Citation Nr: 20034448 Decision Date: 05/18/20 Archive Date: 05/18/20 DOCKET NO. 17-23 217 DATE: May 18, 2020 ORDER Entitlement to an initial rating in excess of 20 percent, prior to August 26, 2019, and in excess of 30 percent thereafter for bilateral hearing loss is denied. FINDINGS OF FACT 1. From July 5, 2016, the Veteran’s bilateral hearing loss has not been manifested by hearing impairment in excess of 20 percent evaluation. 2. From August 26, 2019, the Veteran’s bilateral hearing loss has not been manifested by hearing impairment in excess of 30 percent evaluation. CONCLUSIONS OF LAW 1. From July 5, 2016, the criteria for a rating in excess of 20 percent for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100. 2. From August 26, 2019, the criteria for a rating in excess of 30 percent for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from April 1955 to April 1959. This matter is on appeal to the Board of Veterans’ Appeals (Board) from a December 2016 rating decision of a regional office (RO) of the Department of Veterans Affairs (VA) which granted service connection for bilateral hearing loss with an initial evaluation of 20 percent, effective July 5, 2016. In April 2019, the Veteran testified at a Board hearing via videoconference before the undersigned Veterans Law Judge. In July 2019, the case was remanded for a current examination. Thereafter, in a March 2020 rating decision, the RO increased the disability rating for the Veteran’s hearing loss to 30 percent, effective August 26, 2019. However, inasmuch as a higher rating is available and as the Veteran is presumed to seek the maximum available benefit for a disability, this claim for a higher rating remains in appellate status and is properly before the Board. AB v. Brown, 6 Vet. App. 35 (1993). Bilateral Hearing Loss As noted above, service connection was granted in December 2016 with an initial evaluation of 20 percent, effective July 5, 2016. By a March 2020 rating decision, a 30 percent disability rating was assigned from August 26, 2019. The Veteran’s hearing loss is evaluated under 38 C.F.R. § 4.85, Diagnostic Code 6100. The Board points out that the assigned evaluations for hearing loss are determined by mechanically applying the rating criteria to certified test results. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Under Diagnostic Code 6100, ratings for hearing loss are determined in accordance with the findings obtained on audiometric examination. Evaluations of hearing impairment range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests, together with the average hearing threshold level as measured by pure tone audiometry tests in the frequencies 1,000; 2,000; 3,000; and 4,000 Hertz (cycles per second). To evaluate the degree of disability from hearing impairment, the rating schedule establishes eleven auditory acuity levels designated from Level I for essentially normal acuity through Level XI for profound deafness. 38 C.F.R. § 4.85, Diagnostic Code 6100. As set forth in the regulations, Tables VI, VIa, and VII are used to calculate the rating to be assigned. See 38 C.F.R. § 4.85, Diagnostic Code 6100. Hearing tests will be conducted without hearing aids, and the results of above-described testing are charted on Table VI and Table VII. See 38 C.F.R. § 4.85. In November 2016, the Veteran was afforded a VA contract examination. Results from the audiogram reflect that pure tone air conduction thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 35 60 65 70 LEFT 50 70 75 80 Pure tone threshold averages were 57.5 decibels for the right ear and 68.75 decibels for the left ear. Speech audiometry using the Maryland CNC tests revealed speech recognition ability of 80 percent in the right ear and 46 percent in the left ear. Based on the November 2016 audiogram results, with the utilization of Table VIa, the Veteran has Level VIII hearing impairment in the right ear and Level IV hearing impairment in the left ear. On application of those findings to Table VII, results in a 20 percent disability rating under 38 C.F.R. § 4.85, Diagnostic Code 6100. The record reflects two additional VA audiological evaluations dated in March 2017 and in February 2019. However, as explained in the July 2019 Board remand, the examinations are not adequate for rating purposes as a Maryland CNC speech discrimination test was not conducted during either examination as required by 39 C.F.R. 4.85. Furthermore, the February 2019 audiological evaluation did not include puretone thresholds for 3000 hertz, and consequently not adequate for rating purposes. In compliance with the Board’s July 2019 remand, the Veteran was afforded a VA audiological examination in August 2019. Results from the audiogram reflect that pure tone air conduction thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 65 70 70 70 LEFT 60 70 75 80 Pure tone threshold averages were 69 decibels for the right ear and 71 decibels for the left ear. Speech audiometry using the Maryland CNC tests revealed speech recognition ability of 72 percent in the right ear and 64 percent in the left ear. Based on the August 2019 audiogram results, with the utilization of Table VIa, the Veteran has Level VI hearing impairment in the right ear and Level V hearing impairment in the left ear. On application of those findings to Table VII, results in a 20 percent disability rating under 38 C.F.R. § 4.85, Diagnostic Code 6100. As demonstrated above, the evaluation for hearing loss is based on objective testing. In the present case, the Board observes that the Veteran’s hearing loss disability has not shown to rise to the level of symptomatology required to support a higher rating. Thus, the objective November 2016 and August 2019 VA audiological examinations do not support an assignment of a disability rating in excess of what the RO has already awarded. In fact, the Board notes that the August 2019 audiological evaluation demonstrates findings consistent with a 20 percent disability rating under Diagnostic Code 6100. However, given that an increased rating was awarded to 30 percent from August 26, 2019, the date of the VA examination, the Board finds that the Veteran is adequately compensated by the currently assigned evaluations. Furthermore, the Board does not find any other objective evidence to support a higher rating in excess of 20 percent prior to August 26, 2019, and in excess of 30 percent thereafter at any point during the appeal period. The Board has considered the Veteran’s contentions with regard to his claim for higher ratings. Although the Board does not doubt the sincerity of the Veteran’s belief that his hearing is more disabling than reflected in the current ratings, as a lay person without the appropriate medical training or expertise, he simply is not competent to provide a probative opinion on a medical matter, such as the severity of a current disability as evaluated in the context of the rating criteria. Lastly, the Board observes that the above November 2016 and August 2019 VA audiological examinations are based on consideration of the applicable provisions of VA’s rating schedule and consider the Veteran’s statements of the effects of his hearing impairments on his daily life. See Martinak v. Nicholson, 21 Vet. App. 447 (2007). However, even with consideration of those problems, a rating higher than the currently assigned is not warranted under the relevant criteria. 38 C.F.R. § 4.85, Diagnostic Code 6100. (Continued on the next page)   Accordingly, the claim must be denied. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. A., 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.