Citation Nr: 22013237 Decision Date: 03/09/22 Archive Date: 03/09/22 DOCKET NO. 18-35 606 DATE: March 9, 2022 ORDER A compensable rating for bilateral hearing loss is denied. FINDING OF FACT The Veteran's bilateral hearing loss was no worse than Level III in the right ear and Level III 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. §§ 1131 5107; 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty with the United States Air Force from February 1982 to October 1986. In November 2017, the Veteran died. His surviving spouse has been properly substituted to continue the appeal. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a July 2017 rating decision. In October 2021, the appellant testified at a Board hearing. A transcript of the hearing has been associated with the record. Prior to the Board's hearing, the appellant offered her concerns about applying for additional benefits, including possible death benefits. As those issues have not been claimed to this point, and do not relate to the matter before the Board, the Board cannot remand or refer such claims for any action at this time. The appellant is encouraged to speak with he representative for assistance in filing any other claims. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries. 38 U.S.C. § 1155; 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 for that rating. 38 C.F.R. § 4.7. Evaluations of defective hearing range from 0 percent (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. 1. Bilateral Hearing Loss The appellant contends the Veteran's bilateral hearing loss deserved a compensable rating (meaning a rating higher than 0 percent) because of its severity. The Veteran was afforded a VA audiological examination in July 2017. He had auditory thresholds of 25, 20, 30, 50, and 60 decibels at the frequencies of 500, 1000, 2000, 3000, and 4000 Hertz for the right ear. The left ear had auditory thresholds of 25, 15, 20, 50, and 55 decibels at the same frequencies. Speech audiometry revealed speech recognition ability of 82 percent in the right ear and of 82 in the left ear. These results are properly rated under Table VI, such that the hearing impairment levels correspond to Level III for the right ear and Level III for the left ear. Intersecting Levels III and III under Table VII result in a noncompensable disability rating, as currently assigned. See 38 C.F.R. § 4.85(c). That VA examination is adequate and probative, as it was based on an in-person examination and contained sufficient information for the Board to reach a conclusion. It is also the best evidence of the Veteran's hearing acuity prior to his death, as his VA treatment records contain no other pertinent testing or information. The Board is sympathetic to the appellant and has considered the lay evidence of record when adjudicating this claim, including the Veteran's reported difficulty hearing conversations. He was competent to report difficulty with his hearing, and so, too, is his spouse, when testifying about his hearing loss during her recent October 2021 hearing before this Board. However, disability ratings for hearing loss are derived from a mechanical (meaning nondiscretionary) application of the Rating Schedule to the numeric designations resulting from audiometric testing. Lendenmann v. Principi, 3 Vet. App. 345 (1992). Moreover, the rating criteria contemplate speech reception thresholds and ability to hear spoken words on Maryland CNC testing. The functional impact described is precisely contemplated by the rating criteria. Doucette v. Shulkin, 28 Vet. App. 366 (2017). The main complaint was reduced hearing acuity and clarity, which is exactly what is contemplated in the rating assigned. See Rossy v. Shulkin, 29 Vet. App. 142, 145 (2017). Thus, the weight of the evidence is against the claim and is not in approximate balance. There is no other evidence to reflect more severe audiometry results. In reaching this conclusion, the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the claim, this doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Evan M. Deichert Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Henriquez, 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.