Citation Nr: 21072269 Decision Date: 12/02/21 Archive Date: 12/02/21 DOCKET NO. 17-45 077 DATE: December 2, 2021 ORDER Entitlement to an initial rating in excess of 10 percent for bilateral sensorineural hearing loss disability is denied. Restoration of an evaluation of 10 percent from May 2, 2017 for bilateral sensorineural hearing loss disability is denied. FINDINGS OF FACT 1. Bilateral sensorineural hearing loss disability has been manifested by hearing acuity of no worse than Level III in the right ear and no worse than Level IV in the left ear. 2. The Veteran's bilateral sensorineural hearing loss disability underwent improvement based on objective testing. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 10 percent for bilateral sensorineural hearing loss disability 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 May 2017 rating decision, reducing the rating for bilateral hearing loss from 10 percent to 0 percent from May 2, 2017, was proper. 38 U.S.C. § 1155; 38 C.F.R. § 3.344. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1968 to March 1971. The Board notes that the Veteran indicated on his August 2017 Form 9 that he wished to have a videoconference hearing. A hearing was scheduled in August 2021, and the Veteran failed to appear. Increased Rating 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 assignment of disability ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). 1. Entitlement to an initial rating in excess of 10 percent for bilateral sensorineural hearing loss disability An August 2016 private examination reveals that the Veteran reported difficulty hearing and tinnitus. 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: August 2016 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 20 25 75 70 48 80 LEFT 10 70 80 85 61 80 Applying the results to Table VI, the findings yield a numeric designation of Level III in the right ear and Level IV in the left ear. Entering the resulting bilateral numeric designation of Level III for the right ear and Level IV 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 shown in the left ear. Applying the results to Table VIA yields Level II in the right ear and level IV in the left ear. Entering the resulting bilateral numeric designation of Level II for the right ear and Level IV for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a noncompensable disability rating under Diagnostic Code 6100. Here, Table VI yields the highest rating for both ears. Based on the evidence above, a rating in excess of 10 percent for the Veteran's bilateral sensorineural hearing loss is not warranted. The Board expressly acknowledges its consideration of the lay evidence of record when adjudicating this claim, including difficulty hearing. 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 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 rating in excess of 10 percent for hearing loss. 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). 2. Restoration of an evaluation of 10 percent from May 2, 2017 for bilateral sensorineural hearing loss disability In any case involving a rating reduction, the fact-finder must ascertain, based upon a review of the entire record, whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based upon a thorough examination. To warrant a reduction, it must be determined not only that an improvement in the disability level has actually occurred, but also that such improvement actually reflects an improvement in the ability to function under the ordinary conditions of life and work. Brown v. Brown, 5 Vet. App. 413, 420-21 (1993) (citing 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.13). In addressing whether improvement is shown, the comparison point generally is the last examination on which the rating at issue was assigned or continued. Hohol v. Derwinski, 2 Vet. App. 169 (1992). However, if the rating was continued in order to see if improvement was in fact shown, the comparison point could include prior examinations as well. Collier v. Derwinski, 2 Vet. App. 247 (1992). The reduction of a rating generally must have been supported by the evidence on file at the time of the reduction, but pertinent post-reduction evidence favorable to restoring the rating must also be considered. Dofflemeyer v. Derwinski, 2 Vet. App. 277 (1992). The greater protections for ratings in effect for longer than five years are inapplicable in this case. See 38 C.F.R. § 3.344 (c). Here, the Veteran's 10 percent rating was in effect for nearly nine months. The Veteran received a VA audiological examination on May 2, 2017. Pure tone thresholds, in decibels, were as follows: May 2017 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 20 25 75 65 46 92 LEFT 15 60 80 80 59 88 Applying the results to Table VI, the findings yield a numeric designation of Level I in the right ear and Level III in the left ear. Entering the resulting bilateral numeric designation of Level I for the right ear and Level III 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. At the time of the May 2017 rating decision, there was evidence of improvement shown in the May 2017 VA examination. There was improvement based upon objective testing and the 0 percent evaluation resulted from a mechanical application of the rating schedule. A review of the VA treatment records reflects that they are not inconsistent with the findings noted in the VA examination. Actual improvement was shown based on the evidence at the time of the May 2017 rating decision. As such restoration is not warranted under 38 C.F.R. § 3.344 and a 10 percent rating is therefore not restored. 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). H. N. SCHWARTZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Creegan, Amanda 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.