Citation Nr: 21007950 Decision Date: 02/11/21 Archive Date: 02/11/21 DOCKET NO. 18-12 172 DATE: February 11, 2021 ORDER Entitlement to an initial compensable rating for bilateral hearing loss for the period prior to December 9, 2020, is denied. For the period beginning December 9, 2020, entitlement to a disability rating in excess of 20 percent for bilateral hearing loss is denied. FINDINGS OF FACT 1. For the period prior to December 9, 2020, the Veteran’s bilateral hearing loss has been manifested by a hearing acuity of level V in the right ear and level I in the left ear. 2. For the period beginning December 9, 2020, the Veteran’s bilateral hearing loss has been manifested by a hearing acuity of level IV in the right ear and level VI in the left ear. Based on these objective ratings, the Veteran is due a disability rating of 20 percent. CONCLUSION OF LAW 1. For the period prior to December 9, 2020, the criteria for entitlement to an increased compensable rating 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. 2. For the period beginning December 9, 2020, the criteria for entitlement to a disability rating in excess of 20 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 FINDINGS AND CONCLUSIONS The Veteran served in the U.S. Air Force from October 1975 to November 1977. In August 2020 the Board of Veterans’ Appeals (Board) remanded the Veteran’s claim for additional development and a new examination. The claim has since been returned to the Board for further appellate action. The Board is satisfied there was substantial compliance with its remand orders and is therefore ready to adjudicate the issue fully. See Dyment v. West, 13 Vet. App. 141, 146-147 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998). In May 2020, the Veteran had a hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript has been associated with the electronic claims file. 1. Entitlement to a disability rating in excess of 0 percent prior to December 9, 2020 and in excess of 20 percent thereafter for bilateral hearing loss The Veteran contends that he is entitled to a higher disability rating for bilateral hearing loss. From September 2016 to December 2020, the Veteran was service connected and in receipt of a noncompensable disability rating for his bilateral hearing loss. After the December 2020 VA examination, the Department of Veterans Affairs (VA) Regional Office (RO) increased the Veteran’s disability rating to 20 percent with an effective date of December 9, 2020. The Veteran was notified that this was a partial grant of the benefit sought on appeal and the issue on appeal was not considered to be fully resolved. AB v. Brown, 6 Vet. App. 35 (1993). Disability evaluations are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14. In evaluating service-connected hearing loss, disability ratings are derived from mechanical application of the rating schedule to numeric designations assigned after audiometric evaluations are performed. Lendenmann v. Principi, 3 Vet. App. 345 (1992). Evaluations of bilateral hearing loss range from noncompensable to 100 percent based on organic impairment of hearing acuity, as measured by a controlled speech discrimination test (Maryland CNC) and the average hearing threshold, as measured by puretone audiometric tests at the frequencies of 1,000, 2,000, 3,000 and 4,000 Hertz. The rating schedule establishes 11 auditory acuity levels designated from Level I, for essentially normal hearing acuity, through level XI for profound deafness. 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 puretone audiometry test. Examinations will be conducted without the use of hearing aids. 38 C.F.R. § 4.85(a). Under 38 C.F.R. § 4.85, 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 puretone threshold average (vertical columns). The Roman numeral designation is located at the point where the percentage of speech discrimination and puretone average intersect. 38 C.F.R. § 4.85(b). The puretone threshold average is the sum of the puretone thresholds at 1,000, 2,000, 3,000 and 4,000 Hertz, divided by 4. This average is used in all cases to determine the Roman numeral designation for hearing impairment. 38 C.F.R. § 4.85(d). Table VI % of discrimination Puretone Threshold Average 0-41 42-49 50-57 58-65 66-73 74-81 82-89 90-97 98+ 92-100 I I I II II II III III IV 84-90 II II II III III III IV IV IV 76-82 III III IV IV IV V V V V 68-74 IV IV V V VI VI VII VII VII 60-66 V V VI VI VII VII VIII VIII VIII 52-58 VI VI VII VII VIII VIII VIII VIII IX 44-50 VII VII VIII VIII VIII IX IX IX X 36-42 VIII VIII VIII IX IX IX X X X 0-34 IX X XI XI XI XI XI XI XI Alternatively, VA regulations provide that in cases of exceptional hearing loss, when the puretone thresholds at each of the four specified frequencies (1,000, 2,000, 3,000 and 4,000 Hertz) is 55 decibels or more, 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. Each ear will be evaluated separately. 38 C.F.R. § 4.86(a). The provisions of 38 C.F.R. § 4.86(b) further provide that, when the puretone threshold is 30 decibels or less at 1,000 Hertz, and 70 decibels or more at 2,000 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. That numeral will then be elevated to the next higher Roman numeral. Each ear will be evaluated separately. Table VIA Numeric designation of hearing impairment based only on puretone threshold average: 0-41 42-48 49-55 56-62 63-69 70-76 77-83 84-90 91-97 98-104 105+ I II III IV V VI VII VIII IX X XI The findings for each ear from either Table VI or Table VIA, are then applied to Table VII (Percentage Evaluations for Hearing Impairment) to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment of each ear. The horizontal rows represent the ear having the better hearing and the vertical columns the ear having the poor hearing. The percentage evaluation is located at the point where the rows and column intersect. 38 C.F.R. § 4.85(e) Table VII Percentage evaluation for hearing impairment (diagnostic code 6100)   Poorer Ear XI 100*                     X 90 80                   IX 80 70 60                 VIII 70 60 50 50               VII 60 60 50 40 40             VI 50 50 40 40 30 30           V 40 40 40 30 30 20 20         IV 30 30 30 20 20 20 10 10       III 20 20 20 20 20 10 10 10 0     II 10 10 10 10 10 10 10 0 0 0   I 10 10 0 0 0 0 0 0 0 0 0   XI X IX VIII VII VI V IV III II I From the time of the Veteran’s claim, two hearing examinations have been conducted. One in March 2017, four months after the filing of the fully developed claim for hearing loss, and another in December 2020, after the Veteran’s claim was remanded by the Board, requiring another examination. There is no other audiological testing of record relevant to the period on appeal. The 2017 hearing examination puretone threshold levels were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 30 40 55 45 42.5 LEFT 25 40 45 45 38.75 The speech discrimination score for the March test, determined using the Maryland CNC test, showed a 100 percent score for both ears. Applying the March results to Table VI, the findings yield a numeric designation of Level I in the right ear and in the left ear. Entering the bilateral numeric designation of Level I for the right ear and Level I for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a noncompensable disability rating under Diagnostic Code 6100. An exceptional hearing pattern is not shown and C.F.R. § 4.86 is not applicable. At the May 2020 board hearing, the Veteran made lay statements that he previously had not reported in March 2017, stating that his hearing loss makes it difficult for him to hear the TV or radio, and makes it so he has to ask people to repeat themselves frequently. The subsequent December 2020 VA examination puretone threshold levels, in decibels were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 50 55 60 50 54 LEFT 50 60 55 60 56 The speech discrimination scores from the examination, as determined by the Maryland CNC Test, showed a 76 percent in the right ear and a 62 percent in the left ear, respectively. 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 hearing pattern is not shown and C.F.R. § 4.86 is not applicable. The audiological differences in the March 2017 examination and the December 2020 examination are noted and the Veteran’s disability rating was subsequently changed to reflect these differences. However, disability ratings for hearing loss for VA purposes are mechanical and the Board finds there is no other evidence of record to show that the Veteran is due a rating in excess of the 20 percent he was afforded in December 2020. The Board expressly acknowledges its consideration of the lay evidence of record when adjudicating this claim, including the Veteran’s lay contentions of hearing loss affecting his ability to communicate with others and his ability to hear the TV and radio. The Veteran is competent to report difficulty with his hearing; however, as noted above, 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). 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). Therefore, the Veteran’s claim for an increased rating, in excess of 0 percent prior to December 9, 2020 and in excess of 20 percent beginning December 9, 2020 for his bilateral hearing loss is denied. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100. H. SEESEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E.L. Aumiller, 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.