Citation Nr: 21027152 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 15-42 506 DATE: May 4, 2021 ORDER Entitlement to an initial compensable rating for bilateral hearing loss disability is denied. FINDING OF FACT The Veteran's hearing impairment was no worse than Level I in his right ear and Level VI in his left ear. CONCLUSION OF LAW The criteria for an initial compensable rating for bilateral hearing loss disability have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.7, 4.85, Diagnostic Code 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service from June 1968 to July 1970. This matter is on appeal from a September 2014 rating decision. This case was previously before the Board in June 2019, at which time the issue currently before the Board was remanded for additional development. The case has now been returned to the Board for appellate review. Increased Rating Bilateral Hearing Loss Disability The Veteran has asserted that he should have a higher rating for his bilateral hearing loss disability as his symptoms are worse than those contemplated by the currently assigned rating. 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 separately determine the Roman numeral designation for hearing impairment of each ear 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 Board concludes that the preponderance of the evidence is against finding that a rating higher, compensable rating, for bilateral hearing loss is warranted. 38 C.F.R. §§ 4.7, 4.85, 4.86, Diagnostic Code 6100. At an August 2014 VA audiology evaluation, audiometric testing results at that time were as follows: Hertz 1000 2000 3000 4000 Average Right Ear 30 55 60 70 54 Left Ear 55 65 80 80 70 Speech recognition ability was measured at 100 percent in his right ear and 96 percent in his left ear. Applying those values to the rating criteria results in a numeric designation of Level I in the right ear and Level II in the left ear. 38 C.F.R. § 4.85, Table VI; 4.86(b). Application of the levels of hearing impairment in each ear to Table VII at 38 C.F.R. § 4.85 produces a noncompensable (0 percent) rating. Here, even evaluating the Veteran's left ear under Table VIA, as it meets the criteria for an exceptional hearing loss, with all four levels in at or in excess of 55, the Veteran's left ear hearing level would still only be considered a Level VI, which again, when applied to Table VII, still yields only a noncompensable rating. At an April 2016 VA audiology evaluation, audiometric testing results at that time were as follows: Hertz 1000 2000 3000 4000 Average Right Ear 30 45 60 65 50 Left Ear 50 55 75 75 64 Speech recognition ability was measured at 92 percent in his right ear and 96 percent in his left ear. Applying those values to the rating criteria results in a numeric designation of Level I in the right ear and Level II in the left ear. 38 C.F.R. § 4.85, Table VI; 4.86(b). Application of the levels of hearing impairment in each ear to Table VII at 38 C.F.R. § 4.85 produces a noncompensable (0 percent) rating. At a December 2020 VA audiology evaluation, audiometric testing results at that time were as follows: Hertz 1000 2000 3000 4000 Average Right Ear 35 50 60 65 52.5 Left Ear 45 60 75 80 65 Speech recognition ability was measured at 94 percent in his right ear and 82 percent in his left ear. Applying those values to the rating criteria results in a numeric designation of Level I in the right ear and Level IV in the left ear. 38 C.F.R. § 4.85, Table VI(a); 4.86(b). Application of the levels of hearing impairment in each ear to Table VII at 38 C.F.R. § 4.85 produces a noncompensable rating. A review of the record shows that the Veteran receives audiology treatment at the VA Medical Center and with a private physician. The Board is cognizant of the various private audiometric examinations submitted by the Veteran regarding his hearing acuity during the claims period. However, a close review of these records reveals no objective testing results, to include contemporaneous audiometric testing during treatment, that indicate symptoms of his bilateral hearing loss disability that are worse than those reported at his VA examination. As such, the Board finds that the VA examinations cited herein to be the most probative evidence, as they represent the Veteran's hearing acuity at its worst. Based on the evidence above, a compensable higher for 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 reported functional impairment. 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). Zi-Heng Zhu Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board I. Umez-Eronini, 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.