Citation Nr: 21066454 Decision Date: 11/01/21 Archive Date: 11/01/21 DOCKET NO. 15-09 024A DATE: November 1, 2021 ORDER Entitlement to an initial compensable rating prior to February 28, 2018, and in excess of 10 percent thereafter, for bilateral hearing loss is denied. Entitlement to a 10 percent disability rating, but no higher, effective from February 28, 2018, for bilateral hearing loss is granted. FINDINGS OF FACT 1. Prior to February 28, 2018, the Veteran's bilateral hearing has been manifested by hearing acuity of no worse than Level I in the right ear and no worse than Level I in the left ear. 2. Resolving reasonable doubt in the Veteran's favor, since February 28, 2018, the Veteran's bilateral hearing has been manifested by hearing acuity of no worse than Level V in the right ear and no worse than Level II in the left ear. CONCLUSIONS OF LAW 1. The criteria for a compensable rating for bilateral hearing loss prior to February 28, 2018 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. 2. The criteria for a rating of 10 percent, but no higher, 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, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from September 1967 to October 1988. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2012 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In June 2018, the Board remanded the claim for additional development, which has been completed. Increased Rating 1. Entitlement to an initial compensable rating prior to February 28, 2018, and in excess of 10 percent thereafter, for bilateral hearing loss 2. Entitlement to a 10 percent disability rating, but no higher, from February 28, 2018, for bilateral hearing loss The Veteran seeks an increased rating for bilateral hearing loss. He contends that his hearing loss disability warrants a higher rating. 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 March 2012 VA examination reveals that the Veteran reported in-service noise exposure and subsequent hearing loss. 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: March 2012 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 20 30 50 65 41 94% LEFT 15 30 50 55 38 94% 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 Level I for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a noncompensable disability rating under Diagnostic Code 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown in either ear. VA treatment records show the Veteran appeared for an audiological assessment in February 2018. The Veteran reported right-sided decrease in hearing in 2017, which occurred over a few weeks. Audiometric results indicated mild sloping to severe sensorineural hearing loss, with a noted 17- to 18-decibel increase in pure tone threshold averages since the VA examination conducted in March 2012. A March 2020 VA examination reveals that the Veteran reported high pitch hearing loss. 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: March 2020 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 55 65 70 70 65 80% LEFT 40 70 65 65 60 96% Applying the results to Table VI, the findings yield a numeric designation of Level IV in the right ear and Level II in the left ear. Entering the resulting bilateral numeric designation of Level IV 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 Diagnostic Code 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was shown in the right ear. Applying the results to Table VIA yields Level V in the right ear. Entering the resulting bilateral numeric designation of Level V for the right ear and Level II for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a 10 percent disability rating under Diagnostic Code 6100. Here, Table VIA yields the highest rating for the right ear. Based on the evidence above, a compensable rating prior to February 28, 2018, for the Veteran's bilateral hearing loss is not warranted. The March 2012 VA examination report reflects bilateral hearing loss that is most consistent with a noncompensable evaluation. Based on the evidence, a 10 percent rating, but no higher, from February 28, 2018, for the Veteran's bilateral hearing loss is warranted. VA treatment records show the Veteran presented for worsening hearing loss in February 2018. While specific decibel thresholds at each frequency were not noted, the assessment noted a significant threshold shift compared to the March 2012 VA examination report of 17 to 18 decibels. A threshold shift of 18 decibels bilaterally suggests an average decibel threshold of approximately 55 to 60. The Board finds that the Veteran's hearing at the February 2018 audiological assessment is more representative of the hearing loss measured at the March 2020 VA examination, for which a 10 percent rating was assigned. Thus, the Board finds that a 10 percent disability rating is warranted from February 28, 2018. The Board expressly acknowledges its consideration of the lay evidence of record when adjudicating this claim. 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). (Continued on the next page) 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 February 28, 2018, or in excess of 10 percent thereafter, for hearing loss. An earlier 10 percent rating is warranted from February 28, 2018, based upon the clinical worsening demonstrated at the February 2018 audiological assessment. 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). J. NICHOLS 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.