Citation Nr: 21027403 Decision Date: 05/05/21 Archive Date: 05/05/21 DOCKET NO. 17-10 462 DATE: May 5, 2021 ORDER Entitlement to an initial compensable rating for bilateral hearing loss is denied. FINDING OF FACT Throughout the appeal period, the Veteran's hearing loss has been manifested by no worse than Level I hearing acuity in both ears. CONCLUSIONS OF LAW The criteria for an initial compensable rating for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100 (2020). REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty from April 1969 to January 1972. He had additional reserve service, to include periods of active duty for training. This matter comes before the Board of Veterans' Appeals (Board) from a February 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In February 2020, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. The Board remanded this matter in May 2020 for additional evidentiary development. A December 2020 rating decision granted service connection for left and right knee disabilities. As the benefit sought on appeal, service connection for right and left knee disabilities, has been granted, those issues are no longer before the Board. Entitlement to an initial compensable rating for bilateral hearing loss Service connection for bilateral hearing loss was established in a February 2015 rating decision that is the subject of this appeal and assigned a noncompensable rating under 38 C.F.R. § 4.85, Diagnostic Code 6100, effective August 19, 2013. The Veteran seeks a higher initial rating for his bilateral hearing loss. He testified during the February 2020 Board hearing that he is hard of hearing, has difficulty discerning what others are saying, has trouble discerning stereo sounds and that his bilateral hearing has worsened since 2015. During the January 2015 VA examination, he described difficulty with clarity of speech; and during the September 2020 VA examination, he described needing to ask others to repeat themselves. Disability ratings are determined by applying the criteria set forth in the VA Schedule of Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The assignment of disability ratings for hearing impairment is derived by a mechanical application of the rating schedule to numeric designations assigned after audiometric evaluations are rendered. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Evaluations of hearing loss range from noncompensable (zero percent) to 100 percent based on organic impairment of hearing acuity as measured by the results of speech discrimination tests together with the average hearing threshold levels as measured by pure tone audiometry tests in the frequencies 1000, 2000, 3000, and 4000 cycles per second (Hertz). See 38 C.F.R. § 4.85. To evaluate the degree of disability for bilateral service-connected hearing loss, the rating schedule establishes eleven (11) auditory acuity levels, designated from Level I for essentially normal acuity through Level XI for profound deafness. See 38 C.F.R. § 4.85 and Tables VI, VIA, and VII (Diagnostic Code 6100). Section 4.86 provides an alternative rating method which may be used for certain defined "exceptional patterns of hearing impairment." 38 C.F.R. § 4.86. An examination for hearing loss must be conducted by a state-licensed audiologist and must include both a controlled speech discrimination test (Maryland CNC test) and a pure tone audiometry test. 38 C.F.R. § 4.859(a). Examinations must be conducted without the use of hearing aids. Section 4.85(c) indicates that Table VIA, "Numeric designation of Hearing Impairment Based Only on Puretone Threshold Average," will be used when the examiner certifies that use of the speech discrimination test is not appropriate because of inconsistent speech discrimination scores. The Veteran underwent VA audiological examinations in January 2015 and September 2020. During the January 2015 VA examination, audiometric testing revealed pure tone thresholds, in decibels, as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 15 40 50 35 35 LEFT 20 45 45 40 38 Speech audiometry revealed speech recognition ability of 98 percent in the right ear and 96 percent in the left ear. The examiner diagnosed bilateral sensorineural hearing loss in the 500-4000 Hertz frequencies and found the Veteran's hearing loss did not functionally impact his ability to work. The results from the January 2015 audiological evaluation correspond to Level I hearing loss in both ears under Table VI. Where hearing loss is at Level I in both ears, a zero percent (noncompensable) rating is assigned under Table VII. 38 C.F.R. § 4.85, Table VI, VII. During the September 2020 VA audiological evaluation, audiometric testing revealed pure tone thresholds, in decibels, as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 25 50 55 45 40 LEFT 30 45 50 45 37 Speech audiometry revealed speech recognition ability of 100 percent in the right ear and 98 percent in the left ear. The Veteran described the functional impact of his bilateral hearing loss as having to ask others to repeat themselves. The results from the February 2020 audiological evaluation correspond to Level I hearing loss in both ears under Table VI. Where hearing loss is at Level I in both ears, a zero percent rating is assigned under Table VII. 38 C.F.R. § 4.85, Table VI, VII. The examiner diagnosed right ear mixed hearing loss and left ear sensorineural hearing loss in the 500-8000 Hertz frequencies. VA treatment shows the Veteran was fitted for hearing aids in May 2015; however, they do not contain audiological test findings or show impairment related to right or left ear hearing loss. See VA treatment in April 2015, May 2015 and July 2015. The record includes an August 2014 private audiological evaluation. While it is not clear from the record if the examiner used the Maryland CNC controlled speech discrimination test, the results from this evaluation nonetheless reflect findings consistent with a noncompensable rating in both ears under 38 C.F.R. § 4.85, Table VI, VII. Specifically, pure tone thresholds were 15, 45, 50, and 40 decibels in the right ear and 20, 40, 40, and 35 decibels in the left ear at the specified frequencies, resulting in average pure tone thresholds of 38 decibels in the right ear and 34 decibels in the left ear. Speech recognition scores were 98 percent bilaterally. In sum, the audiological evaluations in the record do not support a compensable initial rating for right and left ear hearing loss at any point during the appeal period An exceptional pattern of hearing loss is not indicated in either ear. The Board has considered the Veteran's statements regarding the functional impairment of his bilateral hearing loss on daily life, including his difficulty understanding others and needing others to repeat themselves. See Martinak v. Nicholson, 21 Vet. App. 447, 454-56 (2007). However, the schedular rating for hearing loss contemplates the functional effects of decreased hearing and difficulty understanding speech in an everyday environment. Doucette v. Shulkin, 28 Vet. App. 366 (2017). The VA examiners addressed the effects of the Veteran's hearing loss on his daily activities and occupational functioning. See Martinak, 21 Vet. App. at 447. While the Veteran is competent to report difficulties with his hearing, the Veteran's complaints of reduced hearing acuity and clarity are what is contemplated in the assigned noncompensable rating. See Rossy v. Shulkin, 29 Vet. App. 142, 145 (2017). Further, 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, 3 Vet. App. 345. The Board finds the objective medical evidence of record, particularly the VA examinations, are more probative as to the severity and level of impairment of the Veteran's bilateral hearing loss than the lay assertions. In reaching this conclusion, the Board considered the applicability of the benefit of the doubt doctrine. As the preponderance of the evidence is against the Veteran's claim for a higher initial rating for bilateral hearing loss, the doctrine does not apply. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). K. A. BANFIELD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. C. Birder 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.