Citation Nr: 21029667 Decision Date: 05/14/21 Archive Date: 05/14/21 DOCKET NO. 16-37 950 DATE: May 14, 2021 ORDER The claim for an initial compensable disability rating for right ear hearing loss is denied. FINDING OF FACT The Veteran's right ear hearing has manifested by hearing acuity of no worse than Level I throughout the appeal period. CONCLUSION OF LAW The criteria for an initial compensable rating for right ear hearing loss have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from March 1981 until her honorable discharge in October 1993. This case comes before the Board of Veterans' Appeals (Board) on appeal from a January 2014 rating decision by the Waco, Texas, Regional Office of the United States Department of Veterans Affairs (VA), which, among other things, granted service connection for right ear hearing loss and assigned an initial noncompensable disability rating effective January 4, 2013. The Veteran timely appealed and chose not to testify before the Board. In October 2018, the Board remanded the claim to the VA Regional Office for further development. Specifically, the Board directed the VA Regional Office to obtain an updated examination addressing the severity of the Veteran's right ear hearing loss, which the VA Regional Office accomplished. The case now returns to the Board for adjudication. Increased Ratings In deciding claims, it is the Board's responsibility to evaluate the entire record on appeal. VA is required to give due consideration to all pertinent medical and lay evidence when rating disabilities. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 C.F.R. § 4.3. To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The law requires the Board address its reasons for rejecting evidence favorable to the Veteran. Timberlake v. Gober, 14 Vet. App. 122, 12829 (2000). The Board must review the entire record but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1381 (Fed. Cir. 2000). The analysis below focuses on the most salient and relevant evidence within the period on appeal and on what this evidence shows, or fails to show, on the claim. Rating Criteria Hearing Loss Disability ratings for hearing loss generally are derived from the mechanical process of applying the rating schedule found in 38 C.F.R. § 4.85 to the specific numeric scores obtained by audiology testing. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992); see also 38 C.F.R. § 4.86. Ordinarily, the average scores for Puretone threshold are compared with speech recognition scores to establish a numeric rating from I to XI for each ear, as outlined in Table VI in section 4.85. See 38 C.F.R. § 4.85(b), (h) (Table VI: "Numeric Designation of Hearing Impairment Based on Puretone Threshold Average and Speech Discrimination"). If, however, the examiner certifies that the use of speech recognition scores would not be appropriate, numeric ratings are assigned based solely on average Puretone thresholds, as outlined in Table VIA. See 38 C.F.R. § 4.85(c), (h) (Table VIA: "Numeric Designation of Hearing Impairment Based Only on Puretone Threshold Average"). In addition, when a claimant has an exceptional pattern of hearing impairment, such as Puretone thresholds of 55 decibels or more at each of the specified frequencies (1000, 2000, 3000, and 4000 hertz), or when the Puretone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz, the rating specialist must calculate the appropriate numeric ratings under tables VI and VIA and use the higher rating. 38 C.F.R. § 4.86(a), (b). In each of the situations described above, the numeric scores for the "better" and "poorer" ear are then entered into a chart to establish a disability rating between 0 percent and 100 percent. 38 C.F.R. § 4.85(e), (h), DC 6100 (Table VII: "Percentage Evaluation for Hearing Impairment"). Where only one ear is service-connected for hearing loss, as in this case, the law allows for compensation for hearing loss as if both ears were service-connected but only if (1) the service-connected hearing loss is at least 10 percent disabling and (2) the nonservice-connected hearing loss meets the standard for a hearing loss disability for VA purposes under 38 C.F.R. § 3.385, unless the nonservice-connected hearing loss is the result of the Veteran's willful misconduct. See 38 C.F.R. § 3.383. To determine the percentage evaluation from Table VII, the non-service-connected ear will be assigned a Roman Numeral designation for hearing impairment of I, subject to the provisions of 38 C.F.R. § 3.383. 38 C.F.R. § 4.85(f). Analysis There are two relevant VA-contracted audiologic examinations of record. During a November 2013 VA-contracted audiologic examination, the examiner recorded the Veteran's Puretone thresholds for her right ear, in decibels, as: HERTZ* A B C D E F G 500* 1000* 2000* 3000* 4000* 6000* 8000* Average (B E) RIGHT 50 35 30 25 25 20 45 28.75 The Veteran's speech discrimination score (Maryland CNC word list) for her right ear was 96%. Applying the above results to Table VI, the findings yield a numeric designation of Level I in the right ear. As the Veteran is not service connected for left ear hearing loss, the Board assigns the Veteran's left ear Level I consistent with 38 C.F.R. § 4.85(f). For rating purposes under Table VII, the right ear is considered to be the poorer ear and the left ear is the better ear. Entering the resulting bilateral numeric designation of Level I for the right ear and Level I for the left ear into 38 C.F.R. § 4.85, Table VII, equates to a 0 percent disability rating under Diagnostic Code 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. During an October 2020 VA-contracted audiologic examination, the examiner recorded the Veteran's Puretone threshold for her right ear, in decibels, as: HERTZ* A B C D E F G 500* 1000* 2000* 3000* 4000* 6000* 8000* Average (B E) RIGHT 30 25 25 30 35 40 55 28.75 The Veteran's speech discrimination score (Maryland CNC word list) for her right ear was 96%. Applying the above results to Table VI, the findings yield a numeric designation of Level I in the right ear. As the Veteran is not service connected for left ear hearing loss, the Board assigns the Veteran's left ear Level I consistent with 38 C.F.R. § 4.85(f). For rating purposes under Table VII, the right ear is considered to be the poorer ear and the left ear is the better ear. Entering the resulting bilateral numeric designation of Level I for the right ear and Level I for the left ear into 38 C.F.R. § 4.85, Table VII, equates to a 0 percent disability rating under Diagnostic Code 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. Absent evidence to the contrary, the Board finds the respective VA-contracted examiners were competent to assess the Veteran's hearing loss. Cox v. Nicholson, 20 Vet. App. 563, 569 (2007) (the competence of VA examiners is presumed absent evidence to the contrary). The Board finds no evidence that the respective VA-contracted audiologic examination results are inadequate. See Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007) (discussing adequate audiologic examinations). Therefore, the Board finds them credible and affords them significant probative value. The Board has considered the Veteran's lay statements regarding her belief that her right ear hearing loss should warrant a compensable disability rating. Unfortunately, the ratings for hearing loss disabilities involve a mechanical application of the rating schedule to the numeric designations assigned based on the audiometric test results. Lendenmann, 3 Vet. App. at 345. Determining the severity of hearing loss involves using specialized equipment and interpreting audiological test results. Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). As the Veteran has not shown that she possesses the training or experience needed to assess the severity of her hearing loss under VA's standards, her assertions have no probative value. To the extent the Veteran takes issue with the rating criteria themselves, the rating criteria specifically provide for ratings based on all levels of hearing loss, including exceptional hearing patterns, see 38 C.F.R. § 4.86, as measured by both audiometric testing and speech recognition testing. See Doucette v. Shulkin, 28 Vet. App. 366, 369 (2017) (holding "that the rating criteria for hearing loss contemplate the functional effects of decreased hearing and difficulty understanding speech in an everyday work environment"). The Board is bound by the rating criteria. The Veteran has not described any exceptional or unusual hearing loss symptoms that would require the application of any other rating criteria. Accordingly, the Board finds that the preponderance of the evidence is against the claim for an initial compensable rating for the Veteran's right ear hearing loss disability. M. Tenner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. F. Sawka, 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.