Citation Nr: 21030843 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 14-32 361 DATE: May 19, 2021 ORDER Entitlement to a compensable rating for bilateral hearing loss is denied. FINDINGS OF FACT 1. The Veteran's hearing impairment has not reached the level for which assignment of a compensable rating is warranted with the application of the rating schedule to the numeric designations resulting from audiometric testing. 2. The Veteran's bilateral hearing loss has been manifested by hearing acuity of no worse than Level I in the right ear and no worse than Level V in the left ear. CONCLUSION OF LAW The criteria for a compensable rating for bilateral hearing loss have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.1, 4.10, 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from September 1966 to September 1968. As an initial matter, the Board observes the Veteran has recently asserted that he has additional symptoms following a rocket attack in service that he believes are related to his hearing loss, including dizziness and drainage or discharge from his ears. These matters have not yet been adjudicated by the agency of original jurisdiction, and therefore the Board does not have jurisdiction over them. Accordingly, they are referred to the regional office for appropriate action. For his part, the Veteran is encouraged to submit an appropriate application for service connection. This case comes before the Board of Veterans' Appeals (Board) on appeal from a January 2011 rating decision of the Department of Veterans Affairs (VA) Baltimore Regional Office (RO) which continued a noncompensable rating for bilateral hearing loss. The Veteran testified before the undersigned Veterans Law Judge in November 2020. A transcript of the hearing has been associated with the file. In December 2020, the Board remanded the matter to allow for an examination to evaluate the current severity of the Veteran's bilateral hearing loss. The Board notes that the Veteran has alleged that he also experiences symptoms of discharge from his ears and dizziness, which will be addressed in the remand portion of the decision. The Veteran contends that he is entitled to a higher rating because he believes his hearing has worsened. Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. 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 Veteran submitted a February 2016 record from a private audiologist. However, an examination for hearing impairment for VA purposes must include a controlled speech discrimination test (Maryland CNC) and a pure tone audiometry test. 38 C.F.R. § 4.85(a). This private examination does not meet the criteria for an adequate examination as defined by VA regulation, as the examination did not specify if the Maryland CNC speech discrimination test was used. Additionally, there was no narrative portion of the report with discussion of the functional impact the Veteran's hearing loss has on his life. This private audiology report, therefore, will not be used in this analysis.. A March 2021 VA examination reveals that the Veteran reported significant difficulty hearing on the phone and television, as well as when at a distance from the person speaking, when engaged in group conversations, and any time there was background noise present. The Veteran noted he could hear, but not clearly, and he frequently had to have things repeated. 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: March 2021 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 25 40 60 65 47.50 100% LEFT 50 75 90 105 80 78% Applying the results to Table VI, the findings yield a numeric designation of Level I in the right ear and Level V in the left ear. Entering the resulting bilateral numeric designation of Level I for the right ear and Level V 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 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 contentions that his hearing has worsened. 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. 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). MICHAEL E. KILCOYNE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board V. Geer, 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.