Citation Nr: 21004901 Decision Date: 01/28/21 Archive Date: 01/28/21 DOCKET NO. 14-11 103 DATE: January 28, 2021 ORDER Entitlement to a compensable rating for service-connected bilateral hearing loss prior to May 16, 2019, and in excess of 10 percent thereafter is denied. FINDINGS OF FACT 1. Prior to May 16, 2019, the Veteran’s bilateral hearing has been manifested by hearing acuity of no worse than Level II in the right ear and no worse than Level IV in the left ear. 2. From May 16, 2019, the Veteran’s bilateral hearing has been manifested by hearing acuity of no worse than Level II in the right ear and no worse than Level V in the left ear. CONCLUSION OF LAW The criteria for entitlement to a compensable rating for service-connected bilateral hearing loss prior to May 16, 2019, and in excess of 10 percent thereafter 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 (DC) 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service in the U.S. Army from July 1970 to February 1972. In April 2020, the Board remanded this issue to obtain additional records related to the Veteran’s increased rating claim for hearing loss. Additional records were subsequently obtained. Therefore, the Board is satisfied there was substantial compliance with its remand orders. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. Entitlement to a compensable rating for service-connected bilateral hearing loss prior to May 16, 2019, and in excess of 10 percent thereafter is denied. The Veteran contends that he is entitled to a higher rating for his hearing loss. He is currently in receipt of a noncompensable disability rating prior to May 16, 2019 and a 10 percent disability rating thereafter for bilateral hearing loss under DC 6100. 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, DC 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). Turning to the relevant medical evidence, an April 2013 VA audiology examination reveals that the Veteran reported having difficulty in hearing, particularly background noise. The Veteran also reported having to ask people to repeat what they say. 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, noted as valid for rating purposes, in decibels, were as follows: April 2013 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 35 40 55 65 48.75 86 LEFT 35 50 65 65 53.75 84 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 noncompensable disability rating under DC 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. In a September 2014 private audiological evaluation, the Veteran’s pure tone thresholds, in decibels, were as follows: September 2014 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 35 45 50 55 46.25 N/A LEFT 35 55 60 70 55 N/A The Board notes that a Maryland CNC Word List speech recognition test was not performed. Therefore, the Board, with regard to this September 2014 evaluation, the Board will only use the Veteran’s pure tone threshold results. Applying the results to Table VIA, the findings yield a numeric designation of Level II in the right ear and Level III in the left ear. Entering the resulting bilateral numeric designation of Level II for the right ear and Level III for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a noncompensable disability rating under DC 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. In the February 2018 VA examination, the Veteran reported that he does not hear well unless the speaker is talking directly to him. He reported that he has been aware of his impaired hearing for many 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, noted as valid for rating purposes, in decibels, were as follows: February 2018 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 35 45 60 70 52.5 94 LEFT 40 50 65 75 57.50 76 Applying the results to Table VI, the findings yield a numeric designation of Level I in the right ear and Level IV in the left ear. Entering the resulting bilateral numeric designation of Level I for the right ear and Level IV for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a noncompensable disability rating under DC 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. A May 2019 VA examination reveals that the Veteran reported having difficulty in hearing, particularly background noise. The Veteran also reported having to watch TV on high volume and often having to ask people to repeat what they say. 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, noted as valid for rating purposes, in decibels, were as follows: May 2019 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 40 50 60 65 53.75 88 LEFT 40 50 65 75 57.50 72 Applying the results to Table VI, the findings yield a numeric designation of Level II in the right ear and Level V in the left ear. Entering the resulting bilateral numeric designation of Level II 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 DC 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. Based on the evidence above, a compensable rating prior to May 16, 2019 and in excess of 10 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 his reports of difficulty hearing others speaking and watching TV. 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 May 16, 2019 and in excess of 10 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). Based on the above, entitlement to a compensable rating for bilateral hearing loss prior to May 16, 2019, and a rating greater than 10 percent thereafter, is denied. GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. E. Grossman, 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.