Citation Nr: 21006633 Decision Date: 02/04/21 Archive Date: 02/04/21 DOCKET NO. 16-17 708 DATE: February 4, 2021 ORDER Entitlement to an initial compensable rating for bilateral hearing loss prior to August 10, 2020 is denied. Entitlement to a rating in excess of 30 percent for bilateral hearing loss from August 10, 2020 is denied. FINDINGS OF FACT 1. Prior to August 10, 2020, the Veteran’s bilateral hearing has been manifested by hearing acuity of no worse than Level II in the right ear and no worse than Level II in the left ear. 2. From August 10, 2020, the Veteran’s bilateral hearing has been manifested by hearing acuity of no worse than Level VII in the right ear and no worse than Level VI in the left ear. CONCLUSIONS OF LAW 1. Prior August 10, 2020, the criteria for entitlement to a compensable rating for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100. 2. From August 10, 2020, the criteria for entitlement to a rating in excess of 30 percent for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1968 to February 1971. This matter comes before the Board of Veterans’ Appeals (Board) from a July 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In October 2019, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. The case was last before the Board in December 2019 and has returned to the Board for further appellate review. 1-2. Entitlement to a compensable rating prior to August 10, 2020, and in excess of 30 percent from August 10, 2020, for bilateral hearing loss Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Evaluations of hearing loss range from noncompensable to 100 percent, based upon 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 Hertz. 38 C.F.R. § 4.85, Diagnostic Code 6100. To evaluate the degree of disability from service-connected defective hearing, the rating schedule establishes eleven 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, Diagnostic Code 6100. 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). 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). Each ear is considered separately. The Veteran underwent three VA audiology examinations during the claim period. During a July 2015 VA examination, 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 25 35 60 100 55 88% LEFT 15 25 60 90 48 90% Applying the results to Table VI, the findings yield a numeric designation of Level II in the right ear and Level II in the left ear. Entering the resulting bilateral numeric designation of Level II for the right ear and Level II for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a noncompensable (0 percent) disability rating under Diagnostic Code 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. On VA examination in August 2016, 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 40 55 70 49 90% LEFT 15 25 55 70 41 92% Applying the results to Table VI, the findings yield a numeric designation of Level II in the right ear and Level I in the left ear. Entering the resulting bilateral numeric designation of Level II for the right ear and Level I for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a noncompensable (0 percent) disability rating under Diagnostic Code 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. On VA examination in August 2020, 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 50 60 90 100 75 62% LEFT 40 60 80 100 70 74% Applying the results to Table VI, the findings yield a numeric designation of Level VII in the right ear and Level VI in the left ear. Entering the resulting bilateral numeric designation of Level VII for the right ear and Level VI for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a 30 percent disability rating under Diagnostic Code 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. The Board notes that the Veteran submitted a private audiogram conducted on November 27, 2019. The audiogram revealed similar findings to the prior to audiograms. Although not interpreted, the graph appears to reflect average pure tone thresholds of 61 decibels in the right ear and 55 decibels in the left ear. Speech recognition testing revealed score was 100 in the right ear and 87 in the left ear; however, it is unclear whether the scores are Maryland CNC. Assuming, for the sake of argument, that the private audiogram was conducted fully within the parameters of 38 C.F.R. § 4.85(a), and applying the results to Table VI, the findings yield a numeric designation of Level II in the right ear and Level II in the left ear. Entering the resulting bilateral numeric designation of Level II for the right ear and Level II for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a noncompensable (0 percent) disability rating under Diagnostic Code 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. Based on a review of the evidence, the Board finds that the audiometric findings do not demonstrate that the Veteran is entitled to an initial compensable rating for hearing loss prior to August 10, 2020, and is not entitled to an initial rating higher than 30 percent for hearing loss from August 10, 2020. The Board has carefully considered the lay evidence of record when adjudicating this claim, as 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, 3 Vet. App. 345. In sum, the most probative evidence of record reflects findings consistent with a noncompensable rating prior to August 10, 2020, and of a 30 percent rating thereafter. Accordingly, entitlement to an initial compensable rating for bilateral hearing loss prior to August 10, 2020, and in excess of 30 percent thereafter, is not warranted. In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine does not apply. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). K. A. BANFIELD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Lance, 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.