Citation Nr: 21014617 Decision Date: 03/15/21 Archive Date: 03/15/21 DOCKET NO. 17-46 900 DATE: March 15, 2021 ORDER Entitlement to a compensable rating for bilateral hearing loss prior to November 25, 2019 is denied. Entitlement to an evaluation in excess of 10 percent for bilateral hearing loss from November 25, 2019 is denied. FINDINGS OF FACT 1. Prior to November 25, 2019, the Veteran’s bilateral hearing loss was manifested by no worse than Level II hearing impairment in the right ear and Level IV in the left ear. 2. From November 25, 2019, the Veteran’s bilateral hearing loss was manifested by no worse than Level IV hearing impairment in the right ear and Level III in the left ear. CONCLUSIONS OF LAW 1. The criteria for entitlement for a compensable disability for bilateral hearing loss prior to November 25, 2019 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.85 2. The criteria for an evaluation in excess of 10 percent for bilateral hearing loss from November 25, 2019 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85, 4.86 REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from January 1966 to May 1969. For his meritorious service, the Veteran was awarded (among other decorations) the Vietnam Service Medal. This matter comes before the Board of Veteran’s Appeals (Board) on appeal from a June 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a Travel Board hearing in November 2018. A transcript of that hearing has been added to the Veteran’s file. The appeal was previously before the Board in July 2019. The matter was remanded for additional development. While on remand, in an August 2020 rating decision, the RO increased the Veteran’s rating for bilateral hearing loss to 10 percent, effective November 25, 2019. As this is not a full grant of the benefit sought on appeal, the claim remains on appeal. The July 2019 remand directed that the Veteran be scheduled for a new VA examination to determine the current severity of his bilateral hearing loss. As such an examination was performed (and indeed formed the basis for the Veteran’s increased rating), the Board finds substantial compliance with its remand instructions. Increased Rating Disability ratings are determined by the applications of the VA’s Schedule for Rating Disabilities. 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Staged ratings are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct time periods during the course of the appeal. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). With hearing loss disabilities, evaluations range from noncompensable to 100 percent based on 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 1,000, 2,000, 3,000 and 4,000 cycles per second. The rating schedule establishes 11 auditory acuity levels designated from Level I, for essentially normal hearing acuity, through Level XI for profound deafness. VA audiometric examinations are conducted using a controlled speech discrimination test (Maryland CNC) together with the results of a puretone audiometry test. In 38 C.F.R. § 4.85, the vertical lines of Table VI represent nine categories of the percentage of discrimination based on the controlled speech discrimination test. The horizontal columns of Table VI represent nine categories of decibel (dB) 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 vertical row appropriate for the percentage of discrimination and the horizontal column appropriate to the puretone decibel loss. The percentage disability evaluation is then found from Table VII of 38 C.F.R. § 4.85, by intersecting the vertical column appropriate for the numeric designation for the ear having the better hearing acuity and the horizontal row appropriate to the numeric designation level for the ear having the poorer hearing acuity. Further, the provisions of 38 C.F.R. § 4.86 address exceptional patterns of hearing impairment. When the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz (Hz)) is 55 dB or more, 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. 38 C.F.R. § 4.86(a). Each ear will be evaluated separately. Further, when the puretone threshold is 30 decibels or less at 1,000 Hz and 70 dB or more at 2,000 Hz, 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. 38 C.F.R. § 4.86(b). That numeral will then be elevated to the next higher Roman numeral. 1. Entitlement to a compensable rating for bilateral hearing loss prior to November 25, 2019 is denied. The Veteran seeks a compensable evaluation for his service connected bilateral hearing loss, which was rated as noncompensable from August 12, 2009. The Veteran submitted a private hearing test from a private physician in April 2014. The private hearing test did not show speech discrimination testing was used using Maryland CNC. The testing provided the following results: HERTZ   1000 2000 3000 4000 Avg CNC RIGHT 10 20 50 60 35 Not Reported LEFT 15 25 50 60 38 Not Reported While the private hearing test is not able to be used for rating purposes, it did provide information sufficient evidence to establish the Veteran had hearing loss. The private opinion related the Veteran had hearing loss and concluded it was due to his exposure to aircraft engines and noise in-service. However, the private hearing test does not provide sufficient evidence to properly evaluate the Veteran’s hearing loss without the Maryland CNC speech discrimination results. The Veteran underwent a VA examination in July 2017. The results are provided below: HERTZ   1000 2000 3000 4000 Avg CNC RIGHT 30 40 65 65 50 84% LEFT 35 45 60 65 51.25 78% The Veteran’s average puretone decibel loss in the right ear was 50 and 51.25 in his left ear. Speech discrimination was 84% in the right ear and 78% in the left ear. The Veteran does not exhibit an exceptional pattern of hearing loss as contemplated by 38 C.F.R. § 4.86(a) in either ear. Applying 38 C.F.R. § 4.85, Table VI, to the audiological findings, the Veteran’s right ear is assigned the numeric designation of II and the left ear is assigned a numeric designation of IV. Application of 38 C.F.R. § 4.85, Table VII results in a finding of a noncompensable rating. The Veteran’s VA treatment records reflect the Veteran did not have complaints regarding his hearing loss. They also reported normal hearing acuity. The Veteran’s private treatment records also report the Veteran denied hearing loss. The Veteran is competent, as a layperson, to report on that as to which he has personal knowledge, such as difficulty hearing. 38 C.F.R. § 3.159 (a)(2); Jandreau v. Nicholson, 492 F.3d 1372, 1377. Nevertheless, as a layperson, without the appropriate medical training and expertise, he is not competent to provide a probative opinion on a medical matter, especially the severity of his 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 puretone audiometry testing. Applying the facts in this case based on the criteria set forth above, the Board finds that the preponderance of the evidence is against the assignment of a compensable rating for bilateral hearing loss prior to November 25, 2019. The benefit-of-the-doubt rule is not applicable, and the claim for entitlement to a compensable disability rating for bilateral hearing loss for the period prior to November 25, 2019 is denied. 2. Entitlement to an evaluation in excess of 10 percent for bilateral hearing loss from November 25, 2019 is denied. As noted above, the RO granted a staged rating for the Veteran’s bilateral hearing loss beginning November 25, 2019. For the reasons that follow, the Board finds that the Veteran has not met the criteria for an increased rating in excess of 10 percent. The Veteran underwent another audiological VA examination in November 2019. The results from that examination follow: HERTZ CNC 1000 2000 3000 4000 Avg % RIGHT 40 40 60 65 51.25 76% LEFT 30 40 60 65 48.75 80% The Veteran’s results from this examination reflected an average puretone decibel loss in the right ear at 51.25 and 48.75 (rounded up to 49) in his left ear. Speech discrimination was 76 percent in his right ear and 80 percent in his left ear. The Veteran does not exhibit an exceptional pattern of hearing loss as contemplated by 38 C.F.R. § 4.86(a) in either ear. As such, the Veteran’s bilateral hearing loss is properly rated under Table VI, which corresponds with Level IV hearing impairment for the right ear and Level III hearing impairment for the left ear. Intersecting Levels IV and III under Table VII results in a 10 percent disability rating, which corresponds with the disability rating currently assigned by the RO. The Board has considered the Veteran’s testimony at his November 2018 hearing regarding the severity of his hearing loss. He reported his hearing loss had worsened and he reported he asks others to repeat themselves so he can hear them. In his Notice of Disagreement, the Veteran requested a 50% disability rating for bilateral hearing loss. However, the assignment of disability ratings for hearing impairment is derived from a mechanical formula. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). In the Veteran’s case, the mechanical application does not yield a rating greater than 10 percent for the Veteran’s level of hearing loss after November 25, 2019. Thus, the appeal seeking a rating greater than 10 percent for bilateral hearing loss is hereby denied. Of final note, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board’s consideration. Evan M. Deichert Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Mouzakis, 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.