Citation Nr: 21030835 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 15-30 992 DATE: May 19, 2021 ORDER Entitlement to initial compensable disability rating for right ear hearing loss is denied. FINDING OF FACT The Veteran's right and left ear hearing acuity has been manifested by hearing acuity of no worse than Level III in the either ear. CONCLUSION OF LAW The criteria for a compensable rating for right ear 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 has active service from November 1961 to November 1963. This case is before the Board of Veterans' Appeals (Board) from a July 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran appeared before the undersigned Veterans' Law Judge at a December 2018 hearing. In May 2019, the Board remanded these matters to the RO for additional development. Finding there has been substantial compliance with the Board's remand directives in accordance with Stegall v. West, 11 Vet. App. 268, 271 (1998), the Board may proceed with appellate review. In May 2019, issues of service connection for an acquired psychiatric disability (and for treatment purposes) and service connection for left ear hearing loss were remanded. Service connection for both of those claims has been granted since the May 2019 remand. Because the benefit sought on appeal has been granted, the Board no longer has jurisdiction over the matters, and they are no longer for consideration on appeal. Right ear hearing loss. The Veteran has claimed entitlement to a compensable rating for right ear hearing loss due to an increase in severity (11/06/2014 NOD; 12/17/2018 Hearing Transcript, pg. 25). The Veteran is service connected for bilateral hearing loss at a non-compensable rating, effective September 20, 2013 (03/09/2021 Rating Decision - Codesheet). 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 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). The Board notes at the time the Veteran appealed the decision denying him a compensable rating for his right ear, he was not service connected for hearing loss of his left ear. Pursuant to 38 C.F.R. § 4.85(f), if impaired hearing is service connected in only one ear, in order 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. The Veteran is now service connected for bilateral hearing loss and an accurate Roman numeral designation can be assessed for each ear. The Board will consider the hearing acuity in both ears, finding it more advantageous to the Veteran. During a September 2013 private audiological examination, the Veteran complained of diminished hearing in both ears (09/13/2013 Medical Treatment Record - Non-Government Facility; numerically interpreted at 6/28/2014 C&P Exam, pg. 1). The Veteran's Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, for the right ear, were as follows: Sept. 4, 2013 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 30 55 85 95 66 88 LEFT 35 55 60 70 55 88 Applying the results to Table VI, the findings yield a numeric designation of Level III in the right ear and Level II in the left ear. Entering the resulting bilateral numeric designation of Level III for the right ear and Level II for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a 0 percent, that is non-compensable, disability rating under Diagnostic Code 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. A June 2014 VA examination reveals that the Veteran reported difficulty hearing clearly on the telephone. 38 C.F.R. § 4.10; Martinak v. Nicholson, 21 Vet. App. 447 (2007). The Veteran's Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: June 28, 2014 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 25 50 75 95 61 88 LEFT 30 55 55 65 51 88 Applying the results to Table VI, the findings yield a numeric designation of Level III in the right ear and Level II in the left ear. Entering the resulting bilateral numeric designation of Level III for the right ear and Level II for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a 0 percent, that is non-compensable, disability rating under Diagnostic Code 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. Most recently, a February 2021 VA examination reveals that the Veteran continued to complain of an inability to hear basic communication, even with hearing aids, inability to make out words on television or use the telephone. 38 C.F.R. § 4.10; Martinak v. Nicholson, 21 Vet. App. 447 (2007). The Veteran's Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: Feb. 7, 2021 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 35 60 80 95 67.5 88 LEFT 45 60 65 80 62.5 84 Applying the results to Table VI, the findings yield a numeric designation of Level III in the right ear and Level III in the left ear. Entering the resulting bilateral numeric designation of Level III for the right ear and Level III for the left ear to 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. Based on the evidence above, a compensable rating for the Veteran's right ear 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 description of hearing difficulties in conversation, over the telephone, or listening to the television. 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 contemplated in the rating assigned. See Rossy v. Shulkin, 29 Vet. App. 142, 145 (2017). The Board finds consideration of an extraschedular rating has not been raised by the record, nor has it been asserted by the Veteran. 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). Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P. A. Myers 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.