Citation Nr: 21065573 Decision Date: 10/26/21 Archive Date: 10/26/21 DOCKET NO. 17-27 993 DATE: October 26, 2021 ORDERS 1. Entitlement to an increased rating, in excess of 10 percent, prior to August 24, 2021 for service-connected bilateral hearing loss is denied. 2. Entitlement to an increased rating, in excess of 50 percent, from August 24, 2021 for service-connected bilateral hearing loss is denied. FINDINGS OF FACT 1. Prior to August 24, 2021, the Veteran's bilateral hearing loss has been manifested by auditory acuity no worse than Level III in the right ear and Level VI in the left ear. 2. From August 24, 2021, the Veteran's bilateral hearing loss has been manifested by auditory acuity no worse than Level VII in the right ear and Level IX in the left ear. CONCLUSIONS OF LAW 1. The criteria for an increased rating, in excess of 10 percent, prior to August 24, 2021 for service-connected bilateral loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.85, 4.86, Diagnostic Code 6100. 2. The criteria for an increased rating, in excess of 50 percent, after August 24, 2021 for service-connected bilateral loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1956 to July 1964. The claim was most recently before the Board in April 2021 when it was remanded for additional development. The Board is satisfied that there has been substantial compliance with the remand directives and the Board may proceed with review. Stegall v. West, 11 Vet. App. 268 (1998). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). The Veteran's hearing loss disability was initially evaluated as 10 percent disabling, from February 2013. See January 2014 rating decision. He submitted a claim for increased rating in January 2016. After the Board remand, rating was increased to 50 recent, effective August 24, 2021, the date of a VA examination. See September 2021 rating decision. Entitlement to an increased rating, in excess of 10 percent for service-connected bilateral hearing loss prior to August 24, 2021, and in excess of 50 percent from that date. The Board finds that the criteria for a rating in excess of 10 percent prior to August 24, 2021, and 50 percent thereafter, are not met. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The Rating Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7. All benefit of the doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. Code 6100 sets out the criteria for evaluating hearing impairment using pure tone threshold averages and speech discrimination scores. Numeric designations are assigned based upon a mechanical use of tables found in 38 C.F.R. § 4.85; there is no room for subjective interpretation. See Acevedo-Escobar v. West, 12 Vet. App. 9, 10 (1998); Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Ratings for bilateral defective hearing range from 0 percent to 100 percent. The basic method of rating hearing loss involves audiological test results of impairment of hearing acuity as measured by the results of controlled speech discrimination tests (Maryland CNC), together with the average hearing threshold level as measured by pure tone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 Hertz. To rate the degree of disability from service-connected hearing loss, the rating schedule establishes eleven auditory acuity levels ranging from numeric level I for essentially normal acuity, through numeric level XI for profound deafness. 38 C.F.R. § 4.85. 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. 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. Each ear will be evaluated separately. 38 C.F.R. § 4.86(a). On VA audiology examination in March 2016, audiometric testing revealed pure tone thresholds, in decibels, as follows: 1000 2000 3000 4000 RIGHT 25 30 45 70 LEFT 40 50 70 75 Speech audiometry revealed speech recognition ability of 80 percent in both ears. The average decibel loss was 43 in the right ear; 59 in the left. The Veteran described the functional impact of the hearing loss as having, "difficulty understanding conversations." Applying the above results to Table VI, the findings yield a numeric designation of Level III in the right ear and Level IV in the left ear, which equates to a 10 percent disability rating under Diagnostic Code 6100. 38 C.F.R. § 4.85, Table VII. An exceptional pattern of hearing impairment as defined in 38 C.F.R. § 4.86 was not shown. Veteran also submitted two private audiograms in February 2017 and January 2021. It is unclear whether the speech discrimination testing on the February 2017 examination was conducted using the Maryland CNC test. As such that examination is inadequate and cannot be considered for rating purposes. 38 C.F.R. § 4.85. The January 2021 examination included the examiner's specific notation that the Maryland CNC test was used. Although only the graphic representation of the January 2021 audiogram was included in the record, with no numeric interpretation provided, the audiometric results were conveyed in straightforward graphs. The Board finds that it, as the finder of fact, can interpret the charts to determine the numeric values of the pure tone levels of adjudication purposes. See Kelly v. Brown, 7 Vet. App. 471 (1995). The results of a January 2021 audiological examination by Dr. I.S. at the LBJ Tropical Medical Center were as follows: 1000 2000 3000 4000 RIGHT 30 40 50 65 LEFT 30 40 70 75 Speech audiometry (which the examiner specifically said was using the Maryland CNC) revealed speech recognition ability of 80 percent in the right ear and of 66 in the left ear. The average decibel loss was 46 in the right ear; 54 in the left. Applying the above results to Table VI, the findings yield a numeric designation of Level III in the right ear and Level VI in the left ear, which equates to a 10 percent disability rating under Diagnostic Code 6100. 38 C.F.R. § 4.85, Table VII. An exceptional pattern of hearing impairment as defined in 38 C.F.R. § 4.86 was again not shown. Pursuant to the April 2021 Board remand, the Veteran was given a VA examination in August 2021. The Veteran's Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: 1000 2000 3000 4000 RIGHT 35 45 60 75 LEFT 45 65 85 95 Speech audiometry revealed speech recognition ability of 56 percent in the right ear and of 40 in the left ear. The average decibel loss was 54 in the right ear; 73 in the left. The Veteran described the functional impact of his hearing loss as having trouble hearing others speak and constantly having to ask others to repeat themselves. Applying the above results to Table VI, the findings yield a numeric designation of Level VII in the right ear and Level IX in the left ear, which equates to a 50 percent disability rating under Diagnostic Code 6100. 38 C.F.R. § 4.85, Table VII. An exceptional pattern of hearing impairment as defined in 38 C.F.R. § 4.86 was again not shown. The Board is sympathetic to the Veteran's claim that a higher rating is warranted for his service-connected bilateral hearing loss. However, the audiometric examination results, as compared to the rating criteria, do not warrant an increased rating in excess of 10 percent prior to August 24, 2021 or in excess of 50 percent after August 24, 2021. The Veteran testified at his March 2021 Board hearing that his bilateral hearing loss has worsened. The Veteran also noted that, even when people are in close proximity, he doesn't hear what they're trying to say to him. The Veteran specifically noted that if the radio or television is turned on, it's difficult to hear other people. The Board expressly acknowledges its consideration of the lay evidence of record when adjudicating this claim, including the Veteran's reports that he has "difficulty understanding conversations" and difficulty hearing in ambient noise. 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 and also contemplate exceptional hearing patterns, which were not demonstrated in this case. The functional impacts that the Veteran describes are 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). The Veteran's audiometric examination results, as compared to the rating criteria, do not warrant an increased rating, in excess of 10 percent, for the Veteran's service-connected bilateral hearing loss for the period prior to August 24, 2021. As such, the Veteran's claim for an increased rating for the period prior to August 24, 2021 is denied. Accordingly, the Board finds that the competent, probative evidence weighs against the Veteran's claim for an increased rating at any time during the appeal period. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Thus, the benefit of the doubt doctrine is not for application and the claim is denied. M.E. Larkin Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. E. Bresler 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.