Citation Nr: 21020945 Decision Date: 04/08/21 Archive Date: 04/08/21 DOCKET NO. 20-09 342 DATE: April 8, 2021 ORDER Entitlement to a compensable evaluation for a left ear hearing loss is denied. FINDING OF FACT The Veteran’s left ear hearing has been manifested by hearing acuity of no worse than Level I in the right ear and no worse than Level I in the left ear. CONCLUSION OF LAW The criteria for a compensable rating for left ear 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 served on active duty in the Air Force from July 1955 to December 1975. This matter comes before the Board of Veterans’ Appeals (Board) from a rating decision issued by the Regional office (RO) of the Department of Veterans Affairs (VA) in February 2018. In November 2020, the Veteran testified at a hearing before the undersigned using video-conferencing technology. A transcript of the proceeding is of record. This case was most recently before the Board in November 2020. At that time, the Board remanded the issues of entitlement to a compensable evaluation for left ear hearing loss and entitlement to additional compensation of dependent spouse. The issue of entitlement to additional compensation of dependent has been granted in full in a February 2021 letter from the RO. Therefore, this issue is no longer before the Board. 1. Entitlement to a compensable evaluation for a left ear hearing loss The Veteran contends that he is entitled to a compensable rating because his hearing had worsened since his last hearing loss examination. 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 hearing examinations during the appeal period. After the February 2018 examination, the Veteran reported that his hearing had worsened. He was afforded a second examination in February 2021. A February 2018 VA examination revealed that the Veteran reported that he began to have to turn the television up louder than before. He also has to keep the volume up on the telephone. He sometimes has to have this spouse speak to the person on the telephone because he cannot understand conversations on the telephone well. He also reported having trouble hearing in crowds. 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: [ HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 20 25 35 35 28.75 96 LEFT 20 25 30 40 28.75 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 0 percent disability rating under Diagnostic Code 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. A February 2021 VA examination reveals that the Veteran reported that his hearing loss impacts ordinary conditions of daily life and work because he is unable to properly hear and understand orders and instructions. 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: ] HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 30 30 45 45 37.5 94 LEFT 30 35 45 55 41.25 94 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 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 being unable to properly hear and understand orders and instructions as well as difficulty hearing the telephone, phone conversations or conversations in a crowd of people. 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). KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Tahirih S. Samadani, 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.