Citation Nr: 21067847 Decision Date: 11/05/21 Archive Date: 11/05/21 DOCKET NO. 14-34 585 DATE: November 5, 2021 ORDER Entitlement to an initial rating in excess of 10 percent for bilateral hearing loss from June 22, 2009, to January 18, 2018, is denied. Entitlement to a rating in excess of 40 percent for bilateral hearing loss from January 18, 2018, to July 13, 2020, is denied. FINDINGS OF FACT 1. The Veteran's bilateral hearing manifested by hearing acuity of no worse than Level II in the right ear and no worse than Level VII in the left ear from June 22, 2009, to January 18, 2018. 2. The Veteran's bilateral hearing manifested by hearing acuity of no worse than Level V in the right ear and no worse than Level XI in the left ear from January 18, 2018, to July 13, 2020. CONCLUSIONS OF LAW 1. From June 22, 2009, to January 18, 2018, the criteria for a rating in excess of 10 percent for bilateral hearing loss has 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. From January 18, 2018, to July 13, 2020, the criteria for a rating in excess of 40 percent for bilateral hearing loss has 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 on active duty from September 1971 to August 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2011 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO), which, in pertinent part, granted service connection for bilateral hearing loss and assigned a noncompensable rating, effective June 22, 2009. In a July 2014 rating decision, the RO increased the rating for the Veteran's bilateral hearing loss to 10 percent, effective June 22, 2009. In an August 2020 rating decision, the RO assigned a disability rating of 100 percent for the Veteran's bilateral hearing loss, effective July 13, 2020. Again, in an August 2021 rating decision, the RO assigned a disability rating of 40 percent, effective January 18, 2018, to July 13, 2020. This matter was previously before the Board in November 2017, December 2019, and October 2020. Per the October 2020 remand directives, several treatment records and audiological examinations were obtained and included in the claims file. Attempts to obtain the missing records have been exhausted. Accordingly, the Board finds that there has been substantial compliance with prior remand instructions and no further action is necessary. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). It is valuable to note that the Veteran has already been found to be 100 percent disabled by VA. The Veteran has been in receipt of a schedular 100 percent combined disability rating since June 22, 2009. The Veteran has also been in receipt of SMC under 38 U.S.C. § 1114 subsections (k) for loss of creative organ and (l) for regular aid and attendance from June 22, 2009, and subsections (k) for loss of use of one hand and (p) at the rate equal to subsection (m) on account of entitlement to the rate equal to subsection (l) with additional disability bilateral hearing loss independently ratable at 100 percent from July 13, 2020. In this case, the Board is only dealing with the limited outstanding issues that it must address under the law. Increased Rating Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27. When rating the Veteran's service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Separate higher or lower compensable evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as "staged" ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). Regulations require that where there is a question as to which of two evaluations is to be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The assignment of a particular diagnostic code to evaluate a disability is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the diagnosis, and demonstrated symptomatology. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). In evaluating the evidence in any given appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307, 310-11 (1999). In this regard, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). 1. Entitlement to an initial rating in excess of 10 percent for bilateral hearing loss from June 22, 2009, to January 18, 2018. 2. Entitlement to a rating in excess of 40 percent from January 18, 2018, to July 13, 2020. The Veteran contends that he is entitled to a rating in excess of 40 percent prior to July 13, 2020. See October 2021 Appellate Brief. 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). Accordingly, the Board will address the February 2011, April 2015, March 2016, and January 2018 VA hearing loss examinations below. The February 2011 VA examination reveals that the Veteran's Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: 2/10/2011 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 5 30 65 65 41 88 LEFT 45 70 85 105 76 66 Applying the results to Table VI, the findings yield a numeric designation of Level II in the right ear and Level VII in the left ear. Entering the resulting bilateral numeric designation of Level II for the right ear and Level VII 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. The April 2015 VA examination reveals that the Veteran's Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: 4/10/2015 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 30 40 75 85 58 92 LEFT 50 80 90 105 81 60 Applying the results to Table VI, the findings yield a numeric designation of Level II in the right ear and Level VII in the left ear. Entering the resulting bilateral numeric designation of Level II for the right ear and Level VII 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. The March 2016 VA examination reveals that the Veteran's Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: 3/7/2016 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 15 35 65 80 49 88 LEFT 45 75 95 105 80 60 Applying the results to Table VI, the findings yield a numeric designation of Level II in the right ear and Level VII in the left ear. Entering the resulting bilateral numeric designation of Level II for the right ear and Level VI 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. The January 2018 VA examination reveals that the Veteran's Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: 1/18/2018 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 30 45 70 85 58 68 LEFT 65 90 100 105 90 32 Applying the results to Table VI, the findings yield a numeric designation of Level V in the right ear and Level XI in the left ear. Entering the resulting bilateral numeric designation of Level V for the right ear and Level XI for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a 40 percent disability rating under Diagnostic Code 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was shown in the left ear. Applying the results to Table VIA shows a numeric designation of Level VIII in the left ear. Here, Table VI yields the highest rating for the left ear and therefore equates to a 40 percent disability rating under Diagnostic Code 6100 for the Veteran's bilateral hearing. Based on the evidence above, entitlement to an initial rating in excess of 10 percent for bilateral hearing loss from June 22, 2009, to January 18, 2018, is not warranted. Additionally, entitlement to a rating in excess of 40 percent from January 18, 2018, to July 13, 2020, is not warranted. The Board expressly acknowledges the Veteran's contention that his hearing loss essentially jumped from 40 percent disabling to 100 percent disabling over a short period of time. See October 2021 Appellate Brief. However, when comparing the March 2016 VA examination with the January 2018 VA examination, the Veteran's hearing loss jumped by 30 percent over a short period of time. 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 and loss of hearing that the Veteran describes is contemplated by the rating criteria. Doucette v. Shulkin, 28 Vet. App. 366 (2017). Accordingly, the preponderance of the most probative evidence is against the claim of entitlement to an initial rating in excess of 10 percent for bilateral hearing loss from June 22, 2009, to January 18, 2018, and entitlement to a rating in excess of 40 percent from January 18, 2018, to July 13, 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). John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Laura Cochran, 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.