cancer. On Remand, and after additional development, service connection for the residuals of skin cancer was granted in a January 2021 rating decision. 1. Entitlement to a Compensable Evaluation for Service-Connected 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). The Veteran has received two VA audiological examinations during the period on appeal. Neither examination shows hearing loss warranting a compensable evaluation. A March 2016 VA examination reveals that the Veteran reported that he has difficulty hearing what people say, particularly if there is any background noise. As a result, he often asks people to repeat themselves. 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: 03/02/2016 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 25 20 60 70 44 82 LEFT 20 30 40 50 35 82 Applying the results to Table VI, the findings yield a numeric designation of Level III in the right ear and Level III in the left ear. Entering the resulting bilateral numeric designation of Level III for the right ear and Level III for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a non-compensable disability rating under Diagnostic Code 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. A December 2020 VA examination noted that the Veteran did not report that his hearing loss impacted the ordinary conditions of daily life. 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: 12/29/2020 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 30 30 65 65 48 84 LEFT 25 40 55 60 45 90 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 non-compensable 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 has considered the Veteran’s April 2019 hearing testimony regarding worsening hearing and the need to have his hearing aids adjusted. The Veteran’s VA treatment records accord with his hearing testimony, showing that his hearing aids were adjusted in April 2019. This indicates worsening hearing, and comparing the Veteran’s March 2016 VA examination to his December 2020 VA examination, the Board notes worsening decibel thresholds in both ears. The Board further notes improved CNC scores, however. The Veteran is competent to report difficulty with his hearing, and the evidence shows worsening hearing based on some measures. This worsening is not severe enough to warrant a compensable rating. 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). That mechanical application here does not support a compensable rating. The Board notes further that the rating criteria contemplate speech reception thresholds and ability to hear spoken words on Maryland CNC testing. The functional impact that the Veteran describes in his March 2016 VA examination is contemplated by the rating criteria and the non-compensable rating assigned. See Doucette v. Shulkin, 28 Vet. App. 366 (2017), 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 service-connected sensorineural 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 A. HERMAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Douglas M. Humphrey, 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.