Citation Nr: 21010806 Decision Date: 02/25/21 Archive Date: 02/25/21 DOCKET NO. 18-44 251 DATE: February 25, 2021 ORDER Entitlement to an evaluation in excess of 10 percent for bilateral hearing loss is denied. FINDING OF FACT For the entire period on appeal, the Veteran’s bilateral hearing has been manifested by hearing acuity of no worse than Level V in the right ear and no worse than Level IV in the left ear. CONCLUSION OF LAW The criteria for an evaluation in excess of 10 percent for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85, Diagnostic Code 6100 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1962 to November 1965. This case is before the Board of Veterans’ Appeals (Board) on appeal from a June 2016 rating decision by a Department of Veterans Affairs (VA) Regional Office. In May 2019 and November 2020, the Board remanded the matter for more development. Now the matter is returned to the Board. A disability rating is determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule). See generally 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can practicably be determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. See 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2018). Separate diagnostic codes identify the various disabilities. 38 C.F.R. § 4.27 (2018). Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). 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, Diagnostic Code 6100 (2019). 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) (2019). 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) (2019). An October 2016 VA examination reveals that the Veteran reported that he is unable to understand complete sentences and TV programs and has difficulty in understanding in noisy conditions. He stated that his hearing loss causes extreme problems at his part time job. The Veteran’s Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: October 7, 2016 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 50 65 65 65 61 82 LEFT 45 65 70 70 63 76 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. A January 2021 private audiological evaluation, the Veteran reported a long standing history of bilateral hearing loss. The Veteran’s Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: January 28, 2021 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 55 65 65 65 63 80 LEFT 50 70 75 80 69 80 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 disability rating under Diagnostic Code 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was shown in the right ear. Applying the results to Table VIA yields Level V in the right ear. Entering the resulting bilateral numeric designation of Level V 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. The Board notes that numeric designation using both Tables VI and VIA for the right ear yields the same disability rating of 10 percent. The Board expressly acknowledges its consideration of the lay evidence of record when adjudicating this claim, including the statement from the Veteran’s wife regarding the symptoms of the Veteran’s bilateral hearing loss. See December 2020 Statement from P.T.D. The statement of the Veteran’s wife is competent evidence to report difficulty with the Veteran’s 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 contemplate speech reception thresholds and ability to hear spoken words on Maryland CNC testing. The functional impact that the Veteran’s wife describes, is contemplated by the rating criteria. Doucette v. Shulkin, 28 Vet. App. 366 (2017). As the preponderance of the of the most probative evidence is against the claim of entitlement to an evaluation in excess of 10 percent for bilateral hearing loss, the doctrine of reasonable doubt does not apply here. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Consequently, the Board finds that the Veteran’s entitlement to an evaluation in excess of 10 percent for bilateral hearing loss is not warranted. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85, Diagnostic Code 6100 (2019). MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. E. Kim, 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.