Citation Nr: 21024391 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 20-09 954 DATE: April 22, 2021 ORDER A rating in excess of 20 percent for bilateral hearing loss disability, from November 7, 2018, is denied. FINDING OF FACT From November 7, 2018, the Veteran’s bilateral hearing has been manifested by hearing acuity of no worse than Level IV 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 disability, from November 7, 2018, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1956 to November 1959. This appeal comes before the Board on appeal from a November 2018 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In October 2020, the Board remanded the claim for further development. The Board finds that there has been substantial compliance with its prior remand. See Stegall v. West, 11 Vet. App. 268 (1998). This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.800(c). 38 U.S.C. § 7107(b). Entitlement to a rating in excess of 20 percent for bilateral hearing loss disability, from November 7, 2018. The Veteran, and his representative, contends that, from November 7, 2018, a higher rating is warranted for his bilateral hearing loss disability. See NOD (April 2019). The Board concludes that the criteria for a rating in excess of 20 percent for bilateral hearing loss disability, from November 7, 2018, have not been met. From November 7, 2018, the Veteran’s bilateral hearing has been manifested by hearing acuity of no worse than Level IV in the right ear and no worse than Level VI in the left ear. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100. 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). A November 2018 VA examination report reveals that the Veteran reported difficulty hearing conversations without visual cues and frequently misunderstanding conversations. 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: November 2018 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 40 70 70 75 64 92% LEFT 40 80 75 95 73 76% Applying the results to Table VI, the findings yield a numeric designation of Level II in the right ear and Level IV in the left ear. Entering the resulting bilateral numeric designation of Level II for the right ear and Level IV for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a noncompensable disability rating under Diagnostic Code 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. A February 2021 VA examination report reveals that the Veteran reported, similar to past examinations, having hearing loss. 38 C.F.R. § 4.10; Martinak, 21 Vet. App. 447. The Veteran’s Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: February 2021 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 50 70 80 75 69 80% LEFT 45 80 75 90 73 74% Applying the results to Table VI, the findings yield a numeric designation of Level IV in the right ear and Level VI in the left ear. Entering the resulting bilateral numeric designation of Level IV 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. Based on the evidence above, a rating in excess of 20 percent for the Veteran’s bilateral hearing loss disability is not warranted. The Board expressly acknowledges its consideration of the lay evidence of record when adjudicating this claim, including reports related to difficulty hearing conversations and frequently misunderstanding conversations. 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). Accordingly, the preponderance of the most probative evidence is against the claim of entitlement to a rating in excess of 20 percent for bilateral hearing loss disability. 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). C.A. SKOW Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Griffey, 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.