Citation Nr: A19002035 Decision Date: 10/17/19 Archive Date: 10/17/19 DOCKET NO. 190617-24715 DATE: October 17, 2019 ORDER Entitlement to a rating in excess of 10 percent for service-connected bilateral hearing loss is denied. FINDING OF FACT For the appeal period, the Veteran’s service-connected bilateral hearing loss has not manifested more than Level II hearing in the right ear, or more than Level VII hearing in the left ear. CONCLUSION OF LAW The criteria for entitlement to a rating in excess of 10 percent for service-connected bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from April 1966 to January 1969. This matter is before the Board of Veterans’ Appeals (Board) on appeal from an August 2019 Appeals Modernization Act (AMA) rating decision that considered the evidence of record on that date. In its decision, the Agency of Original Jurisdiction (AOJ) granted an increased rating of 10 percent for service-connected bilateral hearing loss effective July 25, 2019 (the date of the Veteran’s supplemental claim). The Veteran timely appealed this decision to the Board by requesting the AMA Direct Review lane for a reevaluation of the evidence considered by the AOJ. As this is a Direct Review appeal under the AMA, the record closed on the date of the August 28, 2019 rating decision. 1. Entitlement to a rating in excess of 10 percent for service-connected bilateral hearing loss. 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. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Examinations are conducted using the controlled speech discrimination tests (Maryland CNC) with the results of the puretone audiometry test. 38 C.F.R. § 4.85. The results are analyzed using tables contained in 38 C.F.R. § 4.85, DC 6100. “Puretone threshold average,” as used in Tables VI and VIa, is the sum of the puretone thresholds at 1000, 2000, 3000 and 4000 Hertz, divided by four. This average is used to determine the Roman numeral designation for hearing impairment from Table VI or VIa. The appropriate rating is then found by finding the intersection point for the two Roman numeral designations using Table VII. When the puretone threshold at each of the four frequencies of 1,000, 2,000, 3,000 and 4,000 Hz is 55 decibels (dB) 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. Each ear will be evaluated separately. When the puretone thresholds are 30 dB or less at 1,000 Hz, and 70 dB or more at 2,000 Hz, 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 higher Roman numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86. The standard of proof to be applied in decisions on claims for veterans’ benefits is set forth in 38 U.S.C. § 5107. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. 38 C.F.R. § 3.102. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the claimant. 38 C.F.R. § 4.3. The Veteran asserts that his service-connected bilateral hearing loss is more severe than his current rating reflects. His bilateral hearing loss is currently rated as 10 percent disabling. A private medical record dated in July 2019 reflects that the Veteran underwent audiometric testing. The audiogram disclosed that puretone decibel levels in the right ear at the 1000, 2000, 3000 and 4000 Hertz ranges were, respectively, 25, 30, 60, and 95; and in the left ear were, respectively, 35, 60, 70, and 90. The average puretone decibel loss in the right ear was 53, and in the left ear was 64. Speech discrimination testing disclosed speech discrimination of 96 percent in each ear. The Board notes that it is unclear whether the speech discrimination testing used the Maryland CNC protocol, as required by 38 C.F.R. § 4.85; if it did not, the July 2019 audiometric testing would be invalid for rating purposes. However, affording the veteran the benefit of the doubt, the Board finds that the testing is valid. Applying the results of the testing to Table VI results in a value of Level I hearing impairment for the right ear, and of Level II impairment for the right ear. Applying those results to Table VII results in a noncompensable evaluation under Diagnostic Code 6100. The Board notes that Table VIa is not for application, as the veteran did not demonstrate decibel loss of 55 in each of the pertinent frequencies for either ear, and because in neither ear did the veteran demonstrate a decibel loss of 30 or less in the 1000 Hertz range and a decibel loss of 70 or more in the 2000 Hertz range. The Veteran underwent a VA audiological examination in August 2019, and the examiner’s recorded pure tone thresholds, in decibels, at 1000, 2000, 3000, and 4000 hertz (Hz) were as follows (with “CNT” indicating that the indicated frequency could not be tested because the limits of the audiometer was reached): 30, 30, 70, 100 for the right ear, with an average of 58; and 60, 75, 85, CNT for the left ear, with an average of CNT. Speech recognition scores were 94 percent for the right ear and 88 percent for the left ear. The Veteran reported difficulty hearing from a distance and in groups with background noise. Given that the CNT designation was accompanied by a notation from the examiner that the testing results were valid, the Board will assign the veteran a score of 98 for the decibel loss in the 4000 Hertz range. This is because under Table VI, the highest category of decibel loss recognized is “98+”. This results in an average puretone device loss for the left ear of 80. Applying the results of the testing to Table VI results in a value of Level II hearing loss in the right ear, and of a Level III hearing loss in the left ear. Applying those results to Table VII results in a noncompensable evaluation under Diagnostic Code 6100. However, the left ear results (but not the right ear results) implicate the provisions of Table VIa because each pertinent frequency in the left ear had at least a 55 decibel loss. Applying the results of Table VIa to the left ear results in a designation of Level VII hearing loss. Applying the Level II hearing loss for the right ear and the Level VII hearing loss for the left ear to Table VII results in a rating of 10 percent under Diagnostic Code 6100. Accordingly, the medical evidence of record demonstrates that the veteran’s bilateral hearing loss warrants a 10 percent rating, and that none of the medical evidence supports a rating higher than 10 percent. (Continued on the next page)   Based on the evidence, there is no basis to increase the currently assigned evaluation. The Board does not discount the Veteran’s contention with respect to his perceived hearing acuity; however, schedular disability ratings for hearing loss are based on the results of the audiological studies of record. Lendenmann, 3 Vet. App. 345. Accordingly, a higher rating for bilateral hearing loss is not warranted. See 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. Thomas H. O'Shay Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Peden, 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.