Citation Nr: 21002606 Decision Date: 01/14/21 Archive Date: 01/14/21 DOCKET NO. 15-11 874 DATE: January 14, 2021 ORDER Entitlement to a disability rating of 10 percent for bilateral hearing loss prior to October 15, 2020 is granted. Entitlement to a disability rating for bilateral hearing loss in excess of 80 percent for bilateral hearing loss from October 15, 2020 is denied. FINDINGS OF FACT 1. The Veteran’s bilateral hearing has been manifested by hearing acuity of no worse than Level IV in each right ear and no worse than Level III in the left ear prior to October 15, 2020. 2. The Veteran’s bilateral hearing has been manifested by hearing acuity of no worse than Level IX in the right ear and no worse than Level XI in the left ear from October 15, 2020. CONCLUSIONS OF LAW 1. The criteria for entitlement to a disability rating of 10 percent for bilateral hearing loss prior to October 15, 2020 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. 2. The criteria for entitlement to a disability rating in excess of 80 percent for bilateral hearing loss from October 15, 2020 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 in the Army from July 1964 to July 1967. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), which granted service connection and a noncompensable rating for left ear hearing loss effective June 26, 2013. A May 2020 Board decision granted service connection for right ear hearing loss, and remanded the increased rating claim for left ear hearing loss for additional development. In August 2018, the Veteran testified at a videoconference Board hearing before the undersigned Veterans Law Judge. A transcript of that proceeding is of record. This appeal has been advanced on the Board’s docket pursuant to 38C.F.R. §20.900(c); 38U.S.C. § 7107(a)(2) (2012). INCREASED RATING The Veteran contends that he is entitled to a higher rating for his bilateral hearing loss because he has received upgraded hearing aids. See August 2018 Hearing Transcript. 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). 1. Entitlement to a disability rating of 10 percent for bilateral hearing loss prior to October 15, 2020 There is a December 2013 private audiogram of record. The Veteran’s Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: Dec. 2013 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 35 70 70 75 62.5 76 LEFT 35 70 70 80 63.75 84 Applying the results to Table VI, the findings yield a numeric designation of Level IV in the right ear and Level III in the left ear. Entering the resulting bilateral numeric designation of Level IV for the right ear and Level III 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. A February 2014 VA examination reveals that the Veteran reported difficulty understanding conversational speech, especially someone with a high pitched voice, like a woman. 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: Feb. 2014 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 30 65 60 65 55 88 LEFT 30 65 65 70 58 92 Applying the results to Table VI, the findings yield a numeric designation of Level II in the right ear and Level II in the left ear. Entering the resulting bilateral numeric designation of Level II for the right ear and Level II for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a 0 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 expressly acknowledges its consideration of the lay evidence of record when adjudicating this claim, including difficulty understanding conversational speech. 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). Upon review of the evidence and after resolving all doubt in the Veteran’s favor, the Board finds that a disability rating of 10 percent, but no higher, for the Veteran’s bilateral hearing loss is warranted prior to October 15, 2020. 2. Entitlement to a disability rating in excess of 80 percent for bilateral hearing loss from October 15, 2020 At his August 2018 Board hearing, the Veteran reported that his hearing aids were recently upgraded. 38 C.F.R. § 4.10; Martinak v. Nicholson, 21 Vet. App. 447 (2007). During an October 2020 VA examination, the Veteran’s Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: Oct. 2020 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 60 75 75 75 71.25 40 LEFT 55 80 80 85 75 30 Applying the results to Table VI, the findings yield a numeric designation of Level IX in the right ear and Level XI in the left ear. Entering the resulting bilateral numeric designation of Level IX for the right ear and Level XI for the left ear to 38 C.F.R. § 4.85, Table VII, equates to an 80 percent disability rating under Diagnostic Code 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was shown in both ears. Applying the results to Table VIA yields Level VI in the right ear and level VI in the left ear. Entering the resulting bilateral numeric designation of Level VI for the right ear and Level VI for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a 30 percent disability rating under Diagnostic Code 6100, which is less favorable. Based on the evidence above, a rating in excess of 80 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 hearing. 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, 3 Vet. App. 345. 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, 28 Vet. App. 366. 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 80 percent for hearing loss from October 15, 2020. 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). K. A. BANFIELD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. N. Wilson, 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.