Citation Nr: 21025429 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 14-35 903 DATE: April 28, 2021 ORDER Entitlement to a compensable disability rating for bilateral hearing loss is denied. FINDING OF FACT Veteran’s bilateral hearing has been manifested by hearing acuity of no worse than Level IV in the right ear and no worse than Level I 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 served on active duty from January 1984 to December 1993. He testified at a Central Office hearing before the undersigned in May 2018. A transcript of the hearing is of record. In a January 2021 rating decision, entitlement to service connection for a left ear hearing disability was granted and assigned an effective date of December 1, 2010 – the same date assigned to the Veteran’s service-connected right ear hearing loss disability. As such, the issue of entitlement to service connection for right ear hearing loss is no longer in appellate status. Entitlement to a compensable disability rating for bilateral hearing loss. The Veteran contends that he is entitled to a higher disability rating for his bilateral 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). The Veteran has been afforded numerous VA audiological examinations during the pendency of his claim. A January 2011 VA examination reveals that the Veteran reported difficulty hearing conversations clearly, having to ask speakers to repeat themselves, and only being able to use his left ear for telephone conversations. 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: January 2011 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 50 50 50 55 51 84 LEFT 30 25 30 45 33 100 Applying the results to Table VI, the findings yield a numeric designation of Level II in the right ear and Level I in the left ear. Entering the resulting bilateral numeric designation of Level II 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. Upon examination in February 2012, the Veteran reported difficulty hearing and responding appropriately in general conversations with others, having to ask people to repeat themselves, difficulty hearing the telephone ring, having to watch television at loud volume, and having to sleep on his right side so that he could hear his alarm clock with his left ear. 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: February 2012 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 55 55 60 70 60 80 LEFT 35 25 45 55 40 100 Applying the results to Table VI, the findings yield a numeric designation of Level IV in the right ear and Level I in the left ear. Although an exceptional pattern of hearing impairment under 38 C.F.R. § 4.86(a) was shown for the right ear, application of Table VIa does not avail the Veteran, as it too designates Level IV impairment. Entering the resulting bilateral numeric designation of Level IV 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. A May 2019 VA examination reveals that the Veteran reported difficulty hearing with sounds appearing muffled, having to increase the volume on the television, and asking people to sit to his left since it is his better ear. 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: May 2019 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 55 55 60 70 60 92 LEFT 40 40 60 70 52 100 Applying the results to Table VI, the findings yield a numeric designation of Level II in the right ear and Level I in the left ear. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86(a) was shown for the right ear, and Table VIa designates Level IV impairment. Entering the resulting numeric designations of the results most favorable for the Veteran—Level IV 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. Upon examination in January 2021, the Veteran reported constantly asking people to repeat themselves and stated that he was unable inability to enjoy music, television, and movies because of his hearing difficulties. 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: January 2021 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 50 50 60 60 55 94 LEFT 40 45 60 60 51 92 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 noncompensable 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 acknowledges its consideration of the lay evidence of record when adjudicating this claim, including the Veteran’s reports of difficulty hearing conversations, having to ask people to repeat themselves, positioning himself so that he can hear with his “good” ear, and having to listen to the television at loud volume. The Veteran is competent to report difficulty with his hearing. Importantly, 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). (Continued on Next Page) Accordingly, the preponderance of the most probative evidence is against the claim of entitlement to a compensable rating for a bilateral hearing loss disability. 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). V. Chiappetta Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Bristow Williams, 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.