Citation Nr: 21029954 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 16-31 107 DATE: May 17, 2021 ORDER Entitlement to an initial rating in excess of 10 percent for hearing loss during the period prior to January 15, 2013, is denied. FINDING OF FACT For the period prior to January 15, 2013, the Veteran's bilateral hearing loss has been manifested by hearing acuity of no worse than level II in the right ear and no worse than level X in the left ear. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for the period prior to January 15, 2013, for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.383, 3.385, 4.1, 4.3, 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1970 to January 1976. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a November 2012 rating decision by the Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran presented testimony at a Board hearing in March 2020. A transcript of the hearing is associated with the Veteran's claims folder. This case was previously before the Board in November 2020, on which occasion the claim was remanded. In the Board's November 2020 decision, a claim for entitlement to an increased rating for bilateral hearing loss for the period beginning January 15, 2013, was also remanded. In a February 2021 rating decision, the RO granted a 100 percent evaluation for bilateral hearing loss effective January 15, 2013. This constitutes a full grant of benefits sought for the period beginning January 15, 2013. Therefore, the Board will only consider the Veteran's rating for the period prior to January 15, 2013. Entitlement to an initial rating in excess of 10 percent for hearing loss during the period prior to January 15, 2013. Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § Part 4. Disability ratings for hearing loss range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests (Maryland CNC) combined with the average hearing threshold levels as measured by Puretone audiometry tests in the frequencies 1000, 2000, 3000, and 4000 Hertz. 38 C.F.R. § 4.85, Diagnostic Code 6100. To evaluate the degree of disability for service-connected hearing loss, the Rating Schedule contains eleven auditory acuity levels, designated from Level I through Level XI. 38 C.F.R. § 4.85(h), Tables VI, VIa. The results of the Puretone audiometry tests and speech discrimination tests are charted on Table VI, or on Table VIa for exceptional cases described in 38 C.F.R. § 4.86. Table VII prescribes the disability rating based on the relationship between the values for each ear derived from Table VI. See 38 C.F.R. § 4.85. The evaluations derived from the Rating Schedule are intended to make proper allowance for improvement by hearing aids. The rating criteria also provides for rating exceptional patterns of hearing impairment when the Puretone threshold at each of the four specified frequencies of 1000, 2000, 3000, and 4000 Hertz are 55 decibels or more, or when the Puretone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz. 38 C.F.R. § 4.86. In such cases, each ear is evaluated separately, and the Roman numeral designation for the ear with an exceptional pattern of hearing impairment is derived from Table VI or VIA, whichever results in the higher numeral. Id. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. In the present case, the Veteran is service connected for bilateral hearing loss and has been assigned a 10 percent rating for the period prior to January 15, 2013. Upon review of the record, the Board finds that a rating in excess of 10 percent is not warranted for the period prior to January 15, 2013. In this regard, the Veteran was afforded a VA audiology examination in October 2012. (10/22/2012, C&P Exam, p. 3). His speech discrimination scores using the Maryland CNC test were 84 percent in the right ear and 38 percent in the left ear. His reported Puretone thresholds in decibels were: HERTZ 1000 2000 3000 4000 AVERAGE RIGHT 10 45 65 75 48.75 LEFT 20 85 95 105 76.25 Based on the October 2012 examination, the Board finds that the Veteran's bilateral hearing loss disability most nearly approximates level II in the right ear and level X in the left ear. Those results fall within the schedular criteria for a 10 percent rating. In rendering this decision, the Board has applied the exceptional patterns of hearing impairment provisions of 38 C.F.R. § 4.86(b) to the Veteran's left ear hearing impairment. The Board determined that the Veteran's left ear hearing impairment Roman numeral designation from Table VI would be IX and under Table VIa would be VII. 38 C.F.R. § 4.86(b) dictates that the higher of the two Roman numeral designations, which in the present case is IX, will be elevated to the next higher Roman numeral, X, and used to determine the Veteran's percentage evaluation. The Board determined that the Veteran's hearing impairment in the right ear does not demonstrate exceptional patterns of hearing impairment in accordance with 38 C.F.R. § 4.86(a), as his Puretone threshold at 1000 and 2000 Hertz was less than 55 decibels. Likewise, 38 C.F.R. § 4.86(b) does not apply, as his Puretone threshold at 2000 and 3000 Hertz was less than 70 decibels. The Board acknowledges its consideration of the lay evidence of record when adjudicating this claim. While 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). In sum, the Board finds that the totality of the evidence demonstrates that the disability picture for the Veteran's bilateral hearing loss warrants a 10 percent rating for the period prior to January 15, 2013. In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107 (b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Glenn, 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.