Citation Nr: 21013745 Decision Date: 03/10/21 Archive Date: 03/10/21 DOCKET NO. 14-41 297 DATE: March 10, 2021 ORDER Entitlement to an increased rating, currently rated as noncompensable, for bilateral hearing loss is denied. FINDING OF FACT The Veteran’s bilateral hearing loss is no worse than a level I hearing impairment in each ear, with no exceptional hearing pattern exhibited in either ear. CONCLUSION OF LAW The criteria for a compensable increased rating for bilateral hearing loss are not met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.321(b), 4.1, 4.2, 4.7, 4.10, 4.21, 4.85, 4.86, Diagnostic Code (DC) 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1997 to July 1998. This appeal comes before the Board of Veterans’ Appeals (Board) from an August 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO), in Winston-Salem, North Carolina. In April 2019, the Board remanded the appeal to the RO for further development. Increased Ratings Disability evaluations are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Rating Schedule. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the veteran’s condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where, as here, entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505, 510 (2007). 1. Entitlement to an increased rating, currently rated as noncompensable, for bilateral hearing loss. The Veteran contends that he is entitled to a higher rating because he has increasing difficulty with hearing and also with understanding others when he is not wearing his hearing aids. 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, DC 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). The assignment of a rating for hearing loss is achieved by a mechanical application of the rating schedule to the numeric designations assigned after audiometric valuations are rendered. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). However, in Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007), the United States Court of Appeals for Veterans Claims (Court) held that in addition to dictating objective test results in a VA audiology examination, a VA audiologist should describe the functional effects caused by a hearing disability in his or her final report. Private audiology reports may be used as evidence if all the required information is present, and Board attorneys can convert findings to numerical charts. Speech discrimination tests listed as CID W-22 (Central Institute of the Deaf) or NU-6 (Northwestern University Auditory Test Number Six) are not Maryland CNC for adjudication purposes. If the speech recognition scores are not Maryland CNC, then the audiometric evaluation is not adequate for rating purposes under § 4.85(a). However, if the examiner certifies that use of the speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc., or when there is an exceptional pattern of hearing loss under § 4.86, then the Hertz decibel readings can be applied to Table VIA. See generally 38 C.F.R. § 4.85(a) (if there is an exceptional pattern of hearing loss, the requirements of § 4.85(a) regarding examination adequacy for rating purposes still apply.). In an April 2012 VA examination, the treating audiologist noted pure tone thresholds, in decibels, were as follows: April 2012 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 35 35 35 40 36.25 100 LEFT 35 30 30 40 33.75 100 Applying the results to Table VI, the findings yield a numeric designation of Level I in the right ear and Level I in 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 zero percent, noncompensable disability rating under DC 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. In a July 2014 private audiology note, the treating audiologist noted pure tone thresholds, in decibels, were as follows: July 2014 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 35 35 45 60 43.75 NA LEFT 40 50 60 55 51.25 NA However, the data from the June 2014 private audiology examination cannot be considered because the private examiner did not use the Maryland CNC test. Rather, in a January 2020 correspondence, the audiologist’s office specifically noted that the audiologist used 3A and 4A of the W22 list. During a December 2015 VA examination, the Veteran’s Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: Dec. 2015 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 25 30 35 40 32.5 96 LEFT 25 30 35 40 32.5 98 Applying the results to Table VI, the findings yield a numeric designation of Level I in the right ear and Level I in 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 zero percent, noncompensable disability rating under DC 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. During a June 2018 VA examination, the Veteran’s Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: June 2018 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 45 45 55 60 51.25 60 LEFT 55 45 55 60 53.75 62 However, the Board finds that the June 2018 VA audiology examination also cannot be considered because the examiner noted inconsistencies in the Veteran’s responses during objective testing. Specifically, the examiner noted that SRT obtained was 70dBB significantly higher than volunteer PT responses. Volunteered PT responses were overall consistent with previous evaluation in 2015 by the Fayetteville VA. Findings would suggest that volunteered SRT responses were significantly superficially elevated and most likely not reflective of true organic hearing acuity. Today’s results were inconsistent. The obtained volunteered responses to PT stimuli when presented with inserts were significantly higher than SRT obtained at60-62dBB. Pt was re-instructed and transducers changed to supraural headphones, and volunteered responses varied from initial presentations. Pt responded well at 50d BHL with talk forward. PT testing discontinued in favor of objective test measures. While not overtly uncooperative, patient’s volunteered threshold information was not consistent or reliable. Based on the findings of the VA examiner, the Board affords this evidence with no probative value. In this respect, the examiner provided expert opinion that, based on multiple test techniques, that the Veteran’s test results were not reliable. There is no competent evidence of record indicating that this examiner’s conclusion is faulty. A September 2020 VA examination reveals that the Veteran reported difficulty hearing and understanding people when he is not wearing his hearing aids. 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: Sept. 2020 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 40 45 50 50 46.25 94 LEFT 45 45 55 60 51.25 94 Applying the results to Table VI, the findings yield a numeric designation of Level I in the right ear and Level I in 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 zero percent, noncompensable disability rating under DC 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. Based on the evidence above, a compensable rating for the Veteran’s bilateral hearing loss is not warranted. The Board expressly acknowledges its consideration of the lay evidence of record when adjudicating this claim, including the Veteran’s reported difficulty with hearing. The Veteran is competent to report difficulty with his 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 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). At no time during either appeal period has an exceptional hearing loss pattern been exhibited. Accordingly, the preponderance of the most probative evidence is against the claim of entitlement to a compensable rating for hearing loss. In reaching the conclusion above, 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). T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Michael J. O’Connor 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.