Citation Nr: 21012767 Decision Date: 03/05/21 Archive Date: 03/05/21 DOCKET NO. 19-04 074 DATE: March 5, 2021 ORDER Entitlement to a compensable rating prior to December 11, 2020, for bilateral hearing loss, and a rating in excess of 10 percent thereafter, is denied. FINDINGS OF FACT 1. Prior to December 11, 2020, the Veteran’s bilateral hearing loss had been manifested by hearing acuity of no worse than Level I impairment in both ears. 2. From December 11, 2020, the Veteran’s bilateral hearing loss has been manifested by hearing acuity of no worse than Level III impairment in the right ear and Level IV impairment in the left ear. CONCLUSION OF LAW The criteria for a compensable rating for bilateral hearing loss prior to December 11, 2020, and a rating in excess of 10 percent thereafter 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 (DC) 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Air Force from September 1959 to January 1980. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2017 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The claim dates back to the initial filing in March 2017. The Board remanded the matter in March 2019 for further development, and the agency of original jurisdiction (AOJ) completed the requested development In December 2020, the AOJ assigned an increased 10 percent rating for bilateral hearing loss, effective December 11, 2020. As higher ratings for the disability are available prior to and from this date, the appeal continues. See AB v. Brown, 6 Vet. App. 35 (1993) (where a claimant has filed a notice of disagreement as to an RO decision assigning a particular rating, a subsequent RO decision assigning a higher rating, but less than the maximum available benefit, does not abrogate the pending appeal). The AOJ also granted service connection for bladder, representing a full grant of the matter previously on appeal. 1. Entitlement to a compensable rating prior to December 11, 2020, for bilateral hearing loss and a rating in excess of 10 percent thereafter Disability ratings for service-connected hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations rendered from audiometric evaluations. 38 C.F.R. § 4.85; Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Evaluations of hearing loss are based on the organic impairment of hearing acuity as measured by controlled speech discrimination tests, in conjunction with the average hearing threshold as measured by puretone audiometric tests in the frequencies of 1000, 2000, 3000 and 4000 cycles per second. 38 C.F.R. § 4.85. Evaluations range from noncompensable to 100 percent. The Rating Schedule establishes 11 auditory acuity Levels designated from Level I for essentially normal hearing acuity through Level XI for profound deafness. The horizontal rows in Table VI (found in 38 C.F.R. § 4.85) represent nine categories of the percentage of discrimination based on the controlled speech discrimination test. The vertical columns in Table VI represent nine categories of decibel loss based on the puretone audiometry test. The numeric designation of impaired hearing (Levels I through XI) is determined for each ear by intersecting the horizontal row that corresponds with the percentage of discrimination and the vertical column corresponding to the puretone decibel loss. Where there is an exceptional pattern of hearing impairment, a rating based on puretone thresholds alone may be assigned (Table VIa). This alternative method for rating hearing loss disability may be applied if the puretone thresholds at 1000, 2000, 3000, and 4000 Hertz are all at 55 decibels or higher, or if the puretone threshold at 1000 Hertz is 30 or less and at 2000 Hertz is 70 or more. 38 C.F.R. § 4.86. Each ear is to be evaluated separately under this part of the regulations. The percentage evaluation is found in Table VII (in 38 C.F.R. § 4.85) by intersecting the horizontal row that corresponds with the numeric designation for the ear having the better hearing acuity with the vertical column corresponding with the numeric designation level for the ear having the poorer hearing acuity. See 38 C.F.R. § 4.85(e). The Court of Appeals for Veterans Claims (Court) has held that “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). In this case, staged ratings for the disabilities on appeal have already been assigned; therefore, the Board will discuss the propriety of the ratings assigned at each stage. As previously mentioned, the period on appeal dates back to the Veteran’s March 2017 claim for an increased rating for bilateral hearing loss. Prior to December 11, 2020 the Veteran’s bilateral hearing loss was manifested by no more than Level I hearing impairment in both ears. The Veteran underwent a VA audiological assessment in May 2017. This is the only hearing loss examination of record during the appeal period prior to December 11, 2020. Puretone thresholds were as follows: HERTZ 500 1000 2000 3000 4000 Right 20 15 45 60 65 Left 20 15 40 60 65 The puretone threshold average was 46.25 in the right ear and 45 in the left ear. Using the Maryland CNC speech recognition test, speech audiometry results revealed a speech recognition ability score of 96 percent for the right ear and 92 percent for the left ear. The Veteran was diagnosed with bilateral hearing loss, and he reported that the functional impact of his hearing loss was that he does not hear people speaking in a normal tone, and he has to ask people to repeat. Under Table VI of 38 C.F.R. § 4.85, the scores for both the right and left ears correlate to a Roman numeral I. A noncompensable rating is warranted under DC 6100 when these auditory acuity levels are entered into Table VII. For the period prior to December 11, 2020, the evidence preponderates against a finding of entitlement to a compensable rating under DC 6100. The Veteran characterized the functional impact of his hearing loss as difficulty hearing people speak in a normal tone and asking people to repeat themselves. This functional impairment and related difficulties are factors contemplated by the regulations and schedular rating criteria. See Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). Accordingly, a compensable rating is not warranted for the period prior to December 11, 2020. On December 11, 2020, VA examination, the Veteran underwent another audiological assessment. Puretone thresholds were as follows: HERTZ 500 1000 2000 3000 4000 Right 40 40 55 65 70 Left 40 40 50 70 70 The puretone threshold average was 58 for both ears. Using the Maryland CNC speech recognition test, speech audiometry results revealed a speech recognition ability score of 90 percent for the right ear and 80 percent for the left ear. With respect to functional impact, the Veteran reported that he has to asked people to repeat themselves, particularly if they talk low in conversation. Under Table VI of 38 C.F.R. § 4.85, the score correlates to a Roman numeral III for the right ear and a Roman numeral IV for the left ear. A rating of 10 percent is warranted under DC 6100 when these auditory acuity levels are entered into Table VII. For the period beginning December 11, 2020, the preponderance of the evidence demonstrates that the Veteran’s bilateral hearing loss does not meet the criteria for a rating in excess of 10 percent. The Veteran characterized the functional impact of his hearing loss as experiencing difficulty hearing conversations, especially with those who speak softly, and asking people to repeat themselves. These functional impairments and related difficulties are contemplated by VA regulations and schedular rating criteria. See Martinak, supra. Accordingly, a rating in excess of 10 percent for bilateral hearing loss for the period beginning December 11, 2020 is not warranted. The Board has considered the Veteran's statements regarding the severity of his hearing loss and how it impacted his ability to understand in conversation, and in no way discounts the difficulties that the Veteran experienced as a result of bilateral hearing loss; however, it must be reiterated that the assignment of disability ratings for hearing impairment is derived by a mechanical application of the rating schedule to the numeric designation assigned after audiometry results are obtained. Hence, the Board has no discretion in this matter and must predicate its determination on the basis of the results of the audiology studies of record. Lendenmann, supra. In other words, the Board is bound by law to apply VA's rating schedule based on the Veteran's audiometry results. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. To that end, the Veteran's assertions as to the severity of his bilateral hearing loss, though competent and credible, are less probative than the objective audiology studies of record, prepared by skilled professionals, in determining that his bilateral hearing loss does not meet the criteria for higher rating for either stage. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (2007). Accordingly, higher ratings for bilateral hearing loss for either stage are not warranted, nor is there basis for additional staged rating. In reaching the decision with regard to the appropriate disability rating, the Board has considered the benefit-of-the-doubt doctrine. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). Because the evidence preponderates against the claim for higher ratings for the Veteran's service-connected bilateral hearing loss, however, the benefit-of-the-doubt doctrine is inapplicable. See 38 U.S.C. § 5107 (b). G. E. Wilkerson Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Watkins, 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.