Citation Nr: 21022991 Decision Date: 04/19/21 Archive Date: 04/19/21 DOCKET NO. 15-18 971 DATE: April 19, 2021 ORDER Entitlement to an increased evaluation for a bilateral hearing loss disability, currently rated as 10 percent disabling, is denied. FINDING OF FACT The Veteran had hearing acuity of level V in his right ear and IV his left ear. CONCLUSION OF LAW The criteria for rating higher than 10 percent for the Veteran's service-connected bilateral hearing loss disability have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.10, 4.85, 4.86, DC 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1964 to July 1968. This case comes to the Board from a September 2014 decision of the Agency of Original Jurisdiction (AOJ). In July 2018, the Veteran testified before the undersigned at a videoconference hearing. A transcript of that hearing is of record. The Board remanded this appeal for further development in March 2019. Disability evaluations are determined by evaluating the extent to which the claimant’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. The method for rating a hearing loss disability depends in part on the results of the Maryland CNC speech recognition test, and in part on the results of the pure tone audiometric test at 1000, 2000, 3000 and 4000 Hertz. 38 C.F.R. § 4.85 describes the sequence of steps that a VA adjudicator must use to apply the rating criteria for hearing loss disability. For the pure tone audiometric test, an average pure tone threshold is obtained by dividing the sum of these thresholds by four. After the average pure tone threshold is determined, Table VI of 38 C.F.R. § 4.85 is normally used to assign a Roman numeral hearing impairment designation based on a combination of the percent of speech discrimination and pure tone threshold average. After a Roman numeral hearing impairment designation has been assigned to each ear, Table VII of § 4.85 is used to assign the disability rating for bilateral hearing loss by combining the Roman numeral hearing impairment designations for both ears. Id. To help decide the claim, the AOJ arranged a VA hearing loss examination in April 2014. According to the examiner’s report, the Veteran's pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 45 50 65 75 70 LEFT 35 45 65 70 70 Maryland CNC speech discrimination results were 72 percent in the right ear and 80 percent in the left ear. Using Table VI, the April 2014 results yield numeric hearing impairment designations of level V in the right ear and level IV in the left ear. Combining these designations using table VII of § 4.85 results in a 10 percent disability rating. Because the examiner obtained information from the Veteran concerning the functional effects of his hearing loss disability, the examiner complied with 38 C.F.R. §§ 4.1, 4.2, and 4.10. See Martinak v. Nicholson, 21 Vet. App. 447 (2007). According to the report, the Veteran told the examiner that he experienced difficulty hearing co-workers and that he frequently asks other people to repeat themselves when speaking. During his hearing testimony, the Veteran said that he believed that his hearing loss had worsened since the April 2014 examination. For this reason, the Board remanded this case for a new examination. Unfortunately, it appears that the Veteran failed to cooperate with the AOJ’s attempt to schedule the proposed examination and it never took place. Between December 2020 and February 2021, employees of the AOJ prepared at least six reports, which either summarized a telephone conversation between the author and the Veteran or else reported a the Veteran did not answer his telephone and that the employee left a recorded message asking him to call back. In January 2021, an employee reported that, “As soon as I identified myself the Veteran hung the phone up. I immediately called back and left another message for the Veteran to return my call.” Approximately one week later, an employee reported that the Veteran answered the call and agreed to attend a proposed audiology examination and the employee informed him that a local VA Medical Center would contact him about arranging the precise date and time. The AOJ mailed a letter to the Veteran’s last known address seeking to confirm these arrangements. But in February 2021, an AOJ employee reported that, according to the Veterans Health Administration (VHA), the Veteran failed to respond to their attempts to schedule the examination. According to the employee, “I attempted to contact [the] Veteran to find out what happened. [He] answered the phone and when I identified myself he hung the phone up. I immediately called his number back and received voice mail. I left a message for the Veteran as I have in previous calls with no response.” From these reports, it is clear that the Veteran was aware that the AOJ and VHA were attempting to schedule the requested audiology examination and that he failed to cooperate with their efforts. Having provided notice and an opportunity for him to attend the requested examination, VA has done all it can reasonably do to satisfy its duty to assist in this case. See Dusek v. Derwinski, 2 Vet. App. 519, 522 (1992) (“[the] duty to assist is not always a one-way street. If a Veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence”). Accordingly, the Board must decide this case based on the available evidence. The Board has reviewed the hearing transcript, the notice of disagreement and his substantive appeal (VA Form 9). Although these documents indicate the Veteran’s desire to receive increased compensation for his hearing loss disability, they do not indicate that his auditory thresholds, in decibels, or his Maryland CNC scores have ever approached the levels required for a disability rating higher than 10 percent under 38 C.F.R. § 4.85. Thus, with respect to the Veteran’s hearing acuity at the relevant time, the most reliable and persuasive piece of evidence is the April 2014 examination report. That report indicates that, under the relevant regulatory criteria, a rating of 10 percent, but no higher, is the appropriate degree of compensation for the Veteran’s hearing loss. The Veteran has the burden of proving, at least to an equipoise standard, all of the requirements of a claim for an increased rating. See 38 U.S.C. § 5107(a); Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). There is no evidence that his hearing loss disability has ever met the criteria for a rating higher than 10 percent. Because the   preponderance of the evidence weighs against the claim, the benefit-of-the-doubt doctrine does not apply, see 38 U.S.C. § 5107(b), and the claim must be denied. DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Nye, 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.