Citation Nr: 18152591 Decision Date: 11/27/18 Archive Date: 11/23/18 DOCKET NO. 16-30 602 DATE: November 27, 2018 ORDER A rating increase in excess of 20 percent for bilateral hearing loss is denied.   FINDING OF FACT The Veteran’s bilateral hearing loss has been manifested by no worse than Level VI hearing loss in the left ear, and Level IV hearing loss in the right ear. CONCLUSION OF LAW The criteria for an increased rating in excess of 20 percent for bilateral hearing loss has not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 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 1966 to February 1968. The claim is on appeal from September 2011 and July 2016 rating decisions. In 2016, the regional office (RO) granted an increase from 0 to 20 percent with an effective date of November 2010. Because an evaluation of 20 percent is considered only a partial grant due to not being awarded the maximum benefit allowed by the rating schedule, the Veteran’s claim was considered to continue in appellate status. See AB v. Brown, 6 Vet. App. 35 (1993). The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Increased rating schedular for bilateral hearing loss. Legal Criteria Ratings are based on a schedule of reductions in earning capacity from specific injuries or a combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When after careful consideration of all procurable and assembled data a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3. Rating Schedule Disability evaluations for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Examinations are conducted using the controlled speech discrimination test (Maryland CNC) together with the results of the pure tone audiometry test. See 38 C.F.R. § 4.85. The results are analyzed using tables contained in 38 C.F.R. § 4.85, DC 6100. The rating schedule for hearing loss provides that evaluations of hearing loss range from noncompensable to 100 percent based on organic impairment of hearing acuity. This is measured by the results of a controlled speech discrimination test together with average hearing threshold levels as measured by pure tone audiometry tests in the frequencies 1000, 2000, 3000 and 4000 cycles per second (Hertz). To evaluate the degree of disability from defective hearing, the rating schedule established eleven auditory acuity levels designated from Level I for essentially normal acuity through Level XI for profound deafness. 38 C.F.R. § 4.85, DC 6100. Table VIA will be applied when an examiner certifies that the use of the speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc. This score is based only on pure tone threshold testing average. See 38 C.F.R. § 4.85 (c). 38 C.F.R. § 4.86(a) provides that when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more, 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. The provisions of 38 C.F.R. § 4.86(b) provide that when the 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. That numeral will then be elevated to the next higher Roman numeral. Each ear will be evaluated separately. Analysis The Veteran seeks an increased rating in excess of 20 percent for bilateral hearing loss after allowing his appeal to continue to the Board for only receiving a partial grant. The Veteran was afforded VA examinations with puretone audiometry measurements and the Maryland CNC Test in August 2011 and July 2016. In August 2011, puretone threshold measurements, in decibels, were reported as follows: HERTZ Right 1000 Hz 2000 Hz 3000 Hz 4000 Hz Average 20 30 80 75 51.25 Left 25 70 100 105 75 The average puretone thresholds were 51.25 in the right ear and 75 in the left ear. Speech discrimination using the Maryland CNC Test revealed scores of 96 percent in the right ear and 88 percent in the left ear. Functional impact was noted as not always being able to hear what others say, and being denied employment in 1968 due to his hearing loss. The August 2011 audiometric results correspond to Level I hearing in the right ear, and Level VI hearing in the left ear (under Table VIA because it meets an exceptional pattern of hearing impairment). These Roman numeral designations resulted in an initial noncompensable evaluation according to Table VI of 38 C.F.R. § 4.85. In July 2016, puretone threshold measurements, in decibels, were reported as follows: HERTZ RIGHT 1000 Hz 2000 Hz 3000 Hz 4000 Hz Average 40 55 75 70 60 LEFT 35 85 90 105 78.75 The average puretone thresholds were 60 in the right ear and 78.75 in the left ear. Speech discrimination using the Maryland CNC Test revealed scores of 72 percent in the right ear and 70 percent in the left ear. However, at that examination, the examiner noted that speech discrimination testing was not appropriate for the Veteran’s right ear, and thus Table VIA using puretone thresholds must be used for rating purposes. As such, the results for the right ear corresponds to Level IV hearing, and in the left ear a hearing acuity of Level VI. See 38 C.F.R. § 4.85, Tables VI and VIA. Using Table VII of 38 C.F.R. § 4.85, the scores of IV (right ear) and VI (left ear) combine for an evaluation of not more than 20 percent. Because the preponderance of the evidence is against an increased rating in excess of 20 percent for the Veteran’s bilateral hearing loss, the claim is denied. C. BOSELY Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Morford, Associate Counsel