Citation Nr: 21070641 Decision Date: 11/24/21 Archive Date: 11/24/21 DOCKET NO. 17-57 283 DATE: November 24, 2021 ORDER Entitlement to a compensable rating for bilateral hearing loss disability is denied. FINDING OF FACT Throughout the appeal period, based on the mechanical application of the rating schedule to the numeric designations resulting from audiometric testing, the degree of hearing loss disability is shown to have resulted in no more than a noncompensable rating under 38 C.F.R. § 4.85, Table VII. CONCLUSION OF LAW The criteria for the assignment of a compensable evaluation for the service-connected bilateral hearing loss disability have not been met. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 3.102, 4.7, 4.85, 4.86, Tables VI -VII (2021). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1965 to November 1967. This matter was recently before the Board of Veterans' Appeals (Board) in May 2021 and remanded for further development. Having been completed, the matter is ready for appellate disposition. Entitlement to a compensable rating for bilateral hearing loss disability The Veteran contends, through statements and testimony, that he is entitled to a higher rating because his bilateral hearing loss requires the use of hearing aids and interferes with his activities of daily living. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The Rating Schedule is primarily a guide in the evaluation of disabilities 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. The Court has held that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). Separate 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 Fenderson v. West, 12 Vet. App. 119, 126 (1999). 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). The Board has thoroughly reviewed all the evidence of record and after careful consideration, finds that the Veteran's bilateral hearing loss disability more closely approximates the criteria for the current noncompensable rating. See 38 C.F.R. §§ 4.3, 4.7; see Hart, supra. In this regard, the August 2016 VA examination reveals that the Veteran reported problems with multiple listening situations, difficulty hearing when there is a lot of background noise, when he does not see the person's face to read their lips, and when the person or sound source is at a distance. 38 C.F.R. § 4.10; Martinak v. Nicholson, 21 Vet. App. 447 (2007). Regardless of whether this satisfies the requirement in Martinak, the Veteran must demonstrate prejudice due to any examination deficiency, which he has not done in the instant case. Id. The Veteran's Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 40 45 50 60 49 96 LEFT 45 45 55 55 50 68 Applying the foregoing medical evidence to the rating criteria for hearing impairment, the Veteran's right ear is assigned a Level I designation under Table VI. 38 C.F.R. § 4.85. The Veteran's left ear is assigned Level V designation under Table VI. See 38 C.F.R. § 4.85. Together, a Level I and Level V designation results in a zero percent rating under 38 C.F.R. § 4.85, Table VII, and there is no basis for a higher rating based on these test results. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. The December 2017 VA examination reveals that the Veteran denied hearing loss impacted the ordinary conditions of his daily life. 38 C.F.R. § 4.10; Martinak, supra. The Veteran's Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 30 35 30 35 65 88 LEFT 35 35 35 35 35 90 Applying the foregoing medical evidence to the rating criteria for hearing impairment, the Veteran's right ear is assigned a Level III designation under Table VI. 38 C.F.R. § 4.85 (f). The Veteran's left ear is assigned a level II under Table VI. See 38 C.F.R. § 4.85. Together, a Level II and Level III designation results in a zero percent rating under 38 C.F.R. § 4.85, Table VII, and there is no basis for a higher rating based on these test results. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. The March 2020 VA examination test results were not considered valid for rating purposes due to the discrepancies between air and bone conduction thresholds. Immittance testing did not confirm a conductive component to the hearing loss but normal middle ear compliance and middle ear pressure with normal ear canal volumes for both ears which was indicative of normal middle ear function. Thus, the reliability was considered poor. The August 2021 VA examination reveals that the Veteran indicated hearing loss impacted the ordinary conditions of his daily life. Specifically, he reported that if he had anything going like the television, he could hear noise but not understand. 38 C.F.R. § 4.10; Martinak, supra. The Veteran's Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 40 40 40 40 40 90 LEFT 35 35 40 40 38 88 Applying the foregoing medical evidence to the rating criteria for hearing impairment, the Veteran's right ear is assigned a Level I designation under Table VI. 38 C.F.R. § 4.85 (f). The Veteran's left ear is assigned a level II under Table VI. See 38 C.F.R. § 4.85. Together, a Level I and Level III designation results in a zero percent rating under 38 C.F.R. § 4.85, Table VII, and there is no basis for a higher rating based on these test results. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. The Board expressly acknowledges its consideration of the lay evidence of record when adjudicating this claim, including the Veteran's contentions regarding the symptoms of his hearing loss and that he wears hearing aids. The Veteran is competent to report difficulty with his hearing and that he uses hearing aids 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 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). While there may have been day-to-day fluctuations in the manifestations of the Veteran's service-connected bilateral hearing loss disability, the evidence shows no distinct periods of time during the appeal period, when the Veteran's service-connected right ear hearing loss disability varied to such an extent that a compensable evaluation would be warranted. Hart, supra. (Continued on next page) Finally, in reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claim for a compensable rating for his service-connected bilateral hearing loss disability, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). E. I. VELEZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. L. Wallin, 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.