Citation Nr: 21006549 Decision Date: 02/04/21 Archive Date: 02/04/21 DOCKET NO. 17-12 345 DATE: February 4, 2021 ORDER A rating in excess of 20 percent for bilateral hearing loss is denied. FINDING OF FACT Throughout the appeal, the records do not show reliable exams for VA purposes indicating that the Veteran's hearing impairment in his right ear has been worse than Level VI and for his left ear worse than Level V. CONCLUSION OF LAW The criteria for a rating in excess of 20 percent for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.71a, Diagnostic Code (DC) 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marines Corps from December 1967 to July 1969, including combat service in the Republic of Vietnam and his decorations include the Combat Action Ribbon. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). In December 2019, the Veteran testified at a video-conference Board hearing before the undersigned Veterans Law Judge. At the hearing, the Veteran reported that his hearing loss has worsened, and the October 2020 VA examination corroborated his report. Increased Rating Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3. The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2009). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C. § 7104 (a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). Bilateral hearing loss The Veteran is currently rated under DC 6100 at 20 percent for bilateral hearing loss from July 18, 2013. The Veteran seeks a higher rating. An examination for hearing impairment for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a pure tone audiometry test. Examinations will be conducted without the use of hearing aids. 38 C.F.R. § 4.85 (a). Table VI, "Numeric Designation of Hearing Impairment Based on Puretone Threshold Average and Speech Discrimination," is used to determine a Roman numeral designation (I through XI) for hearing impairment based on a combination of the percent of speech discrimination (horizontal rows) and the pure tone threshold average (vertical columns). The Roman numeral designation is located at the point where the row and column intersect. 38 C.F.R. § 4.85 (b). Table VIA, "Numeric Designation of Hearing Impairment Based Only on Puretone Threshold Average," is used to determine a Roman numeral designation (I through XI) for hearing impairment based only on pure tone threshold average. Table VIA is used when the examiner certifies that the use of the speech discrimination test is not appropriate due to language difficulties, inconsistent speech discrimination scores, etc., or when indicated under the provisions of § 4.86. 38 C.F.R. § 4.85 (c). "Pure-tone threshold average" as used in Tables VI and VIA is the sum of the pure tone thresholds at 1000, 2000, 3000 and 4000 Hertz and divided by four. This average is used in all cases (including those under § 4.86) to determine a Roman numeral designation from Tables VI and VIA. 38 C.F.R. § 4.85 (d). Table VII, "Percentage Evaluations of Hearing Impairment," is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment in each ear. The horizontal rows represent the ear having the better hearing and the vertical columns represent the ear having the poorer hearing. The percentage evaluation is located at the point where the row and the column intersect. 38 C.F.R. § 4.85 (e) (2017). The Board finds that a rating higher than 20 percent is not warranted for his bilateral hearing loss. The Veteran reported that his bilateral hearing loss was more severe than shown in the July 2016 VA examination. See VA medical examination (July 2016). Thus, the Board remanded the issue in December 2019 and a VA medical evaluation was performed in October 2020 confirming the Veterans reports of worsening bilateral hearing loss. See VA medical examination (October 2020). The VA examination shows the left ear with 80 percent speech discrimination. Decibel (dB)loss at the puretone threshold of 1000 Hertz (Hz) is 30, with a 55 dB loss at 2000 Hz, an 85 dB loss at 3000 Hz, and a 90 dB loss at 4000 Hz. The average decibel loss is 65 in the left ear. The right ear shows 70 percent speech discrimination. Decibel (dB) loss at the puretone threshold of 1000 Hertz (Hz) is 45, with a 70 dB loss at 2000 Hz, an 80 dB loss at 3000 Hz, and a 90 dB loss at 4000 Hz. The average decibel loss is 71.25 in the right ear. Thus, the numeric designation for his right ear is VI and for his left ear is V which warrants a 20 percent rating. However, the record does not show that the Veteran's hearing impairment in his right ear has been worse than Level VI and for his left ear worse than Level V. Thus, a rating higher than 20 percent is not warranted. Although the Veteran is competent to report his observable hearing loss symptoms such as difficulty hearing, he is not competent to report that his hearing acuity was sufficient to warrant a higher evaluation under VA's tables for rating hearing loss disabilities. Such an opinion requires medical expertise and testing which has not been shown. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Moreover, as stated above, the assignment of disability ratings for hearing impairment are derived by a mechanical application of audiometric evaluation results to the rating schedule. Lendenmann, 3 Vet. App. at 349. Thus, even considering the reports as to the effects of his hearing loss on his daily life, the relevant evidence shows that the criteria for a rating in excess of 20 percent are not met. Given the foregoing, the Board finds that the preponderance of the evidence is against the claim for a rating higher than 20 percent and therefore it must be denied. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Alvarado- 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.