Citation Nr: 21041028 Decision Date: 07/07/21 Archive Date: 07/07/21 DOCKET NO. 17-56 380 DATE: July 7, 2021 ORDER An initial compensable rating for bilateral hearing loss is denied. FINDING OF FACT Veteran's bilateral hearing has been manifested by hearing acuity of no worse than Level I bilaterally. 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. §§ 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1967 to April 1970. This case is before the Board of Veterans' Appeals (Board) on appeal from a March 2015 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO). In January 2021, the Veteran testified at a Board videoconference hearing. The transcript of the hearing has been associated with the record. The Board remanded this case for a new examination in March 2021. As the requested VA examination was conducted in April 2021, no other action is required to comply with the remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veteran contends that he is entitled to a compensable rating because his hearing loss has been gradually worsening and affecting his ability to hear people and carry a conversation. 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 Consonant-Vowel-Nucleus-Consonant (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). In a March 2015 VA examination, the Veteran reported difficulty hearing in crowds. See Martinak v. Nicholson, 21 Vet. App. 447, 54-55 (2007) (reaffirming the need for VA audiologists to describe the effect of a hearing disability on a claimant's occupational functioning and daily activities); 38 C.F.R. § 4.10. The Veteran's Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: Mar. 2015 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 30 40 60 60 48 94% LEFT 35 45 60 60 50 96% Applying the results to Table VI, the findings yield a numeric designation of Level I bilaterally. Entering the resulting bilateral numeric designation of Level I in each ear to 38 C.F.R. § 4.85, Table VII, equates to a 0 percent disability rating under Diagnostic Code 6100. The March 2015 examination did not show an exceptional pattern of hearing impairment under 38 C.F.R. § 4.86. During the August 2017 VA examination, the Veteran's Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: Aug. 2017 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 35 45 65 70 54 96 LEFT 35 50 60 65 53 92 Applying the results to Table VI, the findings yield a numeric designation of Level I bilaterally, which, as noted above, equates to a 0 percent disability rating under Diagnostic Code 6100. See 38 C.F.R. § 4.85, Table VII. The August 2017 examination did not show an exceptional pattern of hearing impairment under 38 C.F.R. § 4.86. In the April 2021 VA examination, the Veteran reported it is very difficult to hear people if they are not looking at him directly, and he has a hard time in group situations or noisy locations. The Veteran's Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: Apr. 2021 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 35 55 60 65 53.75 94% LEFT 30 50 65 65 52.5 92% Applying the results to Table VI, the findings yield a numeric designation of Level I bilaterally, equating to a 0 percent disability rating under Diagnostic Code 6100. See 38 C.F.R. § 4.85, Table VII. The April 2021 examination did not show an exceptional pattern of hearing impairment under 38 C.F.R. § 4.86. 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 reports of difficulty hearing people and carrying conversations, particularly in crowds and noisy locations. 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, 349 (1992). The rating criteria contemplate speech reception thresholds and the ability to hear spoken words on Maryland CNC testing. The rating criteria consider the functional impact that the Veteran describes. Doucette v. Shulkin, 28 Vet. App. 366 (2017). The Veteran's main complaint is reduced hearing acuity and clarity, which the rating assigned contemplates. See Rossy v. Shulkin, 29 Vet. App. 142, 145 (2017). Accordingly, although the evidence demonstrates the Veteran's hearing has progressively worsened, the preponderance of the most probative evidence is nevertheless against the claim of entitlement to a compensable rating for hearing loss. 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 applicable. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). R. FEINBERG Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Costa, 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.