Citation Nr: 21072890 Decision Date: 12/06/21 Archive Date: 12/06/21 DOCKET NO. 14-35 437A DATE: December 6, 2021 ORDER An initial 20 percent evaluation for lumbosacral degenerative disc disease, degenerative arthritis and spondylolisthesis of L5 on S1, prior to June 29, 2021, is granted, subject to the rules and regulations governing the award of monetary benefits. An initial evaluation in excess of 20 percent for lumbosacral degenerative disc disease, degenerative arthritis and spondylolisthesis of L5 on S1, from June 29, 2021, is denied. An initial compensable evaluation for bilateral hearing loss is denied. FINDINGS OF FACT 1. Prior to June 29, 2021, the Veteran's lumbosacral degenerative disc disease, degenerative arthritis and spondylolisthesis of L5 on S1 resulted in disability analogous to forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; it did not result in forward flexion of the thoracolumbar spine to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine, or disability analogous to such. 2. From June 29, 2021, the Veteran's lumbosacral degenerative disc disease, degenerative arthritis and spondylolisthesis of L5 on S1 does not result in forward flexion of the thoracolumbar spine to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine, or disability analogous to such. 3. 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. CONCLUSIONS OF LAW 1. The criteria for an initial 20 percent evaluation, but not higher, for lumbosacral degenerative disc disease, degenerative arthritis and spondylolisthesis of L5 on S1, prior to June 29, 2021, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5242-5237. 2. The criteria for an initial evaluation in excess of 20 percent for lumbosacral degenerative disc disease, degenerative arthritis and spondylolisthesis of L5 on S1, from June 29, 2021, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5242-5237. 3. The criteria for an initial compensable evaluation for 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 FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1971 to August 1978. The Board thanks him for his service to our country. The Veteran testified before the undersigned Veterans Law Judge in October 2017. A transcript of the hearing is in the record before the Board. The Board previously remanded the claims on appeal in April 2018 for additional development. There has been substantial compliance with the remand in connection with claims and the Board will proceed with adjudication. Stegall v. West, 11 Vet. App. 268 (1998). Increased Ratings Regarding the appeal period, the Veteran submitted a claim for service connection for a back disorder and bilateral hearing loss on February 19, 2010. The October 2011 rating decision on appeal granted service connection for lumbosacral degenerative disc disease and spondylolisthesis of L5 on S1, evaluated as 10 percent disabling, effective February 19, 2010. The rating decision also granted service connection for bilateral hearing loss, evaluated as noncompensable, effective February 19, 2010. In general, ratings for service-connected disabilities are determined by comparing the Veteran's symptoms with criteria listed in VA's Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. Separate diagnostic codes identify the various disabilities. 38 C.F.R. Part 4. When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When a question arises as to which of two ratings applies under a particular code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. An exception to this rule applies when the rating criteria are successive. In such a case, all the requirements of the lower levels must be met before a higher level is awarded, and 38 C.F.R. §§ 4.7 and 4.21 do not apply. Johnson v. Wilkie, 30 Vet. App. 245 (2018). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. With a claim for an increased initial rating, separate staged ratings may be assigned based on facts found. Fenderson v. West, 12 Vet. App. 119 (1999). 1. Entitlement to an initial evaluation for lumbosacral degenerative disc disease, degenerative arthritis and spondylolisthesis of L5 on S1, in excess of 10 percent prior to June 29, 2021, and in excess of 20 percent from that date. Generally, in evaluating musculoskeletal disabilities, consideration must be given to additional functional limitation due to factors such as pain, weakness, fatigability, and incoordination. See 38 C.F.R. §§ 4.40 and 4.45; DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). The United States Court of Appeals for Veterans Claims (Court) has held that diagnostic codes predicated on limitation of motion do not prohibit consideration of a higher rating based on functional loss due to pain on use or due to flare-ups under 38 C.F.R. §§ 4.40, 4.45, and 4.59. See Johnson v. Brown, 9 Vet. App. 7 (1996); DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. Nonetheless, even when the background factors listed in § 4.40 or § 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a criteria."). Pain may be taken into consideration when rating functional loss. However, pain on motion is not, itself, functional loss, but may result in functional loss only if it limits the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination[, or] endurance." 38 C.F.R. § 4.40. Mitchell v. Shinseki, 25 Vet. App. 32, 38 (2011). A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the claimant. Johnston v. Brown, 10 Vet. App. 80, 85 (1997) (citing 38 C.F.R. § 4.40). 38 C.F.R. § 4.40 (functional loss due to pain is to be rated at the same level as the functional loss when flexion is impeded); see Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Thus, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 creates a requirement that certain range of motion testing be conducted whenever possible in cases of joint disabilities. The final sentence provides that "[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with the range of the opposite undamaged joint." The Court found that, to be adequate, a VA examination of the joints must, wherever possible, include the results of the range of motion testing described in the final sentence of § 4.59. Correia, 28 Vet. App. at 169-170. In Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017), the Court addressed the adequacy of medical opinions that decline to present clear estimations by citing that such estimations would be mere speculation. The Court explained that case law and VA guidelines do not require direct observation of functional impairment after repetitive use or during a flare-up as a prerequisite to offering a DeLuca opinion. DeLuca v. Brown, 8 Vet. App. 202 (1995). Indeed, it is not expected that such observation will usually occur; therefore, VA examiners should offer opinions based on estimates derived from information procured from all relevant sources, including the lay statements of Veterans. VA examiners have a duty to elicit information from the Veteran when attempting to describe functional loss associated with pain during unobserved exacerbations. If a non-speculative opinion still cannot be offered, the VA examiner must explain the basis for this conclusion. It must be apparent that the inability to provide an opinion without resorting to speculation reflects the limitation of knowledge in the medical community at large and not a limitation (whether based on lack of expertise, insufficient information, or unprocured testing) of the individual examiner. Finally, it is the intention of the VA rating schedule to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased. Flexion elicits such manifestations. The joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. 38 C.F.R. § 4.59. Consideration of 38 C.F.R. § 4.59 is not limited to cases involving arthritis, thereby providing for the possibility of a rating based on painful motion of a joint, regardless of whether the painful motion stemmed from joint or periarticular pathology. Burton v. Shinseki, 25 Vet. App. 1 (2011). VA recently amended the criteria for some musculoskeletal disabilities effective from February 7, 2021. These new regulations apply to all applications for benefits received by VA or that are pending before the agency of original jurisdiction on or after February 7, 2021. Claims pending prior to the effective date will be considered under both old and new rating criteria, and whatever criteria is more favorable to the veteran will be applied. The Board may not apply a current regulation prior to its effective date unless the regulation explicitly provides otherwise. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). However, the Board is not precluded from applying prior versions of the applicable regulation to the period on or after the effective dates of the new regulation if the prior version was in effect during the pendency of the appeal. In pertinent part, 38 C.F.R. § 4.71a, Diagnostic Code 5242 for degenerative arthritis of the spine was revised to apply to degenerative arthritis, degenerative disc disease other than intervertebral disc syndrome (IVDS). Significantly, the actual rating criteria set forth in the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula) were not changed. The Veteran's lumbar spine disability is currently rated under Diagnostic Code Diagnostic Code 5242-5237. Diagnostic Code 5242 provides that degenerative arthritis, or degenerative arthritis and degenerative disc disease other than IVDS after February 7, 2021, is to be rated under the General Rating Formula. Diagnostic Code 5237 provides that lumbosacral strain is also to be rated under the General Rating Formula. Under the General Rating Formula, a 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine to 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code. Id. at Note 1. Ankylosis is defined as "immobility and consolidation of a joint due to disease, injury, or surgical procedure." Dorland's Illustrated Medical Dictionary, 94 (32nd ed. 2012). Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. 38 C.F.R. § 4.71a, General Rating Formula at Note 5. The Court recently held in Chavis v. McDonough, No. 18-2928 (U.S. Vet. App., April 16, 2021) that application of §§ 4.40 and 4.45 permits consideration under the General Rating Formula for Diseases and Injuries of the Spine of an evaluation based on ankylosis if a claimant's functional loss is consistent with that contemplated by ankylosis. In other words, if the demonstrated functional loss is the functional equivalent of ankylosis. The Veteran contends that his back disability warrants higher evaluations. He has informed VA that he seeks a 20 percent evaluation for his service-connected lumbar spine disability. See October 2014 Statement in Support of Claim. However, the claim for an increased initial evaluation for the period from June 29, 2021, remains before the Board because the 20 percent initial staged rating is less that the maximum available benefit awardable for that period. See AB v. Brown, 6 Vet. App. 35 (1993). Thus, the issues on appeal include entitlement to an initial evaluation in excess of 20 percent, from June 29, 2021. During the October 2017 hearing, the Veteran testified that over the years he had received treatment at Kaiser, UC Davis and now at Dignity Health. He had gone to some different emergency rooms and could not remember them all. He testified that he used the medications of Norco or Vicodin for various ailments, but mainly his back. Lately, he could not do much work in the yard or anything else unless he took a Vicodin before and he also had to stop to take it. Sometimes, because of the activities he did, he might not be able to continue them for a few days and had to take time off. More recently, he had been getting and taking the medication more and more often. Because of his concerns over addiction, sometimes he would stop taking it for a few days or weeks until he needed it again. At other times, he had been taking it quite constantly. He explained that he took pain medication before his VA back examination in 2014 because he was in pain at the time. The Veteran stated that in the past friends and relatives would call him to cut down trees or tree braches on their property because he needed firewood, or would ask him for help moving things or other physical activities. However, because of his back and physical condition, he told people not to call him unless it was an emergency. The Veteran also reported that his pain varied. He wore an elastic strap and took mediation before clearing brush or doing other physical activity. The pain would then last for two or three days. Lately, he could only last about two hours before he had to stop due to pain. Previously, he could cut wheat for 12 or 16 hours a day. His back was different from day to day. He used to lift a couple of hundred pounds without problem. Now, he could bend over to pick up a piece of paper and his back would go out. On several occasions, he had gone to the emergency room when his back went out. He estimated that since 2010, he had gone to the emergency room half a dozen times for his back and stomach. Many times, if he threw out his back, he would just stop what he was doing, take medication and use ice. He used to go the emergency room earlier when he did not have pain medicine. The Veteran stated that what he described as his back giving out was when he was doing physical activity and had to stop. It had happened a lot more in the past few years. Often, because he had to do work around his house, which was in the mountains and for insurance and fire purposes had to be clear of brush for 14 mile, and because he could not rely on other people, he would take pain medications, clear the fire hazard and then take a few days or a week off. He said it was difficult to quantify how often he had problems with his back, but he said he had back issues once a month. VA CAPRI records dated during the appeal period reflect pain in the thoracic spine as past medical history, as shown by the computerized problem list. Private treatment records dated during the appeal period reflect that the Veteran sought treatment for back pain. He was prescribed hydrocodone-acetaminophen for pain of the cervical spine, knee, low back, right shoulder, left shoulder, and osteoarthritis. The report of an October 2010 VA back examination provides that the Veteran complained of constant dull/aching pain in the lower back of 3/10, that flared to 10/10. He reported weakness, stiffness, fatigue, lack of endurance, weakness or tingling, decreased range of motion, and waking up in pain at night. The back disorder affected his activities of daily living. It resulted in severe flare-ups once a month that lasted for days, consisting of further functional impairment due to pain. Pain was worse with bending over, physical activity and heavy lifting. Pain was better with medication and rest. Current treatment consisted of Vicodin and Valium that were somewhat effective. On physical examination, range of motion was forward flexion to 90 degrees, extension to 35 degrees, flexion to 30 degrees bilaterally and rotation to 30 degrees bilaterally. There were no additional limitations following repetitive use times 3. The diagnosis was lumbosacral degenerative disc disease and spondylolisthesis of L5 on S1. The DeLuca factor for the lower back was a 0 [zero] degree additional loss of range of motion due to pain on repetitive use. There was no true fatigability, weakness, lack of endurance or incoordination of the lower back. Pain on repetitive use had a primary functional impact on the lower back. The report of a July 2014 VA Back (Thoracolumbar Spine) Conditions examination provides a pertinent diagnosis of degenerative arthritis of the lumbosacral spine, spondylolisthesis and degeneration of intervertebral disc of the lumbosacral spine. The Veteran reported pain in his low back most of the time. Sometimes the pain would radiate to the left or right but not down his legs (for several years). He said that the pain level was now 2/10. During the course of a day, the pain could get up to an 8-9/10. Aggravating factors were regular activities like watering or working in the garden or bending over. He had quit heavy lifting. Mitigating factors were stopping the precipitating activity, maybe taking a hydrocodone pill and a massager. Heat and ice sometimes helped. The Veteran reported flare-ups that impacted the function of his lumbosacral spine. He could be doing almost anything when his back disability flared up, and he had to stop and get down on his knees. The pain level was a 9/10. He then relaxed. A flare-up could last from a few minutes to a couple of weeks. He got 4-5 flare-ups a year. The Veteran occasionally used a brace when he was doing an activity that had caused him problems in the past. On physical examination, range of motion was forward flexion to 90 degrees, extension to 30 degrees, flexion to 30 degrees bilaterally and rotation to 30 degrees bilaterally. There was no objective evidence of painful motion on forward flexion, left lateral flexion or right lateral rotation. There was objective evidence of painful motion for all other movements at their endpoint. Following repetitive use times 3, the Veteran had no additional limitations in motion but did have functional loss and/or impairment due to pain on movement. The Veteran had no radicular pain or any other signs or symptoms due to radiculopathy. Muscle strength testing, reflex examination and sensory examination were normal. The Veteran did not have IVDS. The examiner stated that pain could significantly limit functional ability during flare-ups, or when the joint was used repeatedly over a period of time. However, it would be mere speculation to express any additional limitation in degrees of additional loss of range of motion because the Veteran was not examined during flare-ups or when the joint was used repeatedly over a period of time. The Veteran was not having a flare-up that day. He stated that when he did have a flare-up he got severe pain and crumpled down. He said that he would have a very difficult time doing the full range of motion activities he did today but could not estimate what the loss of function would be. The report of a June 2021 VA Back (Thoracolumbar Spine) Conditions examination provides a diagnosis of degenerative arthritis, degenerative disc disease other than IVDS, and spondylolisthesis. The Veteran reported flare-ups of the back that occurred a few times weekly, based on activity. The flare-ups were mild to severe and lasted hours. They were precipitated by overuse, and were alleviated by rest and medication. The Veteran's initial range of motion was abnormal or outside of normal range, with the result that he avoided lifting more than 30 pounds due to back pain, and avoided bending, stooping or crouching for more than a few minutes due to back pain. On physical examination, range of motion was forward flexion to 65 degrees, extension to 25 degrees, flexion to 20 degrees bilaterally and rotation to 25 degrees bilaterally. There was pain on each motion. Passive range of motion testing was the same as active range of motion, without pain. There was evidence of pain on weight-bearing and active motion, causing the functional loss that the Veteran avoided lifting more than 30 pounds due to back pain, and avoided bending, stooping or crouching for more than a few minutes due to back pain. There was no evidence of pain on non-weight-bearing, passive motion or rest/non-movement. The Veteran had no additional loss of function or range of motion after repetitive use testing with three repetitions. The Veteran was not being examined immediately after repeated use over time. The procured evidence (statements from the Veteran) did not suggest pain, fatigability, weakness, lack of endurance or incoordination which significantly limited functional ability with repeated use over time. The Veteran was not being examined during a flare-up. The procured evidence (statements from the Veteran) did suggest pain which significantly limited functional ability with flare-ups. The estimated range of motion in degrees during flare-ups was forward flexion to 50 degrees, extension to 15 degrees, flexion to 15 degrees bilaterally and rotation to 15 degrees bilaterally. Muscle strength testing, reflex examination and sensory examination were normal. The Veteran had no radicular pain or any other signs or symptoms due to radiculopathy. He did not have IVDS. He used a brace regularly as a normal mode of transportation, and as needed for back pain. Regarding the functional impact of the Veteran's back disability, he avoided lifting more than 30 pounds due to back pain, and avoided bending, stooping or crouching for more than a few minutes due to back pain. This would impact his ability to do physical work. The Board finds that the evidence is at least in equipoise that a 20 percent evaluation for the Veteran's lumbar spine disability is warranted for the period on appeal prior to June 29, 2021. In so finding, the Board recognizes that the VA examinations show that the Veteran's range of motion was full during that period. However, during the October 2010 and July 2014 VA examinations and the October 2017 hearing, the Veteran provided detailed and consistent testimony that flare-ups caused pain and affected his ability to function. The Board finds this evidence, read in the light most favorable to the Veteran, is reasonably consistent with and substantially similar to the description of impairment due to flare-ups he made during the June 2021 VA examination. Based on the Veteran's description of functional loss during flare-ups, the June 2021 examiner estimated the Veteran's range of motion in degrees during flare-ups as forward flexion to 50 degrees, extension to 15 degrees, flexion to 15 degrees bilaterally and rotation to 15 degrees bilaterally. The Board accordingly concludes that the Veteran's lumbar spine disability resulted in similar limitation of motion during the flare-ups he described during the October 2010 and July 2014 VA examinations and the October 2017 hearing. Such limitation included flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees. Accordingly, the Board finds that the criteria for a 20 percent rating were met prior to June 29, 2021. The Board also finds that the preponderance of the evidence is against an initial evaluation in excess of 20 percent at any time during the appeal period. The foregoing evidence does not show forward flexion of the thoracolumbar spine to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine, at any time during the appeal period. The Board again acknowledges the Veteran's lay reports of pain and flare-ups, as made during the hearing and each of the VA examinations. He is competent to report his symptoms. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, even considering his hearing testimony and VA examination reports, the record does not show that his limitation of motion approximates forward flexion of the thoracolumbar spine to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. The June 2021 VA examination report estimates the Veteran's range of motion in degrees during flare-ups as forward flexion to 50 degrees, extension to 15 degrees, flexion to 15 degrees bilaterally and rotation to 15 degrees bilaterally. As noted above, the Board concludes that the Veteran's lumbar spine disability resulted in the same limitation of motion during the flare-ups he described during the October 2010 and July 2014 VA examinations and the October 2017 hearing. Such limitation did not include forward flexion of the thoracolumbar spine to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. Accordingly, the Veteran's hearing testimony and the VA examination reports do not warrant a 40 percent evaluation under the General Rating. The Board also finds that the preponderance of the evidence is against a finding of neurological impairment such that a separate compensable rating is warranted. The July 2014 and June 2021 VA examinations found that the Veteran's muscle strength testing, reflex examination and sensory examination were normal, and he had no radicular pain or any other signs or symptoms due to radiculopathy. For the foregoing reasons, the Board finds that the evidence supports an initial 20 percent evaluation, but not higher, for lumbosacral degenerative disc disease, degenerative arthritis and spondylolisthesis of L5 on S1, prior to June 29, 2021. However, the preponderance of the evidence is against an initial evaluation in excess of 20 percent for lumbosacral degenerative disc disease, degenerative arthritis and spondylolisthesis of L5 on S1, from June 29, 2021. In denying an initial evaluation in excess of 20 percent at any time during the appeal period, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 2. Entitlement to an initial compensable evaluation for bilateral hearing loss. The Veteran generally contends that he is entitled to an initial compensable evaluation for bilateral hearing loss. During the October 2017 hearing, the Veteran testified that he left the water on outside his house because he could not hear it running even though other people could. When his cat got outside, he could hear it but not tell where it was. When he went to social events, where everyone was laughing and smiling, he had learned to smile and nod when people looked at him, so they thought he understood what they were saying. 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). An August 2010 VA examination reveals that the Veteran's Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: August 2010 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 10 20 60 60 37.5 96 LEFT 15 30 60 50 38.75 96 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. A July 2014 VA examination reveals that the Veteran reported that he could not separate conversations. He heard people say something and asked them if that's what they said and they said they did to say that, so he knew he did not hear it right. He stayed home a lot so he did not have to talk to people much. He lived in the country. 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: July 2014 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 10 25 65 55 38.75 92 LEFT 10 40 65 60 43.75 98 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. A June 2021 VA examination reveals that the Veteran reported that he needed to ask people to repeat themselves and he pretended to hear what people were saying. It was very hard to understand people in background noise, especially when he was playing cards. 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: June 2021 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 25 30 70 75 50 100 LEFT 10 45 70 90 53.75 100 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. Based on the evidence above, an initial compensable rating for the Veteran's bilateral hearing loss is not warranted. The Board expressly acknowledges its consideration of the lay evidence of record when adjudicating this claim, consisting of the Veteran's reports of the effects of his bilateral hearing loss. He 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). For the foregoing reasons, the preponderance of the evidence is against an initial compensable evaluation for bilateral hearing loss. In denying an initial compensable evaluation, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. M. C. GRAHAM Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Davitian, 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.