Citation Nr: 21000283 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 19-00 612A DATE: January 5, 2021 ORDER Entitlement to a compensable disability rating prior to October 24, 2020 and in excess of 30 percent thereafter for service-connected bilateral hearing loss is denied. REMANDED Entitlement to service connection for a dental disorder for the purposes of treatment only is remanded. FINDINGS OF FACT 1. Prior to October 24, 2020 the Veteran’s bilateral hearing has been manifested by hearing acuity of no worse than Level I in the right ear and no worse than Level II in the left ear. 2. Since October 24, 2020 the Veteran’s bilateral hearing has been manifested by hearing acuity of no worse than Level V in the right ear and no worse than Level VII in the left ear. CONCLUSIONS OF LAW 1. Prior to October 24, 2020 the criteria for a compensable rating for bilateral 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. Since October 24, 2020 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. §§ 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1951 to December 1954. The appeal was most recently before the Board in May 2020 and remanded for additional development. There has been substantial compliance with the remand in connection with claim decided here and the Board will proceed with adjudication. Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to an increased rating for service-connected bilateral hearing loss. The Veteran contends that he is entitled to a higher rating because of more significant impacts associated with his hearing loss. 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). At a June 2018 VA examination, the Veteran described the functional impact of his hearing loss as needing to be in close proximity to the source of speech or noise to understand properly. 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: [June 2018] HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 20 25 50 60 39 96% LEFT 20 35 55 60 42 96% An exceptional pattern of hearing loss was not shown in either ear. An October 2020 VA examination described the functional impact of his hearing loss as a “nuisance.” 38 C.F.R. § 4.10; Martinak, 21 Vet. App. at 447. The Veteran’s Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: [October 2020] HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 45 50 65 70 58 70% LEFT 55 65 85 95 75 66% An exceptional pattern of hearing loss was noted in the left ear. 38 C.F.R. § 4.86(a). The Veteran’s private treatment records include audiological evaluation that utilized the NU-6 (Northwestern University Auditory Test Number Six) for speech discrimination testing. As that speech recognition testing did not utilize the Maryland CNC, the scores cannot be considered. 38 C.F.R. § 4.85. Applying the June 2018 results to Table VI, the findings yield a numeric designation of Level I in the right ear and Level II in the left ear. Entering the resulting bilateral numeric designations to 38 C.F.R. § 4.85, Table VII, equates to a noncompensable disability rating under Diagnostic Code 6100. Applying the October 2020 results to Table VI, the findings yield a numeric designation of Level V in the right ear and Level VII in the left ear. Entering the resulting bilateral numeric designations to 38 C.F.R. § 4.85, Table VII, equates to a 30 percent disability rating under Diagnostic Code 6100. With consideration of the exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 shown in the left ear, Table VIa yields a designation of level VI in the left ear. Entering the resulting bilateral numeric designation of Level V for the right ear and Level VI for the left ear to 38 C.F.R. § 4.85, Table VII, would equate to a 20 percent disability rating under Diagnostic Code 6100. Here, Table VII yields the highest rating. Based on the evidence above, a compensable rating prior to October 24, 2020 and a rating in excess of 30 percent thereafter for the Veteran’s bilateral hearing loss is not warranted. The Board expressly acknowledges its consideration of the lay evidence of record when adjudicating this claim, including the Veteran’s descriptions of difficulty understanding or identifying speech without close proximity and the nuisance of hearing impairment. The Veteran is competent to report difficulty with his hearing; however, 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). The rating criteria contemplate speech reception thresholds and ability to hear spoken words on Maryland CNC testing. 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). Accordingly, the preponderance of the most probative evidence is against the claim of entitlement to a compensable rating prior to October 24, 2020 and a rating in excess of 30 percent thereafter for hearing loss. In reaching the conclusion above, the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran’s claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND Entitlement to service connection for a dental disorder for treatment purposes only is remanded. Unfortunately, there has not been substantial compliance with the Board’s previous remand directives regarding the issue of entitlement to service connection for a dental disorder for treatment purposes only. Another remand is required. Stegall, 11 Vet. App. at 271. The Board’s previous remand specifically noted that a referral to the Veteran’s Health Administration (VHA) was necessary to determine eligibility for VA dental treatment. The amended version of 38 C.F.R. § 3.381 clarifies that Veteran Benefts Administration (VBA) will adjudicate a claim for service connection of a dental disorder for treatment purposes after VHA determines that a veteran meets the basic eligibility requirements of 38 C.F.R. § 17.161 and requests that VBA determine the answers to relevant questions. 38 C.F.R. § 3.381(a). There is no indication that the referral was ever made before the AOJ after the prior remand. The matters are REMANDED for the following action: Refer the case to the appropriate location within VHA for a determination regarding the Veteran’s basic eligibility for VA dental treatment. A copy of the resulting determination should be associated with the record. Then, conduct all development warranted by the VHA’s finding. M.E. Larkin Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P.S. McLeod 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.