Citation Nr: 21031833 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 16-17 098 DATE: May 24, 2021 ORDER Entitlement to a compensable rating for bilateral hearing loss is denied. FINDING OF FACT The Veteran's bilateral hearing has been manifested by hearing acuity of no worse than Level I in the right ear and no worse than Level I 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, 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 served in the United States Navy from June 1993 to June 1998. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an April 2015 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veteran Law Judge in a March 2019 videoconference hearing, and a transcript of this hearing is associated with the claims file. This matter was previously before the Board in August 2019, when it was remanded in order to obtain an updated VA audiological examination, and has since returned to the Board for further appellate review. 1. Entitlement to a compensable rating for bilateral hearing loss is denied. The Veteran is currently in receipt of a noncompensable rating or his bilateral hearing loss. The Veteran contends that he is entitled to a compensable rating because he has difficulty hearing higher frequencies, including higher-pitched voices. He also resorts to lip reading in order to understand what people are saying and has had increased difficulty understanding people when they wear masks due to COVID-19. 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 was afforded VA examinations in March 2015 and August 2020. In his March 2019 hearing testimony, the Veteran stated his hearing had gotten worse since his March 2015 examination. A March 2015 VA audiological examination reveals that the Veteran reported that he was not currently wearing his hearing aids and tries to read lips. 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 2015 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 25 50 60 50 46 100 LEFT 30 50 60 55 49 100 Applying the results to Table VI, the findings yield a numeric designation of Level I in the right ear and Level I in the left ear. Entering the resulting bilateral numeric designation of Level I for the right ear and Level I 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. An August 2020 VA audiological examination reveals that the Veteran reports having a hard time hearing people talking, especially when they are wearing masks. 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: August 2020 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 20 45 60 55 45 98 LEFT 30 50 65 35 45 98 Applying the results to Table VI, the findings yield a numeric designation of Level I in the right ear and Level I in the left ear. Entering the resulting bilateral numeric designation of Level I for the right ear and Level I 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. The Veteran also submitted a March 2019 audiogram from the Costco Hearing Center. However, this audiogram does not include a speech recognition score. In order for an examination to be adequate for rating purposes under § 4.85(a), speech recognition scores using the Maryland CNC speech list must be included. This is not required if an examiner determines use of the speech discrimination test is inappropriate because of language difficulties, inconsistent speech discrimination scores, or if there is an exceptional pattern of hearing loss under § 4.86. None of these exceptions apply in the Veteran's case, and thus the audiometric test results from the Costco Hearing Center cannot be used for rating purposes. During his March 2019 testimony, the Veteran stated that he has noticed he has to lip read more than he did previously in order to understand people. However, this negatively impacts his job as a project manager for a construction company because he cannot always see people's lips when they are speaking during meetings or job site walk throughs. He also reported having a harder time hearing higher frequencies, indicating this included women's and children's voices. Additionally, he reported needing to turn up his phone volume and television volume. 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 statements about having difficulty hearing higher frequency noises, including women's and children's voices, as well as difficulty understanding people when he cannot see their lips. See Martinak, supra. 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 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). Caroline B. Fleming Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Gabrielle Ongies, 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.