Citation Nr: 21042713 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 17-07 160 DATE: July 13, 2021 ORDER Entitlement to an initial compensable evaluation for hearing loss is denied. FINDING OF FACT The Veteran's hearing loss was manifested by no greater than Level III hearing in the right ear and Level III hearing in the left ear. CONCLUSION OF LAW The criteria for an initial compensable evaluation for hearing loss have not been met. See 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 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 February 1971 to March 1974. This matter comes to the Board of Veterans' Appeals (Board) from a July 2016 rating decision that granted service connection for bilateral hearing loss and assessed a noncompensable evaluation, effective April 11, 2016. In October 2019, the Board remanded the claim for additional development. The Board instructed the agency of original jurisdiction (AOJ) to update the Veteran's VA treatment records and provide the Veteran with a new VA examination. As a preliminary matter, the Board finds substantial compliance with the October 2019 decision. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998). Following remand, the AOJ updated the Veteran's VA treatment records and provided the Veteran with a new VA examination. Entitlement to an initial compensable evaluation for hearing loss is denied. In written pleadings, to include the November 2016 Notice of Disagreement and the February 2017 Form 9, the Veteran asserts that a 20 percent evaluation is warranted for hearing loss. The Veteran asserts that his hearing has worsened with age. The Veteran also notes that he has a 10 percent evaluation for tinnitus, but a noncompensable evaluation for hearing loss. In informal hearing presentations from September 2019 and August 2020, the Veteran's representative generally asserts that the Veteran's hearing loss warrants a compensable evaluation. Disability ratings are determined by applying the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate DCs. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Evaluations of hearing loss range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of a controlled Maryland CNC speech recognition test together with the average hearing threshold level measured by puretone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 Hertz. See 38 C.F.R. § 4.85, DC 6100. To evaluate the degree of disability from service-connected hearing loss, Table VI establishes 11 hearing acuity levels designated from Level I for essentially normal hearing through Level XI for profound deafness. See 38 C.F.R. § 4.85, Table VI. Table VII then establishes the percentage evaluation of hearing impairment based on the hearing acuity levels identified by Table VI. See 38 C.F.R. § 4.85, Table VII. A veteran is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. When there is a question as to which of two evaluations should be applied, the higher evaluation will be assigned if the veteran's disability picture more nearly approximates the criteria for the higher evaluation. See 38 C.F.R. § 4.7. On April 11, 2016, the Veteran filed a claim of service connection for bilateral hearing loss. In April 2016, the Veteran was issued hearing aids by the VA Medical Center. Since that time, VA treatment records showed that the Veteran denied reports of ear pain. In October 2018, the Veteran reported that his hearing aids quit, and they were sent for repair. At a May 2016 VA examination, the Veteran reported having difficulty hearing and understanding speech, especially in background noise. The puretone thresholds and Maryland CNC speech recognition score were as follows: HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 25 30 30 30 28.75 80 LEFT 25 30 35 45 33.75 80 The VA examiner stated that these results were valid for evaluation purposes. A July 2016 rating decision granted service connection for bilateral hearing loss and assessed a noncompensable evaluation, effective April 11, 2016. At a December 2019 VA examination, the Veteran reported using hearing aids to help understand conversations. He also reported asking others to repeat every so often as well as using visual cues. The puretone thresholds and Maryland CNC speech recognition score were as follows: HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 35 40 40 40 38.75 100 LEFT 30 35 40 45 37.5 100 The VA examiner stated that these results were valid for evaluation purposes. As a preliminary matter, the Board notes that the Veteran's hearing loss does not show an exceptional pattern of hearing impairment. Neither VA examination showed (1) a puretone threshold of 55 decibels or more at each of 1000, 2000, 3000, and 4000 Hertz or (2) a puretone threshold of 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz. See 38 C.F.R. § 4.86. The Board must first use Table VI to determine the numeric designation of hearing impairment based on puretone threshold average and speech recognition. See 38 C.F.R. § 4.85, Table VI. After determining the numeric designation of hearing impairment, the Board must then use Table VII to determine the percentage evaluation for hearing impairment. See 38 C.F.R. § 4.85, Table VII. The 2016 audiometric results show a numeric designation of Level III hearing for both ears. A puretone threshold average of 28.75 and a speech recognition score of 80 percent results in a numeric designation of Level III hearing for the right ear. See 38 C.F.R. § 4.85, Table VI. Similarly, a puretone threshold average of 33.75 and a speech recognition score of 80 percent results in a numeric designation of Level III hearing for the left ear. See id. The 2019 audiometric results show a numeric designation of Level I hearing for both ears. A puretone threshold average of 38.75 and a speech recognition score of 100 percent results in a numeric designation of Level I hearing for the right ear. See id. Similarly, a puretone threshold average of 37.5 and a speech recognition score of 100 percent results in a numeric designation of Level I hearing for the left ear. See id. The Board finds that a noncompensable evaluation is warranted based on either the 2016 or 2019 audiometric results. A numeric designation of Level III hearing for both ears results in a noncompensable evaluation. See 38 C.F.R. § 4.85, Table VII. Similarly, a numeric designation of Level I hearing for both ears results in a noncompensable evaluation. See id. The Board has considered the Veteran's and his representative's assertions and in no way discounts the difficulties that the Veteran experiences as a result of hearing loss. While the Veteran is competent to report these hearing difficulties, to include use of hearing aids, the Board notes that the evaluation of hearing loss is determined by a mechanical application of the rating criteria in 38 C.F.R. § 4.85. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). As stated above, the 2016 and 2019 audiometric results do not warrant a compensable evaluation. Similarly, while the Veteran appears to assert that a compensable evaluation for hearing loss is warranted because he has a 10 percent evaluation for tinnitus, the Board notes that these disabilities are evaluated under separate rating criteria and, in this case, a compensable evaluation for hearing loss is not warranted. The Board finally notes that the AOJ correctly used the date of the Veteran's claim of service connection as the effective date for the noncompensable evaluation. See 38 C.F.R. § 3.400(b) (stating that the earliest effective date for an initial evaluation is the date of the claim of service connection unless the claim is filed within one year of separation from active service). The Board concludes that the probative evidence is against the claim of an initial compensable evaluation for hearing loss and that the doctrine of reasonable doubt is not applicable to this case. Accordingly, the claim of an initial compensable evaluation for hearing loss must be denied. K. Parakkal Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Ormson, 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.