Citation Nr: 21007113 Decision Date: 02/08/21 Archive Date: 02/08/21 DOCKET NO. 19-02 921A DATE: February 8, 2021 ORDER A rating greater than 60 percent for service-connected bilateral hearing loss prior to November 17, 2020, is denied. FINDING OF FACT During the relevant period prior to November 17, 2020, the evidence does not establish a level of hearing loss sufficient to warrant a rating greater than 60 percent. CONCLUSION OF LAW The criteria for a rating greater than 60 percent for bilateral hearing loss, during the relevant period prior to November 17, 2020, are not met. 38 U.S.C. §§ 1155; 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.7, 4.85, 4.86, Diagnostic Code (DC) 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1953 to June 1955. This appeal to the Board of Veterans’ Appeals (Board) arose from a July 2018 rating decision in which the Department of Veterans (VA) Regional Office (RO) increased the Veteran’s service-connected hearing loss rating to 60 percent, effective June 14, 2018. The Veteran disagreed with that determination and perfected an appeal to the Board. This appeal has been advanced on the Board’s docket. See 38 U.S.C. § 7107(a)(2) and 38 C.F.R. § 20.900(c). In July 2020, the Veteran and his daughter testified at Board hearing. A transcript of the hearing has been associated with the claims file. The instant matter was previously before the Board August 2020, at which time it was remanded to the agency of original jurisdiction (AOJ) for further development, to specifically include affording the Veteran a VA audiology examination to assess the severity of his service-connected hearing loss. Upon completion of the requested development, the AOJ issued a November 2020 rating decision in which it increased the Veteran’s hearing loss rating to 100 percent, effective November 17, 2020. A supplemental statement of the case (SSOC) was also issued addressing a rating greater than 60 percent prior to November 17, 2020, and the matter was returned to the Board for further appellate review. Here, although the Veteran has now been awarded the maximum rating available to hearing loss, because the increase was not awarded for the entirety of the period on appeal, the issue of entitlement to a rating greater than 6 percent prior to November 17, 2020, remains in appellate status. See AB v. Brown, 6 Vet. App. 35, 38 (1993). Increased Disability Rating Here, the Veteran’s service-connected hearing loss has been evaluated under 38 C.F.R. § 4.85, DC 6100. 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, DC 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). Relevant to the matter on appeal, the Board notes that the Veteran filed for an increased rating for his service-connected hearing loss in June 2018. The Veteran was then afforded a VA audiological examination in July 2018. Results of audiometric testing conducted as part of that examination shows that 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 75 95 95 105 93 48 LEFT 80 100 100 105 96 48 Application of the above-cited testing results to Table VI reveals Level IX hearing acuity in the right ear and Level IX hearing acuity in the left ear. 38 C.F.R. § 4.85, Table VI. This results in a 60 percent disability rating, in accordance with the standards found in Table VII. 38 C.F.R. § 4.85, Table VII. Further, because the pure tone threshold at each specified frequency for both ears is 55 decibels of more, 38 C.F.R. § 4.86 is also for application. Applying the pure tone threshold average for the Veteran’s right and left ears to Table VIa, the Veteran is shown to have Level IX hearing acuity in each ear. This also results in a 60 percent disability rating, in accordance with the standards found in Table VII. 38 C.F.R. § 4.85. Thus, the July 2018 VA audiology examination report does not support the assignment of a rating greater than the already assigned 60 percent. A review of the record also fails to reveal any recorded audiometric data until the Veteran was again examined on November 17, 2020, the report of which revealed an increase in the severity of the Veteran’s hearing loss to the 100 percent level. Although VA treatment records show that the Veteran was seen for hearing aid fittings, audiometric testing was not conducted. Given the data contained in the July 2018 audiology examination report, and because there is no other audiometric data dated prior to the November 17, 2020, the Board finds no basis upon which to assign a rating greater than 60 percent during the relevant time period prior to November 17, 2020. In so concluding, the Board has expressly considered the lay evidence of record when adjudicating this claim, including the Veteran’s difficulties with understanding speech, especially when in environments where background noise is present. 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 also contemplate speech reception thresholds and ability to hear spoken words on Maryland CNC testing. Thus, the functional impact that the Veteran describes is contemplated by the rating criteria. Doucette v. Shulkin, 28 Vet. App. 366 (2017). Indeed, the Veteran’s complained of reduced hearing acuity and clarity, which is what is contemplated in the rating assigned. See Rossy v. Shulkin, 29 Vet. App. 142, 145 (2017). The Board additionally notes that the Veteran has indicated problems with balance, dizziness, and mental health that he attributes to his hearing loss. The Board acknowledges that the rating criteria do not account specifically for functional effects other than difficulty hearing or understanding speech, to include those indicated by the Veteran. Here, however, the Veteran has specifically sought service connection for dizziness and balance problems related to his service-connected hearing loss, which claims were denied in ann April 2019 rating decision. During the July 2020 hearing, the Veteran’s representative acknowledged the denial of those claims and indicated that she had initiated an appeal as to those denials. Accordingly, as service connection for dizziness and balance problems related to the Veteran’s hearing loss has been separately adjudicated, the Board finds that such symptoms need not be considered as part of the Veteran’s current increased rating claim. Additionally, the Veteran was awarded service connection for major depressive disorder, secondary to service-connected hearing loss via the April 2019 rating decision. (Parenthetically, the Board notes that the record does not contain a VA Form 10182 (Decision Review Request: Board Appeal (Notice of Disagreement (NOD)) following issuance of the April 2019 rating decision. If the Veteran’s representative did in fact file an NOD, she is encouraged to inquire with VA as to the status of that NOD. Additionally, the Veteran is encouraged to follow-up with his representative regarding any disagreement with April 2019 rating decision. If it is determined that an NOD was not in fact filed and the Veteran still wishes to pursue claims for service connection for dizziness and balance problems related to his service-connected hearing loss, the Veteran may file a Supplemental Claim along with any additional evidence not previously considered. 38 C.F.R. § 3.2501. If new and relevant is submitted, VA will issue another decision on the claims, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision.) Given all the above, the Board finds that there is no basis for assigning a rating greater than 60 percent during the relevant time period prior to November 17, 2020, and that the claim for an increased rating for bilateral hearing loss must be denied. In reaching these conclusions, the Board has considered the applicability of the benefit-of-the doubt doctrine; however, given the mechanical nature of deriving schedular ratings for hearing loss, that doctrine is not applicable. See Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). JAMES L. MARCH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Neilson, 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.