Citation Nr: 21001143 Decision Date: 01/07/21 Archive Date: 01/07/21 DOCKET NO. 18-38 676A DATE: January 7, 2021 ORDER Entitlement to a rating in excess of 20 percent for bilateral hearing loss is denied. FINDING OF FACT The 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 VI in the left ear. CONCLUSION OF LAW 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. §§ 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from October 1945 to September 1946 and from August 1947 to October 1948. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2017 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In April 2020, the Board remanded the claim for additional development. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900. 38 U.S.C. § 7107 (a)(2). 1. Entitlement to a rating in excess of 20 percent for bilateral hearing loss The Veteran contends that his audiogram examinations show a decrease in hearing (moderate to severe) in both ears for which a higher rating is warranted. Disability evaluations are determined by the application of a schedule of ratings that is based on the average impairment of earning capacity. Separate diagnostic codes (DCs) identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. The Veteran’s entire history is reviewed when making disability evaluations. See Schafrath v. Derwinski, 1 Vet. App. 589 (1995). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibits symptoms that would warrant different evaluations during the course of the appeal, the assignment of staged ratings is appropriate. See Fenderson v. West, 12 Vet. App. 119, 126-127 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 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 May 2017 VA examination reportreveals that the Veteran reported worsening hearing loss for the previous 5 years. 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: May 2017 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 35 65 75 85 65 76% LEFT 45 80 95 100 80 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. Entering the resulting bilateral numeric designation of Level IV for the right ear and Level VI for the left ear 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. At an October 2020 VA examination, 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 70 75 85 68.75 76% LEFT 40 65 75 80 65.00 72% Applying the results to Table VI, the findings yield a numeric designation of Level IV in the right ear and Level V in the left ear. Entering the resulting bilateral numeric designation of Level IV for the right ear and Level V 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. The Board has also considered the private audiogram examinations dated in July 2017, May 2018, August 2018, and September 2018; however, these examinations are not valid for rating purposes as they do not reflect the use of the Maryland CNC test for speech recognition testing. Specifically, the July 2017 report reflects use of the NU6/PHK test. The May 2018 and August 2018 reports did not include speech recognition testing. The September 2018 report contains speech recognition results, but even were the Board able to use these findings in the adjudication of this appeal, they would not result in a rating in excess of 20 percent. Based on the evidence above, a rating in excess of 20 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 the Veteran’s report of decreased hearing in both ears. 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 rating in excess of 20 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). D. JOHNSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Lauritzen, 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.