Citation Nr: 21011722 Decision Date: 03/02/21 Archive Date: 03/02/21 DOCKET NO. 14-04 667 DATE: March 2, 2021 ORDER A rating in excess of 10 percent prior to November 20, 2019, and 30 percent thereafter, for a bilateral hearing loss disability is denied. FINDINGS OF FACT 1. Prior to November 20, 2019, the evidence of record shows that the Veteran’s bilateral hearing loss disability was manifested by no more than Level IV hearing acuity in the left ear and Level II hearing acuity in the right ear. 2. Beginning on November 20, 2019, the evidence of record shows that the Veteran’s bilateral hearing loss disability was manifested by no more than Level VII hearing acuity in the left ear and Level VI hearing acuity in the right ear. CONCLUSION OF LAW The criteria for a rating of 10 percent prior to November 20, 2019, and 30 percent thereafter for a bilateral hearing loss disability have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code (Code) 6100 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from February 1968 to December 1971. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2013 rating decision by the Department of Veterans Affairs (VA). This case was remanded in September 2018 and June 2020 for further development; it has since been re-assigned to the undersigned. The June 2020 Board remand directed the AOJ to obtain outstanding treatment records, including formal audiogram results from the June 2011, November 2012, and March 2018 audiology records. The Board finds that the AOJ has substantially complied with the prior remand directives, to the extent possible. See Stegall v. West, 11 Vet. App. 268, 1998. Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity caused by the given disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular Code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining, including degree of disability, is to be resolved in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). In any claim for an increased rating, “staged” ratings may be warranted where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). Ratings for hearing loss disability are derived from Table VII of 38 C.F.R. § 4.85 by a mechanical application of the rating schedule to numeric designations assigned after audiometric evaluations are performed. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). The numeric designations correspond to eleven auditory acuity levels, indicated by Roman numerals, where Level I denotes essentially normal acuity and Level XI denotes profound deafness. The assignment of the appropriate numeric level is based on the results of a controlled speech discrimination test (Maryland CNC test) in combination with the Veteran’s average pure tone thresholds. The average threshold is obtained from pure tone audiometric tests in the frequencies of 1000, 2000, 3000, and 4000 Hertz. 38 C.F.R. § 4.85. Rating specialists use either Table VI or VIa of 38 C.F.R. § 4.85 to determine the correct Roman numeral designation. Table VIa is employed when the use of speech discrimination tests is inappropriate due to language difficulties, inconsistent speech discrimination scores, etc., or where there is an exceptional pattern of hearing loss (as defined in 38 C.F.R. § 4.86). One such pattern occurs when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000) is 55 decibels or more. 38 C.F.R. § 4.86(a). Another pattern occurs when the pure tone threshold at 1000 Hertz is 30 decibels or less and the pure tone threshold at 2000 Hertz is 70 decibels or more. 38 C.F.R. § 4.86(b). 1. A rating in excess of 10 percent from September 6, 2011 to November 20, 2019 for a bilateral hearing loss disability By way of history, the Veteran initially filed a claim of increased rating for his bilateral hearing loss disability in November 2003. This claim was denied in an April 2004 rating decision. The Veteran did not appeal the decision and new and material evidence was not received within the applicable appeal period. Thus, the decision became final. The next communication that can be considered a claim for an increased rating for a bilateral hearing loss disability was received on September 6, 2011. Therefore, the “look-back” period for this matter is limited to September 6, 2010. July 2011 audiology notes indicate “moderately severe snhl, au” and list pure tone threshold results for the right and left ears. There is no indication of which frequencies were tested. The record does not contain any indication that the Maryland CNC test to determine speech discrimination as used. As such, these results are not adequate for rating purposes. The Manila VA Medical Center submitted a negative response stating that the July 2011 audiogram report was not available. Private treatment records from June 2012 note audiometric findings. However, the record does not contain any indication that the Maryland CNC test to determine speech discrimination as used. As such, these results are not adequate for rating purposes. Similarly, VA treatment records show audiogram results from November 2012 and March 2018. However, the record does not contain any indication that the Maryland CNC test to determine speech discrimination was used. As such, these results are not adequate for rating purposes. The Veteran underwent a private audiological evaluation in September 2013. However, the record does not show clearly that the Maryland CNC test to determine speech discrimination was used. As such, these results are not adequate for rating purposes. The Veteran underwent an April 2014 VA audio examination. However, audiometry was not able to be performed. The examiner noted that despite repeated attempts and reinstruction, the test results were not reliable and not suitable for rating purposes. During the Veteran’s May 2012 VA audio examination, audiometry revealed that puretone thresholds, in decibels, were: HERTZ 1000 2000 3000 4000 Average RIGHT 30 30 75 80 54 LEFT 30 35 80 80 56 The average of the puretone thresholds findings at 1000, 2000, 3000, and 4000 Hertz was 54 decibels in the right ear and 56 decibels in the left ear. The speech recognition score on the Maryland CNC word list was 84 percent for the right ear and 80 percent for the left ear. Applying the test results, rounding up, of this VA audiometric examination to Table VI of the Rating Schedule results in a Roman numeric designation of Level IV for the left ear and Level II for the right ear. 38 C.F.R. § 4.85, Table VI. Applying the Roman numeric designations to Table VII, the result is a 0 percent disability rating for the Veteran’s service-connected bilateral hearing loss. 38 C.F.R. § 4.85, Table VII, Code 6100. During the examination, the VA examiner described the functional effects caused by the Veteran’s hearing disability. Martinak v. Nicholson, 21 Vet. App. 447, 455-56 (2007). The examiner noted that the Veteran reported having problems hearing anything if there is background noise and relies on looking at someone to understand them when they are talking. Based on these reported descriptions of the functional effects of the Veteran’s hearing loss, the Board finds that the VA examination reports are in compliance with Martinak. Although this examination demonstrated the Veteran’s condition had improved from 10 percent disabling to 0 percent disabling, the AOJ found that the record as a whole does not show that sustained improvement was demonstrated, or that improvement would be maintained under the ordinary conditions of life. As such, the Veteran’s rating of 10 percent for his bilateral hearing loss was continued. See 38 C.F.R. § 3.344 Upon careful review of the evidence of record, the Board finds that the rating criteria for a disability rating in excess of 10 percent for his bilateral hearing loss have not been met at any time during the appeal period. The Board has considered the lay statements provided by the Veteran regarding his hearing loss. As was indicated above, rating a hearing loss disability involves the mechanical application of rating criteria to the results of specified audiometric studies. The probative medical evidence does not show the Veteran’s bilateral hearing loss has reached a disability rating in excess of 10 percent during the period prior to November 20, 2019. Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran’s statements are competent evidence as to which he has personal knowledge, such as difficulty hearing. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303, 310 (2007); and 38 C.F.R. § 3.159 (a)(2). Nevertheless, as a layperson, without the appropriate medical training and expertise, his statements are not competent evidence to provide a probative opinion on a medical matter, especially the severity of bilateral hearing loss disability in terms of the applicable rating criteria. Rather, this necessarily requires appropriate medical findings regarding the extent and nature of his bilateral hearing loss, including audiometric testing for puretone thresholds. Considering the results of the VA examination, entitlement to a rating in excess of 10 percent for the period prior to November 20, 2019 for a bilateral hearing loss disability is denied. Finally, in reaching this decision 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). The Board has limited the discussion above to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). 2. A rating in excess of 30 percent beginning November 20, 2019 for a bilateral hearing loss disability The Veteran’s bilateral hearing loss disability was increased to 30 percent disabling as a result of a November 2019 VA examination. The record does not contain any additional audiological examinations since November 2019. During the Veteran’s November 2019 VA audio examination, audiometry revealed that puretone thresholds, in decibels, were: HERTZ 1000 2000 3000 4000 Average RIGHT 30 50 85 85 63 LEFT 30 60 90 90 68 The average of the puretone thresholds findings at 1000, 2000, 3000, and 4000 Hertz was 63 decibels in the right ear and 68 decibels in the left ear. The speech recognition score on the Maryland CNC word list was 60 percent for the right ear and 64 percent for the left ear. Applying the test results, rounding up, of this VA audiometric examination to Table VI of the Rating Schedule results in a Roman numeric designation of Level VII for the left ear and Level VI for the right ear. 38 C.F.R. § 4.85, Table VI. Applying the Roman numeric designations to Table VII, the result is a 30 percent disability rating for the Veteran’s service-connected bilateral hearing loss. 38 C.F.R. § 4.85, Table VII, Code 6100. During the examination, the VA examiner described the functional effects caused by the Veteran’s hearing disability. See Martinak, 21 Vet. App. at 455-56. The examiner noted that the Veteran reported having problems understanding what people are saying; relying heavily on lip reading; experiences significant difficulty hearing in the presence of background noise; and feeling embarrassed when he mishears people. Based on these reported descriptions of the functional effects of the Veteran’s hearing loss, the Board finds that the VA examination reports are in compliance with Martinak. Upon careful review of the evidence of record, the Board finds that the rating criteria for a disability rating in excess of 30 percent for his bilateral hearing loss have not been met at any time during the appeal period. The Board has considered the lay statements provided by the Veteran regarding his hearing loss. As was indicated above, rating a hearing loss disability involves the mechanical application of rating criteria to the results of specified audiometric studies. The probative medical evidence does not show the Veteran’s bilateral hearing loss has reached a disability rating in excess of 30 percent during the period beginning November 20, 2019. See Fenderson, 12 Vet. App. The Veteran’s statements are competent evidence as to which he has personal knowledge, such as difficulty hearing. See Jandreau, 492 F.3d at 1377; Barr, 21 Vet. App. at 310; and 38 C.F.R. § 3.159(a)(2). Nevertheless, as a layperson, without the appropriate medical training and expertise, his statements are not competent evidence to provide a probative opinion on a medical matter, especially the severity of bilateral hearing loss disability in terms of the applicable rating criteria. Rather, this necessarily requires appropriate medical findings regarding the extent and nature of his bilateral hearing loss, including audiometric testing for puretone thresholds. Considering the results of the VA examination, entitlement to a rating in excess of 30 percent for the period beginning November 20, 2019 for a bilateral hearing loss disability is denied. Finally, in reaching this decision 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. See Gilbert, 1 Vet. App. (Continued on the next page)   The Board has limited the discussion above to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Doucette, 28 Vet. App. (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Tiffany Dawson Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board I. Kerner, 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.