Citation Nr: 21023867 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 17-50 164 DATE: April 21, 2021 ORDER Entitlement to a compensable rating prior to February 16, 2021 and in excess of 10 percent thereafter for bilateral hearing loss is denied. FINDINGS OF FACT 1. The Veteran demonstrated, at worst, Level IV hearing in the right ear and Level II in the left ear for the period prior to February 16, 2021. 2. The Veteran demonstrated, at worst, Level III hearing in the right ear and Level V in the left ear for the period from February 16, 2021. CONCLUSION OF LAW The criteria for entitlement to a compensable rating prior to February 16, 2021 and in excess of 10 percent thereafter for hearing loss have not been met. 38 U.S.C. §§ 1151, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.21, 4.85, Diagnostic Code 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active duty in the Navy from January 1962 to May 1966. The issue is on appeal from a July 2016 rating decision. In November 2020, the Veteran testified before the undersigned. A copy of the hearing transcript has been associated with the record. Subsequently, the claim was remanded by the Board of Veterans’ Appeals (Board) in December 2020. The regional office (RO) granted an increased rating of 10 percent, effective February 16, 2021, in a March 2021 rating decision. The Veteran is assumed to be seeking the highest evaluation available for any period in which he had less than a 100 percent rating. See AB v. Brown, 6 Vet. App. 35, 39 (1993). Accordingly, the issue remains on appeal. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran’s disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as “staged” ratings. See Fenderson v. West, 12 Vet. App. 119 (1999). Entitlement to a compensable rating prior to February 16, 2021 and in excess of 10 percent thereafter for bilateral hearing loss. The Veteran contends that his bilateral hearing loss is worse than the disability ratings assigned. For the entire appeal period, the Board expressly acknowledges its consideration of the lay evidence of record when adjudicating this claim, including decreased hearing loss. 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). 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). Period prior to February 16, 2021 For the period prior to February 16, 2021, the Veteran is rated as noncompensable or 0 percent. Initially, the Board acknowledges that the Veteran submitted two private audiology evaluations from April 2012 and May 2014. However, because the speech discrimination scores were based on CID-W22 and not the Maryland CNC word list, these reports are inadequate for rating purposes under § 4.85(a). The private audiologist also did not certify that use of the speech discrimination test was not appropriate nor were there an exceptional pattern of hearing lost found in either private evaluation. Therefore, the Board does not find the private April 2012 and May 2014 audiology evaluations are probative for adjudication purposes. A May 2016 VA examination reveals that the Veteran reported difficulty hearing background noise and problem localizing sounds. 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: May 21, 2016 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 20 60 70 80 58 90 LEFT 15 60 65 75 54 88 Applying the results to Table VI, the findings yield a numeric designation of Level III in the right ear and Level II in the left ear. Entering the resulting bilateral numeric designation of Level III in the right ear and Level II in the left ear to 38 C.F.R. § 4.85, Table VII, equates to a noncompensable rating under Diagnostic Code 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. The Veteran was afforded another VA examination in July 2017 where he complained of difficulty communicating in adverse listening situations such as in the presence of background noise or when the speaker is at a distance. Additionally, he reported being bothered by loud sounds, feeling pain due to loud sounds, and avoiding of family gatherings and events such as weddings because the background noise limited his ability to participate in conversations. 38 C.F.R. § 4.10; Martinak, 21 Vet. App. at 447. The Veteran’s Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: July 24, 2017 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 25 65 75 90 64 78 LEFT 20 55 60 65 50 84 Applying the results to Table VI, the findings yield a numeric designation of Level IV in the right ear and Level II in the left ear. Entering the resulting bilateral numeric designation of Level IV in the right ear and Level II in the left ear to 38 C.F.R. § 4.85, Table VII, equates to a noncompensable 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 compensable rating for the period prior to February 16, 2021 for the Veteran’s bilateral hearing loss is not warranted. 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). Accordingly, the preponderance of the most probative evidence is against the claim of entitlement to a compensable rating for the period on appeal 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). Period from February 16, 2021 For the period from February 16, 2021, the Veteran’s hearing loss is rated at 10 percent disabling. The Veteran was afforded a VA examination in February 2021 where he reported that he is concerned for his safety as he cannot hear the carbon dioxide detector, phone, or doorbell; nor can he understand people unless they are standing directly in front of him to read their lips. 38 C.F.R. § 4.10; Martinak, supra. The Veteran’s Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: February 16, 2021 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 25 65 75 80 62.5 88 LEFT 30 60 60 70 55 80 Applying the results to Table VI, the findings yield a numeric designation of Level III in the right ear and Level V in the left ear. Entering the resulting bilateral numeric designation of Level III in the right ear and Level V in the left ear to 38 C.F.R. § 4.85, Table VII, equates to a 10 percent 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 10 percent for the period from February 16, 2021 for the Veteran’s bilateral hearing loss is not warranted. Again, 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, 28 Vet. App. at 366. The Veteran’s main complaint is safety and the inability to hear people due to reduced hearing acuity and clarity, which is what is contemplated in the rating assigned. See Rossy, 29 Vet. App. at 145. Accordingly, the preponderance of the most probative evidence is against the claim of entitlement to a rating in excess of 10 percent for the period on appeal 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, 1 Vet. App. at 49. L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Lee 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.