Citation Nr: 21005874 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 17-28 704A DATE: February 2, 2021 ORDER For the period from February 8, 2010 to August 19, 2015, entitlement to an increased rating in excess of 80 percent for bilateral hearing loss is denied. FINDING OF FACT For the period from February 8, 2010 to August 19, 2015, the Veteran’s bilateral hearing loss has been manifested by hearing acuity of no worse than Level X in the right ear and no worse than Level X in the left ear. CONCLUSION OF LAW The criteria for a rating in excess of 80 percent 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 FINDING AND CONCLUSION The Veteran served on active duty from September 1960 to June 1964. This matter is before the Board of Veterans’ Appeals (Board) on appeal from an August 2015 rating decision from a Department of Veterans’ Affairs (VA) Regional Office (RO). The Board remanded this claim in October 2020 to obtain two outstanding VA medical records pertinent to the period on appeal. Those documents have been associated with the file. The October 2020 Board remand also denied entitlement to a bilateral hearing loss rating greater than 60 percent for the period from August 20, 2015. As such, that stage is no longer on appeal and will not be discussed further in this decision. Increased Ratings The Veteran contends that he is entitled to a higher rating because he believes his hearing loss level from February 8, 2010 to August 19, 2015 was worse than reflected by the original disability rating. The Board’s appeal period begins February 8, 2010 and ends August 19, 2015, the day prior to the next applicable staged 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 [Hz]). 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 Hz) is 55 decibels (dB) 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 dB or less at 1000 Hz, and 70 dB or more at 2000 Hz, 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). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.38U.S.C. §5107;38C.F.R. §§3.102, 4.3; see also Gilbert v. Derwinski,1 Vet. App. 49, 53 (1990). The record contains very little relevant medical or lay evidence during this stage. During this stage, the Veteran’s bilateral hearing loss is rated at 80 percent disabling and there is only one adequate VA audiology examination for the Board to consider. An April 2010 VA examination reveals that the Veteran reported the functional effects as being unable to hear what people are saying and getting aggravated. 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 dB, were as follows: 4/2/2010 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 100 100 95 105+ 100 40% LEFT 95 105 100 105 101 48% Applying the results to Table VI, the findings yield a numeric designation of Level X in the right ear and Level X in the left ear. Entering the resulting bilateral numeric designation of Level X for the right ear and Level X for the left ear to 38 C.F.R. § 4.85, Table VII, equates to an 80 percent disability rating under Diagnostic Code 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was shown in both ears because pure tone thresholds at the four specified frequencies were 55 dB or more. Applying the results to Table VIa still yields Level X in the right ear and level X in the left ear. Thus, the exceptional pattern Levels also equates to an 80 percent disability rating and both tables yield the same result. In the Board’s October 2020 remand the RO was asked to locate two outstanding VA outpatient treatment records and associate them with the file: October 2012 and September 2014 audiology examinations. Those records have been associated with the file and reviewed. As stated above, the Maryland CNC speech discrimination test is to be used in order for the audiology examination to be adequate. 38 C.F.R. § 3.85. Unfortunately, the Veteran’s October 2012 examination indicated that the Northwestern University Auditory Test No. 6 (NU-6) was used. As a result, that examination is not adequate for VA rating purposes. Id. Additionally, the September 2014 audiology examination used the “CID W-22” standard and not the Maryland CNC. The September 2014 examination is also not adequate for VA rating purposes. Id. As the required speech discrimination test was used for neither the October 2012 nor the September 2014 audiology examinations, neither of the test results may be considered by the Board in determining the proper rating for this Veteran’s appeal period. Based on the evidence above, a rating in excess of 80 percent 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, including difficulty hearing that causes aggravation. 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, which is what is contemplated in the rating assigned. See Rossy v. Shulkin, 29 Vet. App. 142, 145 (2017). Accordingly, the preponderance of the evidence is against the claim of entitlement to a rating in excess of 80 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). LAURA E. COLLINS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Associate Counsel, S. Conti 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.