Citation Nr: 21061252 Decision Date: 10/01/21 Archive Date: 10/01/21 DOCKET NO. 14-32 294A DATE: October 1, 2021 ORDER Entitlement to an evaluation of 10 percent for bilateral hearing loss, beginning April 5, 2016, is granted. Entitlement to an evaluation in excess of 10 percent, beginning April 5, 2016, is denied. FINDINGS OF FACT 1. Resolving reasonable doubt in favor of the Veteran, for the entire period on appeal his hearing loss was manifested by a hearing acuity of no more than Level V for the right ear and no more than Level IV for the left ear, but no higher. 2. For the entire appeal period the Veteran's hearing acuity was not manifested by a hearing acuity equivalent to a disability evaluation higher than 10 percent. CONCLUSIONS OF LAW 1. Beginning April 5, 2016, the criteria for an increased evaluation of 10 percent for bilateral hearing loss have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85, Diagnostic Code (DC) 6100. 2. Beginning April 5, 2016, the criteria for an evaluation in excess of 10 percent, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85, DC 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from October 1974 to March 1975 and in the United States Navy from November 1978 to December 1998. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2017 rating decision of a Department of Veteran Affairs (VA) Regional Office (RO) which confirmed and continued the previously assigned noncompensable disability rating for bilateral hearing loss. The Veteran submitted a notice of disagreement with this determination in March 2017, and subsequently perfected his appeal in July 2017. Also in July 2017, a supplemental statement of the case increased the Veteran's disability rating for bilateral hearing loss to 10 percent, effective April 5, 2016, and reduced this rating back to a noncompensable rating from January 5, 2017. This issue came before the Board in April 2019 and again in August 2020, where it was remanded for additional evidentiary development. In a July 2021 rating decision, the Veteran was granted a10 percent disability evaluation for bilateral hearing loss, effective June 10, 2021, but was reassigned a noncompensable evaluation prior to that date. The Board notes that since the assignment of a 10 percent rating, effective June 10, 2021, and a reassignment of a noncompensable evaluation before June 10, 2021 for the Veteran's bilateral hearing loss disability, did not constitute a full grant of the benefits sought, this issue remains in appellate status. Accordingly, the issue of an entitlement to increased disability rating has been recharacterized as indicated in the ORDER above. AB v. Brown, 6 Vet. App. 35, 39 (1993). Rating Principles A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule). See generally 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can practicably be determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 C.F.R. § 4.27. Where there is a question as to which of two ratings to apply, VA will assign the higher rating if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. § 4.7. Otherwise, it will assign the lower rating. Id. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Bilateral Hearing Loss The Veteran seeks an increased evaluation for his service-connected bilateral hearing loss under DC 6100, asserting the condition has adversely affected his quality of life, by causing him to annoy others when talking loudly, turning up the television volume, and asking people to repeat themselves. See Veteran's Correspondence, received August 27, 2018. Hearing loss is rated under the criteria of 38 C.F.R. § 4.85, DC 6100. Evaluation for defective hearing are based upon organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests, along with the average hearing threshold level as measured by puretone audiometric tests in the frequencies of 1000, 2000, 3000, and 4000 Hertz. 38 C.F.R. § 4.85, Tables VI, VII. To evaluate the degree of disability for service-connected bilateral hearing loss, the rating schedule established eleven auditory acuity levels, designated from level I for essentially normal acuity, through level XI for profound deafness. Table VI is used to determine the Roman numeric designation, based on test results consisting of puretone thresholds and controlled speech discrimination (Maryland CNC) test scores. Id. The numeric designations are then applied to Table VII to determine the appropriate rating for hearing impairment. Id. Exceptional patterns of hearing impairment, which cannot always be accurately assessed under the standards of 38 C.F.R. § 4.85, may be evaluated under the provisions of 38 C.F.R. § 4.86. These provisions apply when either the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more, or when the puretone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz. 38 C.F.R. § 4.86(b). If either of these provisions applies, each ear is evaluated separately. 38 C.F.R. § 4.86. The Roman numeral designation for the ear with an exceptional pattern of hearing impairment is derived from Table VI or VIa, whichever results in the higher numeral. 38 C.F.R. § 4.86 (a). When 38 C.F.R. § 4.86(b) is applicable, the assigned numeral is elevated to the next higher Roman numeral. 38 C.F.R. § 4.86(b). Table VIa will also be applied when an examiner certifies that the use of the speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc. 38 C.F.R. § 4.85 (c). The Veteran submitted an April 2016 private audiometry report, where the Veteran reported he was concerned about worsening hearing loss for several years. The Veteran's Maryland CNC Word List speech recognition score and puretone thresholds, in decibels, were as follows: HERTZ CNC 500 1000 2000 3000 4000 AVG % RIGHT 55 55 65 75 75 68 84 LEFT 45 45 65 75 75 65 84 Applying the results to Table VI, the findings yield a numeric designation of Level III in the right ear and Level III in the left ear. However, an exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was shown for the right ear, therefore a designation of level V is assigned under Table VIa, as it results in a higher numeral. Entering the resulting numeric designation of Level V for the right ear and level III for the left ear into 38 C.F.R. § 4.85, Table VII equates to a 10 percent disability rating under DC 6100. In January 2017 the Veteran underwent VA examination, the Maryland CNC Word List speech recognition score and puretone thresholds, in decibels, were as follows: HERTZ CNC 500 1000 2000 3000 4000 AVG % RIGHT 40 35 45 65 60 51.25 100 LEFT 30 35 45 60 60 50 100 Applying the results to Table VI, the findings yield a numeric designation of Level I in the right ear and Level I in the left ear. Entering the resulting bilateral numeric designation of Level I for the right ear and the left ear into 38 C.F.R. § 4.85, Table VII equates to a 0 percent disability rating under DC 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. At the October 2019 VA examination, the puretone thresholds could not be tested and the examiner indicated the tests results were not valid for rating purposes. The examiner noted that the acoustic reflexes were inconsistent with admitted puretone thresholds and the results obtained at the examination were inconsistent with organic hearing loss. The Maryland CNC speech recognition score was 96 percent for the right ear and 94 percent for the left ear. During a January 2020 appointment for hearing aid adjustment, the Veteran was noted to have moderately-severe sloping to severe sensorineural bilateral hearing loss, with a speech discrimination score of 84 percent for both the right and left ear. See January 31, 2020 VA Medical Center audiology treatment record. The audiometry report shows the recorded CIDW-22 Word List was administered to determine the Veteran's speech discrimination score. As the Maryland CNC speech discrimination test was not administered, the Board cannot use the examination results for rating purposes. See 38 C.F.R. § 4.85 (a). During the June 2021 VA examination, the Veteran reported his hearing loss impaired his daily activities, as he could not hold conversations without frequently requests to repeat things due to difficulty hearing and understanding speech. His Maryland CNC Word List speech recognition score and puretone thresholds, in decibels, were as follows: HERTZ CNC 500 1000 2000 3000 4000 AVG % RIGHT 45 45 60 70 80 64 78 LEFT 40 45 60 70 75 63 76 Applying the results to Table VI, the findings yield a numeric designation of 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 into 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 and resolving any reasonable doubt in the Veteran's favor, the Board finds an evaluation of 10 percent, but no higher, is warranted for bilateral hearing loss beginning April 5, 2016. The Veteran's bilateral hearing has been manifested by a hearing acuity of no more than Level V in the right ear and no more than Level IV in the left ear for the entire period on appeal. The Board expressly acknowledges its consideration of the lay evidence of record when adjudicating this claim, including the Veteran's use of hearing aids and the communication difficulties he experiences. See e.g., Veteran's Correspondence, received August 2018. The Veteran is competent to report difficulty understanding speech in noise; 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 contemplates speech reception thresholds and ability to hear spoken words on Maryland CNC testing. The functional impact described by the Veteran 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 contemplated in the rating assigned. See Rossy v. Shulkin, 29 Vet. App. 142, 145 (2017). The preponderance of the most probative evidence is against the claim of entitlement to an evaluation in excess of 10 percent for bilateral hearing loss. 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). Accordingly, entitlement to an evaluation of 10 percent, but not higher, beginning April 5, 2016, is granted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85, DC 6100. K. A. KENNERLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Gipson, 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.