Citation Nr: 21024560 Decision Date: 04/23/21 Archive Date: 04/23/21 DOCKET NO. 17-55 100 DATE: April 23, 2021 ORDER Entitlement to a disability rating in excess of 20 percent for bilateral hearing loss is denied. FINDING OF FACT The Veteran’s bilateral hearing has been manifested by hearing acuity of no worse than Level III in the right ear and no worse than Level VII in the left ear. CONCLUSION OF LAW The criteria for a disability rating in excess of 20 percent for bilateral hearing loss 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 January 1966 to January 1970. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2017 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO), which denied the Veteran service connection for right ear hearing loss and denied a compensable rating for his service-connected left ear hearing loss. A July 2020 rating decision granted service connection for right ear hearing loss and assigned a 20 percent rating for bilateral hearing loss for the entire appeal period. In September 2018, the Board remanded the Veteran’s claims to the Agency of Original Jurisdiction (AOJ) for further action consistent with the Board’s remand directives. Specifically, the Board remanded the claims to obtain an adequate opinion as to the Veteran’s right ear hearing loss, associate updated VA treatment records, and reevaluate the left ear hearing loss after adjudication of the right ear hearing loss claim. The claim is back before the Board for further appellate proceedings. The Board finds there has been substantial compliance with its remand directives, and the claims are ripe for adjudication. See Stegall v. West, 11 Vet. App. 268, 271 (1998). As noted above, the Veteran has since been service connected for right ear hearing loss and, thus, the increased rating claim has been restyled to bilateral hearing loss to reflect the rating criteria. Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. When considering the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection is required. See Fenderson v. West, 12 Vet. App. 199, 125-26 (1999). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Veteran contends that his hearing loss is worse than his disability rating indicates. See October 2016 VA 21-526. 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 puretone 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 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 puretone 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 puretone 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). VA examinations reveal that the Veteran reported the hearing loss creates difficulty in hearing conversations, to include where a person is a room over, where more than one person is speaking simultaneously, and in nosier environments. The Veteran’s Maryland CNC Word List speech recognition score and puretone thresholds, in decibels, were as follows: January 2017 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 30 50 75 75 58 90 LEFT 30 75 80 85 68 74 See January 2017 VA examination report. August 2017 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 20 45 75 70 53 90 LEFT 20 65 70 80 59 86 See August 2017 VA examination report. November 2019 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 25 60 75 80 60 88 LEFT 30 70 80 85 66.25 72 See November 2019 VA examination report. When applying the method for evaluating hearing loss to the results of the Veteran’s VA examinations, the audiometric evaluation at worst reveals Level III hearing acuity in the right ear, based on application of the reported findings to Table VI. An exceptional pattern of hearing exists for the Veteran’s left ear in accordance with 38 C.F.R. § 4.86(b). As puretone thresholds at each of the four specified frequencies were not 55 decibels or more in either ear, § 4.86(a) is not for application. In the January 2017 and November 2019 VA examinations, the Veteran’s left ear presented with 30 decibels at the 1000 Hertz threshold and at least 70 decibels at the 2000 Hertz threshold. The Veteran’s right ear did not present with similar findings. Thus, the application of § 4.86(b) is warranted for the left ear and not the right. The Veteran’s left ear, at worst, presented with a puretone threshold average of 68 decibels and a speech discrimination of 72 percent. Table VI and Table VIA each reveal a Level VI hearing acuity in the left ear. Applying § 4.86(b), the Veteran’s hearing acuity is elevated to the next higher numeral, or Level VII. Application of these findings to Table VII corresponds to a 20 percent rating under § 4.85, Diagnostic Code 6100. The Board expressly acknowledges its consideration of the lay evidence of record when adjudicating this claim, including the Veteran’s difficulty hearing 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). (Continued on the next page)   Accordingly, the preponderance of the most probative evidence is against the claim of entitlement to a disability 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 (1990). DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Strickland 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.