Citation Nr: 20009792 Decision Date: 02/05/20 Archive Date: 02/05/20 DOCKET NO. 18-00 589 DATE: February 5, 2020 ORDER Entitlement to an evaluation in excess of 20 percent for bilateral hearing loss is denied. FINDING OF FACT Audiometric examinations show that throughout the appeal period, the Veteran had, at worst, level V hearing in the left ear and level VI hearing in the right ear. CONCLUSION OF LAW The criteria for entitlement to an evaluation in excess of 20 percent for bilateral hearing loss have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.85, 4.86(a), Diagnostic Code 6100 REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1958 to October 1959. This case comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2016 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO), which continued the 20 percent rating for bilateral hearing loss effective since February 9, 2014. In March 2019, the Board remanded this matter back to the RO for further development and a new hearing loss evaluation after the Veteran claimed his hearing loss had deteriorated. The matter has now been properly returned for appellate consideration and the Board is satisfied that there has been substantial compliance with the remand. Thus, no further action is required. Stegall v. West, 11 Vet. App. 268 (1998). The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions 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. Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Increased Rating Ratings for service-connected bilateral hearing loss range from noncompensable (0 percent) to 100 percent. These ratings are based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination testing together with the average hearing threshold level as measured by pure tone audiometry tests in the frequencies of 1000, 2000, 3000 and 4000 cycles per second. In evaluating service-connected bilateral hearing loss, disability ratings are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are performed. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992); 38 C.F.R. § 4.85. Diagnostic code (DC) 6100 provides a table for rating purposes (Table VI) to determine a Roman numeral designation (I through XI) for hearing impairment. The hearing impairment is established by a state licensed audiologist using a controlled speech discrimination test and the pure tone threshold average (which is the sum of the pure tone thresholds at 1000, 2000, 3000, and 4000 Hertz, divided by four). See 38 C.F.R. § 4.85. Table VII is used to determine the percentage rating by combining the Roman numeral designations for hearing impairment of each ear. The horizontal row represents the ear having the poorer hearing and the vertical column represents the ear having the better hearing. Id. Under 38 C.F.R. § 4.86(a), 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. Each ear is to be evaluated separately. See 38 C.F.R. § 4.86(a). 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 evaluated to the next higher Roman numeral. See 38 C.F.R. § 4.86(b). Table VIA is also utilized when the audiologist certifies that the use of the speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc. See 38 C.F.R. § 4.85(c). Here, the Veteran seeks a disability rating in excess of 20 percent for his service-connected bilateral hearing loss disability. In the November 2016 notice of disagreement, the Veteran indicated that a higher rating was warranted as his hearing loss had impacted his quality of life. He explained that his hearing impairment had highly impacted his ability to work, because he could not make out customers’ words. Further, he stated this also highly impaired his social and occupational life, as it made him unable to participate in conversations due to his uncertainty of words, making him depressed. The rating criteria contemplate speech reception thresholds and ability to hear spoken words on Maryland CNC testing. The functional impact that the Veteran describes, in his November 2016 notice of disagreement, 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). The Veteran filed his non-initial claim for an increased rating for his service-connected bilateral hearing loss in August 2016. As a result of this claim, the Veteran was scheduled for a VA examination. Audiometric testing was conducted   at an August 2016 VA examination, and the relevant results are summarized in the chart below, with pure tone threshold recorded in decibels. HERTZ 500 1000 2000 3000 4000 RIGHT 65 70 70 70 70 LEFT 60 65 70 65 65 The average pure tone threshold in the Veteran’s right ear was 70 decibels, while the average pure tone threshold in the Veteran’s left ear was 66 decibels. The audiologist also administered the Maryland CNC word list pursuant to VA regulations. See 38 C.F.R. § 4.85. The Veteran attained an 84 percent score in his right ear and an 80 percent score in his left ear. A pure tone average threshold of 70 decibels in the right ear with an 84 percent speech discrimination score equates to level III hearing acuity.38 C.F.R. § 4.85, Table VI. A pure tone average threshold of 66 decibels in the left ear with an 80 percent speech discrimination score equates to level IV hearing acuity. Under Table VII, level III hearing acuity in the right ear and level IV hearing acuity in the left ear equates to a 10 percent rating for hearing impairment. 38 C.F.R. § 4.85, Table VII. However, table VIA is applicable in this circumstance, and under this table, the right ear yields a level VI hearing acuity, and the left ear yields a level V hearing acuity; applied to Table VII, this equates to a 20 percent rating. See 38 C.F.R. § 4.86(a). Since using Table VIA is more beneficial to the Veteran, the higher rating is used. Based on these findings, the 20 percent rating is warranted, but no higher. The Veteran filed a notice of disagreement and in November 2016. When it came before the Board in March 2019, it was remanded for an updated audiological exam and medical records.   An audiological re-examination was performed at a VA health care center on October 22, 2019. The relevant results are summarized in the chart below, with pure tone threshold recorded in decibels. HERTZ 500 1000 2000 3000 4000 RIGHT 50 60 60 60 65 LEFT 50 55 60 55 65 The average pure tone threshold in the Veteran’s right ear was 61 decibels, while the average pure tone threshold in the Veteran’s left ear was 59 decibels. The audiologist also administered the Maryland CNC word list pursuant to VA regulations. See 38 C.F.R. § 4.85. The Veteran attained a 92 percent score in his right ear and a 90 percent score in his left ear. A pure tone average threshold of 61 decibels in the right ear with a 92 percent speech discrimination score equates to level II hearing acuity.38 C.F.R. § 4.85, Table VI. A pure tone average threshold of 59 decibels in the left ear with an 90 percent speech discrimination score equates to level III hearing acuity. Under Table VII, level II hearing acuity in the right ear and level III hearing acuity in the left ear equates to noncompensable rating for hearing impairment. 38 C.F.R. § 4.85, Table VII. Table VIA is also applicable in this circumstance, and under this table, the right ear yields a level IV hearing acuity, and the left ear yields a level IV hearing acuity, resulting in a 10 percent rating once applied to Table VII. Since using Table VIA is more beneficial to the Veteran, the higher rating is assigned. These levels of hearing loss do not warrant a rating in excess of the currently-assigned 20 percent rating. In fact, these hearing levels would generally warrant a 10 percent rating. However, the Board will not disturb the currently assigned 20 percent rating.   As noted above, disability ratings for hearing loss are generally based on objective testing by a state-licensed audiologist. The record contains no evidence that the Veteran is a licensed audiologist and, moreover, he has not provided any audiometric testing results of his own. For these reasons, the Board finds that his assertions are not competent evidence of his degree of hearing loss. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The greater weight of the medical evidence is against granting a disability rating in excess of 20 percent for the Veteran's bilateral hearing disability during any portion of the appeal period. The evidence is not in equipoise, so the benefit-of-the-doubt rule does not apply. Gilbert v. Derwinski, 1 Vet. App. 49, 54(1990). Accordingly, the Veteran's claim for a rating in excess of 20 percent disabling for bilateral hearing loss is denied. MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Mireya Martinez 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.