Citation Nr: 21000834 Decision Date: 01/06/21 Archive Date: 01/06/21 DOCKET NO. 16-00 188 DATE: January 6, 2021 ORDER Entitlement to a disability rating in excess of 10 percent for service-connected bilateral hearing loss is denied. FINDING OF FACT Veteran’s bilateral hearing has been manifested by hearing acuity of no worse than Level IV in the right ear and no worse than Level IV in the left ear. CONCLUSION OF LAW The criteria for a rating in excess of 10 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 FINDING AND CONCLUSION The Veteran served on active duty from October 1978 to November 1982 in the United States Navy. In June 2019, the Board remanded the claims for additional development. There has been substantial compliance with the remand in connection with claims decided here and the Board will proceed with adjudication. Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to a disability rating in excess of 10 percent for service-connected bilateral hearing loss is denied. The Veteran contends that he is entitled to a higher rating because of more severe impairments to his hearing. After the Board remand, the Agency of Original Jurisdiction (AOJ) increased the rating to 10 percent, effective February 1, 2013. See July 2020 rating decision. 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). A November 2013 VA examination reveals that the Veteran reported that he has difficulty hearing the radio, phone, and television, as well as difficulty hearing and understanding conversations in person, on the telephone, and on a work radio. 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: [November 2013] HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 40 35 60 65 50 86% LEFT 40 40 65 75 55 80% A December 2015 VA examination reveals that the Veteran reported difficulty hearing and understanding others. 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: [December 2015] HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 40 35 65 60 50 78% LEFT 30 35 65 60 48 84% A December 2019 VA examination reveals that the Veteran reported difficulty hearing normal conversations in noise and groups. 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: [December 2019] HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 40 50 70 75 59 76% LEFT 45 55 75 85 65 80% The Veteran’s private medical treatment records also include an audiological evaluation, dated January 2014. However, the Board notes that the speech discrimination test utilized was the NU-6 (Northwestern University Auditory Test Number Six), not the Maryland CNC, which cannot be applied to Table VI of 38 C.F.R. § 4.86(b) and cannot be used. The Board notes that the Veteran’s VA treatment records include several audiology notes that include characterizations of the severity of his bilateral hearing loss at the 500 to 8000 Hz levels and word recognition scores. However, these records did not specify, in decibels, the pure tone thresholds or confirm that the Maryland CNC test was used to determine the word recognition scores. Applying the results to Table VI, the findings yield a numeric designation of no worse than Level IV in the right ear and Level IV in the left ear. Entering the resulting bilateral numeric designation of Level IV for the right ear and Level IV for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a 10 percent disability rating under Diagnostic Code 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown on any VA examination. Based on the evidence above, a rating in excess of 10 percent 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 difficulty with hearing and understanding conversations in the presence of background noise while in-person, on the telephone, and on his work radio. 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 evidence is against the claim of entitlement to a rating in excess of 10 percent 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). 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.