Citation Nr: 21022748 Decision Date: 04/19/21 Archive Date: 04/19/21 DOCKET NO. 16-30 027 DATE: April 19, 2021 ORDER Entitlement to a compensable disability rating for service-connected right ear hearing loss is denied. REFERRED The issue of entitlement to service connection for left ear hearing loss was raised in a June 2016 statement and is referred to the Agency of Original Jurisdiction (AOJ) for adjudication. This issue was referred to the AOJ in an October 2018 Board remand, but it does not appear that the AOJ has taken any action related to this claim, so the Board is again referring this claim for adjudication. FINDING OF FACT The Veteran’s right ear hearing loss was manifested by, at most, Level III hearing. CONCLUSION OF LAW The criteria for a compensable disability rating evaluation for service-connected bilateral hearing loss are not met. 38 U.S.C. § 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. § 3.321, 4.1, 4.2, 4.7, 4.85, 4.86 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1977 to December 1997. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This matter was remanded by the Board in October 2018 and is now back before the Board for adjudication. Entitlement to a compensable disability rating for service-connected right ear hearing loss is denied. The Veteran contends that he is entitled to a compensable disability rating for his right ear hearing loss disability. 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). If impaired hearing is service-connected in only one ear, the law allows for compensation for hearing loss as if both ears were service-connected if the service-connected hearing loss is ratable as at least 10 percent disabling and the non-service-connected hearing loss meets the standard for a hearing loss disability for VA purposes under 38 C.F.R. § 3.385, unless the non-service-connected hearing loss is the result of the Veteran’s willful misconduct. See 38 C.F.R. § 3.383. To determine the percentage evaluation from Table VII, the non-service-connected ear will be assigned a Roman Numeral designation for hearing impairment of I, subject to the provisions of 38 C.F.R. § 3.383. 38 C.F.R. § 4.85(f). During the period of appeal, the Veteran underwent VA examinations in June 2014 and June 2019. The June 2014 VA examination report reveals that the Veteran reported that he had difficulty understanding speech when in an area with background noise. 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: June 2014 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 10 15 70 65 40 98 LEFT 15 15 60 60 38 96 Applying the results to Table VI, the findings yield a numeric designation of Level I in the service-connected right 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 noncompensable disability rating under Diagnostic Code 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. The June 2019 VA examination report reveals that the Veteran reported that people try to communicate with him and they get frustrated having to repeat themselves. He also reported that he speaks loudly, has muffled hearing, and he pretends that he hears people when he really doesn’t, and that he has difficulty hearing in restaurants. 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: June 2019 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 50 50 75 80 64 88 LEFT 40 45 80 75 60 86 Applying the results to Table VI, the findings yield a numeric designation of Level III in the service-connected right ear. Entering the resulting bilateral numeric designation of Level III for the right ear and Level I for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a noncompensable 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 medical records also show treatment for hearing loss, including a February 2014 audiogram. The February 2014 audiogram did not use Maryland CNC word list and is therefore not adequate for rating purposes under 38 C.F.R. § 4.85(a). Based on the evidence above, a compensable rating for the Veteran’s service-connected right ear hearing loss is not warranted. The Board expressly acknowledges its consideration of the lay evidence of record when adjudicating this claim, including having difficulty understanding speech when in an area with background noise, that people try to communicate with him and they get frustrated having to repeat themselves, that he speaks loudly, has muffled hearing, and he pretends that he hears people when he really doesn’t, and that he has difficulty hearing in restaurants. 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 his service-connected right ear 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). M. Mills Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Boal, 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.