Citation Nr: 21022094 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 16-57 774 DATE: April 14, 2021 ORDER An increased rating in excess of 20 percent for bilateral hearing loss is denied. FINDING OF FACT Veteran’s bilateral hearing has been manifested by hearing acuity of no worse than Level V in the right ear and no worse than Level VI in the left ear. CONCLUSION OF LAW The criteria for a rating in excess of 20 percent for bilateral hearing loss are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1962 to August 1965. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2016 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). In September 2020, the Veteran testified before the undersigned Veterans’ Law Judge via videoconference. A transcript of the hearing has been associated with the claims file. At the hearing, the Veteran’s motion to advance his claim on the docket was granted pursuant to 38U.S.C. §7107(b)(3)(C) due to the Veteran’s advanced age. In November 2020, the Board remanded this matter for a new VA examination due to the Veteran’s testimony of worsening symptoms since his January 2016 VA examination. See BVA Decision received 11/05/2020 at page 6. Since a new, adequate examination was provided in February 2021, and the outstanding treatment records from Island Audiology were received, the Board finds that there has been substantial compliance with the remand 2020 Board directives and this issue is ready for adjudication. An increased rating in excess of 20 percent for bilateral hearing loss is denied. The Veteran contends that his rating for bilateral hearing loss now at 20 percent disabling should be increased to at least 40 percent given the functional impact on his relationship with his wife and friends. See Correspondence received 11/14/2016; see also NOD received 5/22/2016. In support of his claim, the Veteran also submitted numerous lay statements of the impact of his hearing loss in his daily life. 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). The January 2021 VA examiner stated that the files were reviewed along with an in-person examination. Although the January 2021VA examiner did not expressly note the Veteran’s lay statements, the reviewed files included the Veteran’s lay statements and buddy statements that describe the functional impact of his bilateral hearing loss. 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: January 29, 2021 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 30 45 85 95 63.75 68 % LEFT 35 35 85 90 61.25 72% Applying the results to Table VI, the findings yield a numeric designation of Level V in the right ear and Level VI in the left ear. Entering the resulting bilateral numeric designation of Level V for the right ear and Level VI for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a 20 percent disability rating under Diagnostic Code 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown.   Prior to the January 2021 VA examination, the Veteran received an examination in January 2016. At the January 2016 VA examination, the Veteran reported functional loss as needing people to repeat themselves to him. See C&P Exam received 1/27/2016 at page 10. The Veteran’s Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: January 26, 2016 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 40 50 80 95 66.25 72% LEFT 30 40 80 90 60.00 74% Applying the results to Table VI, the findings yield a numeric designation of Level VI in the right ear and Level V in the left ear. Entering the resulting bilateral numeric designation of Level VI for the right ear and Level V for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a 20 percent disability rating under Diagnostic Code 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. The Veteran’s private treatment records from Island Audiology were also reviewed. The Veteran had a hearing evaluation in October 2016, the other examinations were referred from VA and already included in this decision. The results of the October 2016 evaluation were as follows: October 28, 2016 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 35 55 80 90 65 88% LEFT 25 30 80 85 55 64% Applying the results to Table VI, the findings yield a numeric designation of Level III in the right ear and Level VI in the left ear. Entering the resulting bilateral numeric designation of Level III for the right ear and Level VI for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a 10 percent disability rating under Diagnostic Code 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. Based on the evidence above, a rating in excess of 20 percent for the Veteran’s bilateral hearing loss is not warranted. The Board finds that both VA examinations equate to the same disability percentage, 20 percent, and even considering his private treatment records which show a lesser percentage is warranted, a rating in excess of 20 percent is not warranted. Accordingly, the Board finds the preponderance of the evidence, to include two VA examinations and private treatment records, show a similar disability picture and weigh against the Veteran’s claim for a higher rating for his bilateral hearing loss. The Board expressly acknowledges its consideration of the lay evidence of record when adjudicating this claim, including the Veteran’s statement of functional loss and the buddy statements from T.F. and S.R.J. As expressed during the hearing, the Veteran can pursue a claim of secondary service connection for mental health conditions caused by his hearing loss that are not otherwise contemplated in the diagnostic code for hearing loss by filing the appropriate form. See Hearing Transcript received 9/28/2020 at page 6. That said, although the Veteran is competent to report difficulty with his hearing, 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. As such, 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 rating in excess of 20 percent 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, 53 (1990). Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Dixon, 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.