Citation Nr: 21008532 Decision Date: 02/17/21 Archive Date: 02/17/21 DOCKET NO. 11-30 759 DATE: February 17, 2021 ORDER A compensable rating for bilateral hearing loss prior to December 11, 2020, and a rating greater than 20 percent from December 11, 2020, are denied. FINDINGS OF FACT 1. 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 III in the left ear prior to December 11, 2020. 2. The Veteran’s bilateral hearing has been manifested by hearing acuity of no worse than Level IV in the right ear and no worse than Level VI in the left ear from December 11, 2020. CONCLUSION OF LAW The criteria for a compensable rating prior to December 11, 2020, and the criteria for a rating in excess of 20 percent for bilateral hearing loss from December 11, 2020, 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 FINDING AND CONCLUSION The Veteran had active service from October 1971 to September 1973. These issues were previously before the Board. In August 2020, the Board remanded the appeal to the agency of original jurisdiction (AOJ) for additional development. Specifically, the Board directed the AOJ to readjudicate the Veteran’s left ear hearing loss in light of the grant of service connection for right hearing loss. Following evidentiary development, the VA Appeals Management Center (AMC) granted a 20 percent rating for the Veteran’s bilateral sensorineural hearing loss effective December 10, 2020. The AOJ also issued a supplemental statement of the case (SSOC) in December 2020, denying a compensable rating for bilateral hearing loss prior to December 10, 2020, and a rating greater than 20 percent from December 10, 2020. The Veteran’s VA claims file has been returned to the Board for further appellate proceedings. Thus, the Board finds that the AOJ substantially complied with the remand directives and no further action is necessary in this regard. Stegall v. West, 11 Vet. App. 268 (1998). In light of the development above, the claim for a compensable rating for left ear hearing loss is recharacterized as a claim for a compensable rating prior to December 10, 2020, and for a rating greater than 20 percent from December 10, 2020, for service-connected bilateral hearing loss. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.902(c). 38 U.S.C. § 7107(b). A compensable rating for bilateral hearing loss prior to December 10, 2020 and for a rating greater than 20 percent thereafter The Veteran contends that his disability did not worsen on the day of the VA examination on December 10, 2020, and that he is entitled to a compensable rating prior to December 10, 2020. Except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 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. Any reasonable doubt regarding the degree of disability is resolved in favor of the Veteran. 38 C.F.R. § 4.3. It is not expected that every case will show every criterion for a particular rating. 38 C.F.R. § 4.21. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). In May 2010, the Veteran submitted a claim of service connection for bilateral hearing loss. In an October 2010 rating decision, the AOJ granted service connection for the Veteran’s left ear hearing loss with an evaluation of 0 percent effective May 11, 2010 and denied the claim of service connection for right ear hearing loss. In September 2010, the audiogram showed that the Veteran’s pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 20 35 65 65 LEFT 25 25 35 35 55 The puretone threshold averages were 46 decibels for the right ear and 38 decibels for the left. His speech discrimination scores were 94 percent for the right ear and 94 percent for the left using the Maryland CNC wordlist, amounting to a Level I hearing loss for the right ear and Level I hearing loss for the left ear resulting in a noncompensable rating. In April 2015, the audiogram showed that the Veteran’s pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 25 60 75 70 LEFT 40 45 70 70 75 The puretone threshold averages were 58 decibels for the right ear and 65 decibels for the left. His speech discrimination scores were 92 percent for the right ear and 88 percent for the left using the Maryland CNC wordlist, amounting to a Level II hearing loss for the right ear and Level III hearing loss for the left ear resulting in a noncompensable rating. In March 2019, the audiogram showed that the Veteran’s pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 35 30 50 65 65 LEFT 25 40 50 60 70 The puretone threshold averages were 53 decibels for the right ear and 55 decibels for the left. His speech discrimination scores were 84 percent for the right ear and 90 percent for the left using the Maryland CNC wordlist, amounting to a Level II hearing loss for the right ear and Level II hearing loss for the left ear resulting in a noncompensable rating. On December 10, 2020, the audiogram showed that the Veteran’s pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 45 45 60 80 75 LEFT 60 70 70 80 90 The puretone threshold averages were 65 decibels for the right ear and 78 decibels for the left. His speech discrimination scores were 76 percent for the right ear and 68 percent for the left using the Maryland CNC wordlist, amounting to a Level IV hearing loss for the right ear and Level VI hearing loss for the left ear resulting in a 20 percent rating. Applying the criteria set forth above to the facts in this case, the Board finds that the preponderance of the evidence is against the assignment of a compensable rating prior to December 10, 2020 and a rating greater than 20 percent from December 10, 2020. Hearing loss is rated under DC 6100. 38 C.F.R. § 4.85. Once a hearing disability has been established, a numeric designation of hearing impairment is determined for each ear by applying the puretone threshold average and Maryland CNC percentage scores to Table VI (“Numeric Designation of Hearing Impairment Based on Puretone Threshold Average and Speech Discrimination”), which results in a Roman numeral designation. 38 C.F.R. § 4.85(b), Table VI. Disability ratings are then assigned by combining the level of hearing loss in each ear in Table VII (“Percentage Evaluation for Hearing Impairment”). 38 C.F.R. § 4.85(e), Table VII; see Lendenmann v. Principi, 3 Vet. App. 345 (1992). Table VI is generally used to determine the Roman numeral designation (I through XI) for hearing impairment in each ear, unless an exceptional pattern of hearing loss is shown, in which case Table VIa may be used. 38 C.F.R. § 4.86. Here, the Veteran’s hearing loss does not show an exceptional pattern (as set forth in Section 4.86) and therefore Table VI will be used. The record contains the results of numerous audiological examinations and hearing tests. As discussed above, his worst test results were recorded at the December 2020 VA examination, with results corresponding with Level IV hearing loss in his right ear and Level VI hearing loss in his left ear, which corresponds to a 20 percent rating. See Tables VI and VII, 38 C.F.R. § 4.85. Other examinations show results corresponding with 0 percent ratings, including the penultimate examination in March 2019. Accordingly, the VA examinations of record do not support a compensable rating prior to December 10, 2020 nor a rating greater than a 20 percent rating from December 10, 2020. The benefit-of-the-doubt-doctrine is therefore not for application and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. JOHN Z. JONES Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board H. Yun 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.