Citation Nr: 21011349 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 16-31 489 DATE: March 1, 2021 ORDER Entitlement to a compensable rating prior to August 1, 2020, and in excess of 50 percent thereafter, for bilateral hearing loss is denied. FINDING OF FACT 1. Prior to August 1, 2020, the Veteran’s right ear hearing was manifested by hearing acuity no worse than Level I. 2. Prior to August 1, 2020, the Veteran’s left ear was manifested by hearing acuity no worse than Level II. 3. Since August 1, 2020, the Veteran’s right ear has been manifested by hearing acuity no worse than Level VIII 4. Since August 1, 2020, the Veteran’s left ear has been manifested by hearing acuity no worse than level IX. CONCLUSION OF LAW The criteria for entitlement to a compensable rating prior to August 1, 2020, and in excess of 50 percent thereafter, for bilateral hearing loss have not been met. 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 served on active duty in the United States Army from September 1967 to September 1969. At a March 2019 Travel Board hearing, the Veteran testified before the undersigned Veterans Law Judge. A transcript of the proceeding has been associated with the claims file. This matter was previously before the Board in July 2019 when it was remanded for further development. The Board finds substantial compliance with the previous remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to a compensable rating prior to August 1, 2020, and in excess of 50 percent thereafter, for bilateral hearing loss is denied. The Veteran was originally awarded service connection for bilateral hearing loss in an April 23, 2010 rating decision and a noncompensable initial rating was awarded. The Veteran filed this claim for an increased rating in August 2013. In July 2019, the Board remanded this matter in order to obtain a new VA examination. In August 2020, the RO awarded a 50 percent rating for the Veteran’s bilateral hearing loss, effective August 1, 2020, the date of the VA examination confirming decreased hearing thresholds. As this rating increase does not represent the maximum allowable under the law and the Veteran has not indicated that the increase satisfies his appeal, the matter of the appropriate rating remains on appeal. A.B. v. Brown, 6 Vet. App. 35 (1993). 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. 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). A June 2014 examination reveals that the Veteran reported difficulty hearing and that he has to turn up the volume on the television and the radio in order to hear. He also reported struggling to hear what others are saying and has to be in the room with them in order to catch part of what was said. 38 C.F.R. § 4.10; Martinak v. Nicholson, 21 Vet. App. 447 (2007). The Veteran’s Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: HERTZ Avg CNC 500 1000 2000 3000 4000 Right 20 20 15 25 30 22.5 96 Left 20 20 35 65 70 47.5 96 Applying these results to Table VI yields a numeric designation of Level I, for the right ear and Level I for the left ear. Entering the resulting 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 0 percent disability rating under Diagnostic Code 6100. Following the June 2014 examination, the November 2014 rating decision was issued, and the 0 percent disabling rating was continued. The Veteran was again provided a VA examination in August 2016. The Veteran again reported difficulty hearing conversationally and generally in his daily life. The Veteran’s Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: HERTZ Avg CNC 500 1000 2000 3000 4000 Right 25 35 30 30 30 31.2 96 Left 30 40 50 70 70 57.5 96 Applying these results to Table VI yields a numeric designation of Level I, for the right ear and Level II for 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. Most recently, the Veteran was examined in August 2020. The Veteran reported his hearing is progressively getting worse. He stated it is so frustrating having to ask people to repeat over and over. 38 C.F.R. § 4.10; Martinak v. Nicholson, 21 Vet. App. 447 (2007). The Veteran’s Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: HERTZ Avg CNC 500 1000 2000 3000 4000 Right 60 60 85 95 95 84 92 Left 80 85 90 95 100 93 94 Applying these results to Table VI yields a numeric designation of Level III, for the right ear and Level III for the left ear. Entering the resulting bilateral numeric designation of Level III 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 shown in both ears. Applying the results of the right ear to Table VIA yields Level VIII in the right ear. Applying the results of the left ear to Table VIA yields Level IX in the left ear. Entering the resulting bilateral numeric designation of Level VIII for the right ear and Level IX for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a 50 percent disability rating under Diagnostic Code 6100. Therefore, here, Table VIA yields the highest rating. The August 2020 rating decision assigned this 20 percent evaluation. Based on the evidence above, a compensable rating prior to August 1, 2020, and in excess of 50 percent thereafter is not warranted. The Board has considered the lay evidence of record, including the Veteran’s reports of difficulty communicating with people. The Veteran is competent to report the difficulties he has in hearing the television, radio, and people. The Board empathizes with the Veteran and recognizes the difficulty this has placed on his everyday life. 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 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). Accordingly, the preponderance of the most probative evidence is against the claim of entitlement to a compensable rating prior to August 1, 2020, and in excess of 50 percent thereafter, for bilateral hearing loss. In reaching this conclusion, 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). MICHAEL E. KILCOYNE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Johnson, 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.