Citation Nr: 21040105 Decision Date: 07/02/21 Archive Date: 07/02/21 DOCKET NO. 16-60 730 DATE: July 2, 2021 ORDER Entitlement to a compensable disability rating for bilateral hearing loss prior to January 24, 2015 is denied; however, a 100 percent rating from January 24, 2015 is granted. FINDINGS OF FACT 1. Prior to January 24, 2015, the Veteran's bilateral hearing loss was manifested by hearing acuity of no worse than Level II in the right ear and no worse than Level III in the left ear. 2. From January 24, 2015, it is factually ascertainable that the Veteran's bilateral hearing loss is manifested by hearing acuity of Level XI in the right ear and Level XI in the left ear. CONCLUSIONS OF LAW 1. Prior to January 24, 2015, the criteria for a compensable rating 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. 2. From January 24, 2015, the criteria for a 100 percent rating for bilateral hearing loss have 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 had active duty from August 1964 to May 1968. This matter is on appeal from a September 2014 rating decision. In a March 2018 rating decision, the regional office (RO) granted a 100 percent disability rating for bilateral hearing loss, effective May 15, 2017. As such, the only period on appeal is for prior to that full grant. The Board notes that in a February 2021 correspondence, the Veteran withdrew his request for a Board hearing. 1. Prior to May 15, 2017, entitlement to a compensable disability rating for bilateral hearing loss. The Veteran contends that he is entitled to a higher rating because he cannot hear people behind him, has to turn up the television volume, and his grandchildren get upset due to his repeatedly asking them what they said, per his January 2015 notice of disagreement. 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). VA medical records generally document complaints of, or treatment for, hearing loss, but did not provide sufficient evidence for rating purposes. For example, a January 2015 VA medical record noted that the Veteran complained about his hearing aids and the provider cleaned the aids performed other maintenance. The Veteran was pleased with the sound/feel of his hearing aids. Per the August 2014 VA examination, the Veteran's audiometry test results equated to Level II hearing of the right ear and Level III hearing for the left ear using Table VI. 38 C.F.R. § 4.85. Applying the percentage ratings for hearing impairment found in Table VII, such findings result in a noncompensable disability rating. 38 C.F.R. § 4.85. The Veteran reported difficulty understanding children's voices, having to ask people to repeat themselves, difficulty with understanding, and needing to listen to the television and radio at higher volumes. The Board notes that the August 2014 VA examination did not reflect certification of language difficulties, inconsistent speech audiometry scores, or pure tone threshold findings of 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz, or pure tone thresholds of 55 decibels or more from 1000 to 4000 Hertz as to warrant consideration as an exceptional pattern of hearing impairment. 38 C.F.R. § 4.86. In a January 24, 2015 lay statement, the Veteran's spouse indicated that the Veteran's hearing had worsened, and he could not hear people not in front of him and he needed the volume of the television to be at an uncomfortable level for others. The Veteran subsequently received a new VA examination on May 15, 2017. The Veteran's audiometry test results equated to Level XI hearing of the right ear and Level XI hearing for the left ear using Table VI. 38 C.F.R. § 4.85. Applying the percentage ratings for hearing impairment found in Table VII, such findings result in a 100 percent disability rating. 38 C.F.R. § 4.85. The Veteran subsequently received a 100 percent disability rating, effective May 15, 2017 (the date of the VA examination). Given January 24, 2015 lay statement was the first report of the significant worsening of the Veteran's hearing acuity (during the current appeal period), and following the August 2014 VA examination, the Board will give the Veteran the benefit of the doubt as to his hearing having worsened since that date. There is no evidence prior to that date, however, indicating that the Veteran hearing had worsened since the August 2014 VA examination, which was indicative of a noncompensable disability rating. The Board expressly acknowledges its consideration of the lay evidence of record when adjudicating this claim, including lay evidence noted above. 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 effectively 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 prior to January 24, 2015. As previously indicated, the August 2014 VA examination findings were consistent with a noncompensable disability rating. 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 prior to January 24, 2015. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). As such, prior to January 24, 2015 the Board finds that a compensable disability rating is not warranted. From January 24, 2015; however, a disability rating of 100 percent is granted. H.M. WALKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Lindio 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.