190509-12855

• Court: Board of Veterans' Appeals
• Decided: October 31, 2019
• Docket: 190509-12855
• Status: Unpublished

Opinion

Citation Nr: AXXXXXXXX Decision Date: 10/31/19 Archive Date: 10/31/19

DOCKET NO. 190509-12855 DATE: October 31, 2019

ORDER

An initial compensable rating for bilateral hearing loss disability 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 on active duty from June 1965 to August 1969.

This appeal comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2019 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO).

The Veteran timely appealed this Appeals Modernization Act (AMA) rating decision to the Board. He limited his appeal to the issue of entitlement to an initial compensable rating for bilateral hearing loss and requested Direct Review of the evidence considered by the agency of original jurisdiction (AOJ). See VA Form 10182 (May 2019).

This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.800(c). 38 U.S.C. § 7107(b).

Entitlement to an initial compensable rating for bilateral hearing loss.

The Veteran, and his representative, contends that a 10 percent rating for bilateral hearing loss is warranted. Specifically, the Veteran argues that a compensable rating is warranted because he has difficulty hearing without hearing aids and because he has an average decibel loss of 55 in the left ear and 39 in the right ear.

The Board concludes that the preponderance of the evidence is against finding that a compensable rating for hearing loss is warranted at any time during the appeal period. 38 C.F.R. §§ 4.7, 4.85, 4.86, Diagnostic Code 6100.

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).

A March 2019 VA examination report reveals, among other things, that the Veteran reported difficulty understanding speech in the presence of background noise and that he has trouble with conversation in noisy restaurant settings. 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 2019 HERTZ

1000 2000 3000 4000 Avg CNC

RIGHT 15 30 45 65 39 100%

LEFT 15 60 70 75 55 94%

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 noncompensable disability rating under Diagnostic Code 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown.

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 lay report that he has difficulty hearing without his hearing aids. 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).

C.A. SKOW

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board A. Griffey, 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.