Citation Nr: 20034449 Decision Date: 05/18/20 Archive Date: 05/18/20 DOCKET NO. 15-23 096A DATE: May 18, 2020 ORDER Entitlement to a rating in excess of 20 percent from October 13, 2010 to October 24, 2018 for bilateral sensorineural hearing loss is denied. Entitlement to a rating of 40 percent, but not more, from October 24, 2018 for bilateral sensorineural hearing loss is granted. FINDINGS OF FACT 1. From October 13, 2010 to October 24, 2018, the Veteran’s bilateral sensorineural hearing loss has been manifested by hearing acuity of no worse than Level IV in the right ear and no worse than Level VI in the left ear. 2. From October 24, 2018, the Veteran’s bilateral sensorineural hearing loss has been manifested by hearing acuity of Level VI in the right ear and Level VIII in the left ear. CONCLUSIONS OF LAW 1. From October 13, 2010 to October 24, 2018, the criteria for a rating in excess of 20 percent for bilateral sensorineural 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. 2. From October 24, 2018, the criteria for a rating of 40 percent rating, but not more, for bilateral sensorineural hearing loss have 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 FINDINGS AND CONCLUSIONS The Veteran had active service from July 1968 to July 1971. In October 2018, the Veteran testified before the undersigned Veterans Law Judge in a Video Conference Board Hearing. A transcript of the hearing is of record. In March 2019, the Board of Veterans’ Appeals (the Board) remanded the Veteran’s claims of entitlement to service connection for hypertension and for an increased rating for bilateral hearing loss to the Agency of Original Jurisdiction (AOJ) for additional development. The Veteran received the directed VA examinations in December 2019. In a March 2020 rating decision, the AOJ granted entitlement to service connection for hypertension. This constituted a complete grant of the benefit sought on appeal, and the issue is no longer before the Board. The AOJ also increased the evaluation for bilateral sensorineural hearing loss to 40 percent effective December 16, 2019, the date of a VA audiological examination. That constituted a partial grant of the benefit sought on appeal, and the issue of an increased rating for bilateral sensorineural hearing loss is once again before the Board. Entitlement to an Increased Rating for Bilateral Sensorineural Hearing Loss VA received the Veteran’s claim for an increased rating for his bilateral sensorineural hearing loss on October 13, 2010. For the period on appeal, the Veteran’s hearing loss has been evaluated as 20 percent disabling from October 13, 2010 to December 16, 2019, and 40 percent disabling from December 16, 2019. 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). If impaired hearing is service-connected in only one ear, the law allows for compensation for hearing loss as if both ears were service-connected if the service-connected hearing loss is ratable as at least 10 percent disabling and the non-service-connected hearing loss meets the standard for a hearing loss disability for VA purposes under 38 C.F.R. § 3.385, unless the non-service-connected hearing loss is the result of the Veteran’s willful misconduct. See 38 C.F.R. § 3.383. For the reasons stated below, the Board concludes that a rating in excess of 20 percent is not warranted from October 13, 2010 to October 24, 2018, the date of the Veteran’s hearing before the undersigned. The Board concludes that the 40 percent rating should be effective October 24, 2018 rather than December 16, 2019 based on the Veteran’s testimony of worsening hearing. Each of the two periods are discussed immediately below. 1. From October 13, 2010 to October 24, 2018 The Veteran received one VA audiological examinations from October 13, 2010 to October 24, 2018 for which audiometric results are included in the claims file. That examination, conducted in December 2010, reveals that the Veteran reported difficulty hearing, difficulty understanding conversational speech, difficulty hearing in the presence of background noise, difficulty hearing over the phone, difficulty localizing to the source of a sound. 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: 12/15/2010 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 20 35 80 105 60 76 LEFT 30 70 80 90 67.5 72 Applying the results to Table VI, the findings yield a numeric designation of Level IV in the right ear and Level VI in the left ear. Applying the resulting bilateral numeric designations to 38 C.F.R. § 4.85, Table VII, equates to a 20 percent disability rating under Diagnostic Code 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. Thus, a 20 percent rating, but not more is warranted. In reaching this conclusion, the Board notes that 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). Application of that rating criteria of 20 percent, but no more, is warranted during this period notwithstanding the Veteran’s statements and contentions regarding his hearing loss. The Veteran’s 20 percent rating contemplates his reported difficulties. Accordingly, the preponderance of the most probative evidence is against the claim of entitlement to a rating in excess of 20 percent for bilateral sensorineural hearing loss from October 13, 2010 to October 24, 2018. In reaching this conclusion, the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran’s claim, the doctrine does not apply here. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. From October 24, 2018 In October 24, 2018, the Veteran reported that his hearing had worsened since his most recent audiological examinations. VA treatment records in June 2014, September 2014, and November 2014 document the Veteran’s need for new hearing aids; however, they do not included audiometric data or indicate that the Veteran’s hearing had worsened. During his October 24, 2018 hearing, however, the Veteran testified under oath that his hearing had worsened since his previous examinations. For that reason, the Board remanded his claim for a new VA examination. He received that examination in December 2019, and it documented the Veteran’s Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, as follows: 12/16/2019 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 40 60 85 105 72.5 72 LEFT 40 75 90 95 75 58 Applying the results to Table VI, the findings yield a numeric designation of Level VI in the right ear and Level VIII in the left ear. Applying the resulting bilateral numeric designation to 38 C.F.R. § 4.85, Table VII, equates to a 40 percent disability rating under Diagnostic Code 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. Given the Veteran’s reports of worsening hearing during his October 24, 2018 hearing, the Board concludes that the 40 percent evaluation is warranted from that date. The Veteran is competent to testify that his hearing has worsened, and the evidence shows that it indeed worsened between his December 2010 VA examination and the December 2019 VA examination. Thus, the Board resolves reasonable doubt in the Veteran’s favor and assigns an effective date of October 24, 2018 for the 40 percent rating for bilateral sensorineural hearing loss. A rating in excess of 40 percent, however, is not shown. As noted above, disability ratings for hearing loss are derived from a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing, and here that yields a 40 percent evaluation. The Board notes the Veteran’s report in the December 2019 VA examination that he cannot hear normal sounds, to include voices, and that he often has to ask people to repeat themselves. 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). MICHAEL A. HERMAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Douglas M. Humphrey, 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.