Citation Nr: 21029164 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 16-36 488 DATE: May 12, 2021 ORDER Entitlement to a compensable rating for left ear hearing loss is denied. FINDING OF FACT At no time during the pendency of the claim is the Veteran's left ear hearing acuity shown to have been worse than Level II. CONCLUSION OF LAW A compensable rating for left ear hearing loss is not warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.85, 4.86 Diagnostic Code (Code) 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is a Veteran who served on active duty from March 1981 to December 1989 and had additional service from July 2000 to October 2013 in the Air National Guard. The matter is before the Board of Veterans' Appeals (Board) on appeal from a June 2015 Department of Veterans Affairs (VA) rating decision. In October 2018, the case was remanded for additional development. Entitlement to a compensable rating for left ear hearing loss. Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity caused by the given disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. As this appeal is from the rating decision that granted service connection, assigned the initial rating for the disability and an effective date, the entire period is for consideration from the effective date of the award to the present. Fenderson v. West, 12 Vet. App. 119 (1999). When a question arises as to which of two ratings applies under a particular code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining, including regarding degree of disability, is to be resolved in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. Ratings for hearing loss disability are derived from Table VII of 38 C.F.R. § 4.85 by a mechanical application of the rating schedule to numeric designations assigned after audiometric evaluations are performed. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). The numeric designations correspond to eleven auditory acuity levels, indicated by Roman numerals, where Level I denotes essentially normal acuity and Level XI denotes profound deafness. The assignment of the appropriate numeric level is based on the results of controlled speech discrimination test (Maryland CNC) in combination with average hearing threshold. The average threshold is obtained from puretone audiometric tests in the frequencies of 1000, 2000, 3000, and 4000 Hertz. 38 C.F.R. § 4.85. Rating specialists use either Table VI or VIA of 38 C.F.R. § 4.85 to determine the correct Roman numeral designation. Table VIA is used when speech discrimination tests are inappropriate due to language difficulties, inconsistent speech discrimination scores, etc., or where there is an exceptional pattern of hearing loss (as defined in 38 C.F.R. § 4.86). One such pattern occurs when the puretone threshold at each of the four specified frequencies is 55 decibels or more. Another occurs when the puretone threshold at 1000 Hertz is 30 decibels or less and the puretone threshold at 2000 Hertz is 70 decibels or more. 38 C.F.R. § 4.86(a)(b). On April 2015 Disability Benefits Questionnaire (DBQ) audiometry puretone thresholds for the left ear, in decibels, were: HERTZ 1000 2000 3000 4000 Avg Maryland CNC Speech Discrimination LEFT 15 40 55 50 40 92 Regarding the functional impact of the hearing loss, the Veteran stated that it impacted his conversations and made hearing in crowded areas difficult. A March 2018 VA audiology clinic record notes the Veteran's report of difficulty hearing when there is background noise or multiple people talking. Puretone testing for the left ear revealed a mild sloping to severe sensorineural hearing loss (SNHL) and poor word recognition score (WRS) of 44 percent (with no indication that the Maryland CNC Speech Discrimination was used). The provider recommended amplification in the left ear (prognosis was guarded). Puretone thresholds for the left ear were: HERTZ 1000 2000 3000 4000 Avg Maryland CNC Speech Discrimination LEFT 35 70 65 70 60 N/A On September 2020 DBQ audiometry puretone thresholds for the left ear were: HERTZ 1000 2000 3000 4000 Avg Maryland CNC Speech Discrimination LEFT 25 50 60 65 50 88 Regarding the functional impact of the hearing loss, the Veteran reported that he had trouble understanding speech, difficulty hearing when there is background noise or if there are multiple speakers. He also reported difficulty trouble hearing in noisy environments (at work) or if the speaker is on his left. The Veteran asserts that his left ear hearing acuity has declined and now warrants a compensable rating. Under governing regulations and the Caselaw cited above, determinations for hearing loss are based on results of audiometric testing. Although the Veteran is competent to observe and report his perception of a decline in hearing acuity, he is not competent to establish the level of severity of his hearing loss disability by his own lay observations. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The March 2018 VA audiometry was inadequate for rating purposes because the examination was conducted for treatment purposes, was not conducted to assess the current severity of his left ear hearing loss disability (and not in compliance with 38 C.F.R. § 4.85, as Maryland CNC list speech discrimination testing was not reported). The findings on that testing are not probative evidence in this matter. The only audiometry of record adequate for rating purposes was that on VA audiological evaluations in April 2015 and September 2020. Applying the results of the April 2015 VA examination to Table VI establishes that the Veteran had Level I hearing acuity in the left ear. An exceptional pattern of hearing loss (as defined in 38 C.F.R. § 4.86) is not shown; therefore, Table VIA is not for consideration. In determining the appropriate rating for the Veteran's left ear hearing loss, the nonservice connected right ear is assigned a Level I hearing acuity. 38 C.F.R. § 4.85(f). Under Table VII, when hearing loss in one ear in each ear, a 0 percent rating is warranted. Applying the results of the September 2020 VA examination to Table VI establishes that the Veteran had Level II hearing acuity in the left ear. An exceptional pattern of hearing loss is not shown; therefore, Table VIA is not for consideration. As noted above, the nonservice connected right ear is assigned a Level I hearing acuity. Under Table VII, when hearing loss in one ear is Level I and in the other ear Level II, a 0 percent rating is warranted. As the assignment of a disability rating for hearing impairment is derived by mechanical application of the rating schedule to the numeric designations assigned after audiometry evaluations are rendered, there is no doubt as to the proper schedular evaluation to be assigned. Lendenmann, 3 Vet. App. 345; 38 C.F.R. § 4.85, Tables VI-VII, Code 6100. The findings on official audiometry on the April 2015 and September 2020 VA examinations fall squarely within the parameters for a 0 percent rating, and that rating encompasses the Veteran's self-reported functional impairment (trouble understanding speech, and difficulty hearing in noisy environments, if there are multiple speakers, or if the speaker is on his left). The Board finds no reason to question his functional impairment is as he describes it. However, such impairment is encompassed by the 0 percent rating that is assigned. Accordingly, the preponderance of the evidence is against the claim for a compensable rating for left ear hearing loss, and the appeal in the matter must be denied. GEORGE R. SENYK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Chu, 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.