Citation Nr: 21030923 Decision Date: 05/20/21 Archive Date: 05/20/21 DOCKET NO. 15-32 416 DATE: May 20, 2021 ORDER An initial compensable rating for bilateral hearing loss is denied. FINDING OF FACT The Veteran's hearing loss has been manifested by no worse than level I hearing loss in both ears. CONCLUSION OF LAW The criteria for an initial compensable rating for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.85, 4.86, Diagnostic Code (DC) 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1967 to September 1970. The case is on appeal from an August 2013 rating decision. In May 2018, the Veteran testified at a Board hearing. Most recently, in a January 2021 decision, the Board denied a higher initial rating for posttraumatic stress disorder (PTSD). At that time, the Board also remanded the claim of service connection for right ear hearing loss and the issue of an initial compensable rating for left ear hearing loss. Thereafter, in a March 2021 rating decision, the RO granted service connection for right ear hearing loss. Thus, the issue on appeal became an initial compensable rating for bilateral hearing loss. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran, his representative and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). An initial compensable rating for bilateral hearing loss. Legal Criteria Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. The rating schedule for hearing loss provides that evaluations of hearing loss range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests together with average hearing threshold levels as measured by pure tone audiometry tests in the frequencies 1000, 2000, 3000 and 4000 cycles per second (Hertz). To evaluate the degree of disability from defective hearing, the rating schedule established eleven auditory acuity levels designated from level I for essentially normal acuity through level XI for profound deafness. 38 C.F.R. § 4.85, DC 6100. 38 C.F.R. § 4.86(a) provides that when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more, 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. The provisions of 38 C.F.R. § 4.86(b) provide that when the 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. That numeral will then be elevated to the next higher Roman numeral. Each ear will be evaluated separately. Analysis The Veteran is seeking a compensable rating for his service-connected hearing loss. Following his April 2012 claim, he was afforded a July 2013 VA examination in which the examiner reported the following air conduction pure tone thresholds, in decibels: HERTZ CNC 1000 2000 3000 4000 % RIGHT 15 30 25 25 100 LEFT 15 45 50 60 94 The average air conduction pure tone threshold was 23.75 in the right ear and 42.50 in the left ear. Speech discrimination revealed scores of 100 percent in the right ear and 94 percent in the left ear. The Veteran reported his hearing loss impacts his ordinary conditions of daily life, including a "loss of hearing overall." The results correspond to level I hearing loss in each ear. 38 C.F.R. § 4.85, DC 6100. When combined, the results reflect a noncompensable rating for the Veteran's hearing loss. The Veteran was afforded a May 2018 Board hearing in which he asserted his hearing has worsened in both ears. He stated he has difficulty hearing others speaking to him, including his family. He indicated he will look at those speaking to him and "still can't hear them." The claim was remanded by the Board in October 2018 for further development, including a VA examination to determine the severity of the hearing loss. The Veteran was afforded a September 2019 VA examination in which the examiner reported the following air conduction pure tone thresholds, in decibels: HERTZ CNC 1000 2000 3000 4000 % RIGHT 40 60 60 60 96 LEFT 40 50 65 70 100 The average air conduction pure tone threshold for the September 2019 examination was 55 in the right ear and 56.25 in the left ear. Speech discrimination revealed scores of 96 percent in the right ear and 100 percent in the left ear. The Veteran reported his hearing loss prevents him from catching high pitches, he cannot hear things whistling and cannot hear his spouse's voice. The results correspond to level I hearing loss in each ear. 38 C.F.R. § 4.85, DC 6100. When combined, the results reflect a noncompensable rating for the Veteran's hearing loss. (Continued on the next page) The Board finds a compensable rating for his service-connected hearing loss is not warranted at any point during the appeal period. The Board notes the Veteran's reports of difficulty hearing high pitches, whistling and hearing his family when they speak to him. However, the applicable mechanical hearing testing of record shows that his hearing loss is correctly evaluated as noncompensably disabling. In sum, an initial compensable hearing loss rating is not supported. The Board has considered the benefit-of-the-doubt rule. However, because the preponderance of the evidence does not show that the Veteran experienced a compensable level of hearing loss at any time during the appeal period, the benefit-of-the-doubt rule is not applicable. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Therefore, an initial compensable rating for hearing loss is not warranted. RYAN T. KESSEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Isaacs, Brandon 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.