Citation Nr: 21007583 Decision Date: 02/10/21 Archive Date: 02/10/21 DOCKET NO. 13-33 779A DATE: February 10, 2021 ORDER Entitlement to a compensable rating for bilateral hearing loss (BHL) prior to May 31, 2011 is denied. Entitlement to a rating in excess of 10 percent for BHL from May 31, 2011 to August 15, 2017 is denied. Entitlement to a 20 percent rating, but no higher, for BHL from August 16, 2017 is granted. FINDINGS OF FACT 1. Prior to May 31, 2011, the Veteran’s BHL was manifested at worst by level I in the right ear and level II in the left ear. 2. From May 31, 2011 to August 15, 2017, the Veteran’s BHL was manifested at worst by level IV in the right ear and level IV in the left ear. 3. From August 16, 2017, the Veteran’s BHL was manifested at worst by a level IV in the right ear and level VI for the left ear. CONCLUSIONS OF LAW 1. The criteria for a compensable rating for BHL prior to May 31, 2011 have not been met. See 38 U.S.C. § 1155; 38 C.F.R. §§ 4.85, 4.86. 2. The criteria for a rating in excess of 10 percent for BHL from May 31, 2011 to August 15, 2017 have not been met. See 38 U.S.C. § 1155; 38 C.F.R. §§ 4.85, 4.86. 3. The criteria for a 20 percent rating, but no higher, for BHL from August 16, 2017 have been met. See 38 U.S.C. § 1155; 38 C.F.R. §§ 4.85, 4.86. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1970 to December 1971. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). A December 2013 rating decision increased the Veteran’s disability rating for BHL to 10 percent, effective May 31, 2011. Although the Veteran initially requested a Board hearing on his December 2013 substantive appeal, he withdrew his Board hearing request in correspondence received in November 2015 and February 2016. This matter was remanded for additional development in July 2018 and April 2020. There has been substantial compliance with those previous remands.   INCREASED RATING Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155 ; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27. When rating the Veteran’s service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Separate higher or lower compensable evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as “staged” ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). Service connection for bilateral hearing loss was granted in April 2005. A noncompensable rating was assigned from January 2005. The Veteran filed a claim for an increased rating for his hearing loss in November 2010. Staged ratings have been assigned during the pendency of the appeal. 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). See 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. See 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. See 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. See 38 C.F.R. § 4.86 (b). 1. Entitlement to a compensable rating for BHL prior to May 31, 2011 is denied. In a March 2011 VAX, the Veteran’s Maryland CNC Word speech recognition score and pure tone thresholds, in decibels, were as follows: 1000 Hz 2000 Hz 3000 Hz 4000 Hz Average Maryland CNC Table IV Right Ear 25 40 65 65 48.75 96 I Left Ear 25 55 60 65 51.25 84 II Applying the results to Table VI, the findings yield a numeric designation of Level I in the right ear and Level II in the left ear. Entering the resulting bilateral numeric designation of Level I for the right ear and Level II for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a 0 percent disability rating under Diagnostic Code 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. Treatment records have been reviewed and considered but do not support the assignment of a higher rating. In so deciding, the findings of an October 20, 2010 hearing aid evaluation were reviewed. However, the examiner did not specify whether a Maryland CNC word recognition test was utilized. For that reason, this test is invalid for use in determining the nature and severity of his hearing loss for VA compensation and pension purposes.   2. Entitlement to a rating in excess of 10 percent for BHL from May 31, 2011 to August 15, 2017 is denied. The Veteran underwent a private audiology examination on May 31, 2011. The audiologist, K.D.B., M.A. CCC-A, specified that the testing utilized the Maryland CNC Word Lists and revealed mild to severe sloping high-frequency neurosensory hearing loss bilaterally. Specifically, the Veteran’s Maryland CNC Word speech recognition score and pure tone thresholds, in decibels, were as follows: 1000 Hz 2000 Hz 3000 Hz 4000 Hz Average Maryland CNC Table IV Right Ear 40 55 80 75 62.5 76 IV Left Ear 40 65 70 65 60 80 IV Applying the results to Table VI, the findings yield a numeric designation of Level IV in the right ear and Level IV in the left ear. Entering the resulting bilateral numeric designation of Level IV for the right ear and Level IV for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a 10 percent disability rating under Diagnostic Code 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. Treatment records have been reviewed and considered but do not support the assignment of a higher rating. In so deciding, the findings of a November 18, 2013 hearing aid evaluation were reviewed. The findings of that evaluation cannot be used for rating purposes. Again, the examiner did not specify whether a Maryland CNC word recognition test was utilized. For that reason, this test is invalid for use in determining the nature and severity of his hearing loss for VA compensation and pension purposes.   3. Entitlement to a 20 percent rating, but no higher, for BHL from August 16, 2017 is granted. On August 16, 2017, the Veteran was afforded audiological examination as the Veteran asserted that his hearing had increased in severity. Unlike the earlier referenced hearing evaluations, this test specified that the Maryland CNC was utilized. In this regard, his Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: 1000 Hz 2000 Hz 3000 Hz 4000 Hz Average Maryland CNC Table IV Right Ear 35 50 75 80 60 76 IV Left Ear 35 60 60 75 57.5 64 VI Applying the results to Table VI, the findings yield a numeric designation of Level IV in the right ear and Level VI in the left ear. Entering the resulting bilateral numeric designation of Level IV for the right ear and Level VI for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a 20 percent disability rating under Diagnostic Code 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. In an April 2019 VAX, the Veteran’s Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: 1000 Hz 2000 Hz 3000 Hz 4000 Hz Average Maryland CNC Table IV Right Ear 45 60 75 80 65 92 II Left Ear 45 60 65 75 61 88 III Applying the results to Table VI, the findings yield a numeric designation of Level II in the right ear and Level III in the left ear. Entering the resulting bilateral numeric designation of Level II for the right ear and Level III for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a 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 the above, the evidence is so evenly balanced as to allow the application of the benefit of the doubt rule as required by the law and VA regulations. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3. The Veteran has an August 2017 examination that shows a 20 percent is warranted and an April 2019 VAX that shows a 0 percent rating is warranted. The findings of the August 2017 evaluation were not even discussed by the April 2019 examiner. Thus, affording the Veteran the benefit of the doubt, a grant a 20 percent rating from August 16, 2017, is warranted. A higher evaluation is not warranted as there is nothing in the record to suggest a 30 percent rating or higher is warranted. Additional considerations To the extent that the Veteran argues his hearing loss was more severe than represented by the above evidence, he does not have either the education or training to offer a medical opinion challenging the adequacy of the testing, and as there is no competent evidence of record to support that his hearing loss was, in fact, more severe than indicated on examination, the Veteran’s assertions are not probative. See Layno v. Brown, 6 Vet. App. 465 (1994), Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Thus, the most probative medical evidence as to the severity of the Veteran’s hearing loss is the above evaluations and examinations. Disability ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered.” See Lendenmann v. Principi, 3 Vet. App. 345 (1992). 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). Thus,   although the Board sympathizes with the Veteran’s frustration at his decreased hearing acuity, and his need for hearing aids, the Board must follow the law and regulations as they are written and to apply them equally to all similarly situated Veterans. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Smith, 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.