Citation Nr: 21069486 Decision Date: 11/18/21 Archive Date: 11/18/21 DOCKET NO. 19-22 056 DATE: November 18, 2021 ORDER Entitlement to a compensable rating prior to September 27, 2021 and in excess of 40 percent thereafter for service-connected bilateral hearing loss is denied. FINDING OF FACT Prior to September 27, 2021, the Veteran's hearing loss was manifested by hearing acuity no worse than Level III in both the right and left ear. Since then, the Veteran's hearing loss has manifest as hearing acuity no worse than Level VII in the right ear and Level VIII in the left ear. CONCLUSION OF LAW The criteria for entitlement to a compensable rating prior to September 27, 2021 and in excess of 40 percent thereafter for service-connected bilateral hearing loss 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. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from May 1962 until May 1965. In August 2021, the Veteran testified at a hearing before the undersigned; a transcript of that hearing is of record. This appeal was previously before the Board in August 2021 when it was remanded for further development. There has been substantial compliance with the remand directives and the Board will proceed to adjudication. Stegall v. West, 11 Vet. App. 268, 271 (1998). This appeal has been advanced on the Board's docket pursuant to 38C.F.R. §20.902 (c). Entitlement to a compensable rating prior to September 27, 2021 and in excess of 40 percent thereafter for service-connected bilateral hearing loss The Veteran asserts that he is entitled to an increased rating for his bilateral hearing loss. In a September 2021 rating decision, the Agency of Original Jurisdiction (AOJ) increased the rating to 40 percent, effective September 27, 2021, the date of a VA examination. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Staged ratings are appropriate in any increased-rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). Diagnostic 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. Under 38 C.F.R. § 4.86 (a), for exceptional patterns of hearing impairment, when the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more, 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. The Board preponderance of the evidence does not show that a compensable rating is warranted prior to September 27, 2021 nor is a rating in excess of 40 percent warranted thereafter. The Veteran filed a claim for increased rating in April 2017. He submitted an audiological evaluation dated May 5, 2017. That examination report contained graphical Puretone threshold findings. However, the report includes an annotation below the graph that stated, "... results 8.26.14." Additionally, it does not appear the Veteran's speech discrimination was tested using the Maryland CNC wordlist. Due to the ambiguity contained in the May 5, 2017 report as to when the audiological data was actually obtained and because the Veteran's speech discrimination score using the Maryland CNC wordlist was not included, it is inadequate for adjudication and is nonprobative. See 38 C.F.R. § 4.85 (a). On VA examination in July 2017, the examiner reported the Veteran's speech discrimination to be 80 percent, bilaterally, using the Maryland CNC wordlist. Puretone thresholds were measured and were reported as 25 dB at 1000 Hz, 25 dB at 2000 Hz, 35 dB at 3000 Hz, and 40 dB at 4000 Hz in the right ear. The average Puretone threshold for the right ear was 31 dB. Puretone thresholds for the left ear were measured and reported as 30 dB at 1000 Hz, 35 dB at 2000 Hz, 40 dB at 3000 Hz, and 45 dB at 4000 Hz. The average Puretone threshold for the left ear was 38 dB. The examiner said the Veteran's hearing loss impacts ordinary conditions of daily life, including the ability to work. The Veteran described the impact as "I play my TV loud. I have to ask people to repeat what they say at times." At a Board hearing in August 2021, the Veteran testified that his hearing loss had worsened since the July 2017 VA examination and that he had been offered hearing aids by the VA but had declined them due to concerns about cost. Pursuant to the Board remand, the Veteran was provided another VA examination in September 2021. The examiner reported the Veteran's speech discrimination to be 62 percent in the right ear and 70 percent in the left ear using the Maryland CNC wordlist. Puretone thresholds were measured and were reported as 60 dB at 1000 Hz, 60 dB at 2000 Hz, 75 dB at 3000 Hz, and 85 dB at 4000 Hz in the right ear. The average Puretone threshold for the right ear was 70 dB. Puretone thresholds for the left ear were measured and reported as 70 dB at 1000 Hz, 75 dB at 2000 Hz, 90 dB at 3000 Hz, and 100 dB at 4000 Hz. The average Puretone threshold for the left ear was 84 dB. The examiner said the Veteran's hearing loss impacts ordinary conditions of daily life, including the ability to work. The impact was reported as "Veteran stated that he has to increase the volume on the TV. He reported that he often needs people to repeat themselves when they are speaking from a distance." Applying the results of the July 2017 VA examination to Table VI yields a numeric designation of Level III in the right ear and Level III in the left ear, which equates to a noncompensable (0 percent) disability rating under Diagnostic Code 6100. The September 2021 VA examination showed an exceptional pattern of hearing loss in each ear, per 38 C.F.R. § 4.86 (a). Applying the results to Table VI yields a numeric designation of Level VII bilaterally, which equates to a 40 percent rating under Diagnostic Code 6100. Applying the results to Table Via yields a numeric designation of VI for the right ear and VIII for the left. Considering each ear separately, the higher designation for the right ear is VII; for the left, VIII. Those designations equate to a 40 percent rating. Based upon the evidence above, the Board finds that the criteria for a compensable rating prior to September 27, 2021 and a rating in excess of 40 percent from that date are not met or more closely approximated. The Board expressly acknowledges its consideration of the lay evidence of record when adjudicating this claim, including the Veteran's contention that the rating currently assigned did not reflect the disabling effect of his condition. 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, 3 Vet. App. at 345. In November 2021 written argument, the Veteran's representative said the symptomatology associated with the Veteran's hearing loss has presented a greater degree of impairment than the currently assigned ratings would indicate. The Board notes that the VA examinations conducted during the appeal period have provided adequate descriptions of the functional effects of the Veteran's hearing loss. Martinak v. Nicholson, 21 Vet. App. 447 (2007). The Veteran's hearing loss disability has manifested in difficulty hearing and has been evaluated under the applicable diagnostic code that has specifically contemplated the level of occupational impairment caused by hearing loss disabilities. The schedular rating criteria specifically provide for ratings based on all levels of hearing loss, including exceptional hearing patterns which was not demonstrated in this case, and as measured by both audiometric testing and speech recognition testing. Doucette v. Shulkin, 28 Vet. App. 366 (2017); Rossy v. Shulkin, 29 Vet. App. 142 (2017). The preponderance of evidence is against the claim and the benefit of the doubt doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The claim for a compensable rating prior to September 27, 2021 and in excess of 40 percent thereafter for service-connected bilateral hearing loss is denied. M.E. Larkin Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M.D. Collins, 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.