Citation Nr: 21025626 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 14-41 889 DATE: April 28, 2021 ORDER Entitlement to an initial 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 II bilaterally. CONCLUSION OF LAW The criteria for an initial 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 September 1967 to July 1970. This case is before the Board of Veterans’ Appeals (Board) on appeal from a June 2014 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO). In January 2017, the Veteran testified at a Board videoconference hearing. The transcript of the hearing has been associated with the record. The Board remanded this case for further development in May 2018. As the requested development of a new VA examination has been completed, no further action to ensure compliance with the remand directives is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veteran contends that he is entitled to a compensable rating because the severity of his hearing loss requires hearing aids. In the January 2017 hearing, the Veteran noted his hearing loss causes difficulty understanding people causing them to become angry with him, sleeping with the television on with the volume up, and using hearing aids at the maximum volume. 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 Consonant-Vowel-Nucleus-Consonant (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). In the June 2014 VA examination, the Veteran reported difficulty understanding speech when there is competing noise, if he cannot see the speaker’s face, or if he is far from the speaker. See Martinak v. Nicholson, 21 Vet. App. 447, 54-55 (2007) (reaffirming the need for VA audiologists to describe the effect of a hearing disability on a claimant’s occupational functioning and daily activities); 38 C.F.R. § 4.10. 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 40 50 70 70 57.5 100% LEFT 40 50 65 75 57.5 98% Applying the results to Table VI, the findings yield a numeric designation of Level II bilaterally. Entering the resulting bilateral numeric designation of Level II in each ear to 38 C.F.R. § 4.85, Table VII, equates to a 0 percent disability rating under Diagnostic Code 6100. The June 2014 examination did not show an exceptional pattern of hearing impairment under 38 C.F.R. § 4.86. In a January 2015 VA examination, the Veteran reported his hearing is not bad with his hearing aids, but he cannot hear what is being said without them. The Veteran’s Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: Jan. 2015 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 40 50 70 80 60 92% LEFT 35 45 70 75 56.25 96% 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 0 percent disability rating under Diagnostic Code 6100. The January 2015 examination did not show an exceptional pattern of hearing impairment under 38 C.F.R. § 4.86. During the June 2018 VA examination, the Veteran reported difficulty hearing people, even with hearing aids, because they pick up too much background noise. The Veteran’s Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: June 2018 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 40 45 70 75 57.5 94% LEFT 35 45 70 75 56.25 90% Applying the results to Table VI, the findings yield a numeric designation of Level II bilaterally. Entering the resulting bilateral numeric designation of Level II in each ear to 38 C.F.R. § 4.85, Table VII, equates to a 0 percent disability rating under Diagnostic Code 6100. The June 2018 examination did not show an exceptional pattern of hearing impairment under 38 C.F.R. § 4.86. 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 the Veteran’s difficulty understanding people causing them to become angry with him, sleeping with the television on with the volume up, using hearing aids with the maximum volume, and difficulty understanding speech when there is competing noise, if he cannot see the speaker’s face, or if he is far from the speaker. 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, 349 (1992). The rating criteria contemplate speech reception thresholds and the ability to hear spoken words on Maryland CNC testing. The rating criteria considers the functional impact that the Veteran describes. Doucette v. Shulkin, 28 Vet. App. 366 (2017). The Veteran’s main complaint is reduced hearing acuity and clarity, which the rating assigned contemplates. 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 applicable. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Costa, 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.