Citation Nr: 21040652 Decision Date: 07/06/21 Archive Date: 07/06/21 DOCKET NO. 18-09 711 DATE: July 6, 2021 ORDER An increased rating in excess of 10 percent for bilateral hearing loss is denied. FINDINGS OF FACT 1. At the September 2015 VA examination, the Veteran manifested hearing acuity of no worse than Level V in the right ear and Level III in the left ear. 2. At the December 2017 VA examination, the Veteran manifested hearing acuity of no worse than Level I in the right ear and Level VI in the left ear. 3. At the March 2021 VA examination, the Veteran manifested hearing acuity of no worse than Level II in the right ear and Level VI in the left ear. CONCLUSION OF LAW The criteria for a rating in excess of 10 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 FINDINGS AND CONCLUSION The Veteran served on active duty in the U.S. Marine Corps from December 1963 to December 1967. This appeal arises from an October 2015 rating decision, which partially increased the Veteran's hearing loss from 0 percent to 10 percent, effective November 10, 2014. The matter remains on appeal. AB v. Brown, 6 Vet. App. 35 (1993). In July 2019, the Board remanded the case to the agency of original jurisdiction (AOJ) for additional development and consideration. 1. An increased rating in excess of 10 percent for bilateral hearing loss In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Separate ratings can be assigned for separate periods based on the facts found - a practice known as "staged" ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). The relevant temporal focus for adjudicating an increased-rating claim is on the evidence concerning the state of the disability from one year before the claim was filed until VA makes a final decision on the claim. See 38 U.S.C. § 5110 (b)(2); 38 C.F.R. § 3.400 (o)(2). In this case, the Board reviews the evidence of record since July 2014, which is one year before the July 2015 increased rating claim was filed. The Veteran contends that the severity of his condition warrants a higher disability rating. The Veteran's service-connected bilateral hearing loss has been assigned a 10 percent rating from November 10, 2014 to the present, under 38 C.F.R. § 4.85, Diagnostic Code (DC) 6100, for hearing impairment. 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). At the September 2015 VA examination, the Veteran reported, "I can't understand conversations. I can't hold a job because I can't hear. I can't stay married because I can't hear. I can't understand TV. My hearing aids make everything louder but not clearer." 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: September 2015 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 25 45 75 75 55 72% LEFT 25 70 70 75 45 88% Applying the results to Table VI, the findings yield a numeric designation of Level V in the right ear and Level II in the left ear. Entering the resulting bilateral numeric designation of Level V for the right ear and Level II for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a 10 percent disability rating under Diagnostic Code 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 (b) was shown in the left ear. Applying the results to Table VIa in the left ear yields level II. Here, Table VI and Table VIa yield the same rating of II, which is then elevated to the next higher Roman numeral of III per applying § 4.86(b). Entering the resulting bilateral numeric designation of Level V for the right ear and Level III for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a 10 percent disability rating under Diagnostic Code 6100. At the December 2017 VA examination, the Veteran reported that others need to "talk louder" and often "repeat back" what they say, he has difficulty understanding speech accurately when in quiet settings as well as when in "loud background noise", and the TV needs to be set at higher volume levels. 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: December 2017 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 25 40 80 65 53 92% LEFT 20 75 80 75 63 88% Applying the results to Table VI, the findings yield a numeric designation of Level I in the right ear and Level III in the left ear. Entering the resulting bilateral numeric designation of Level I for the right ear and Level III for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a 0 percent disability rating under Diagnostic Code 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 (b) was shown in the left ear. Applying the results to Table VIa in the left ear yields level V. Here, Table VIa yields the higher rating (over Table VI) of V, which is then elevated to the next higher Roman numeral of VI per applying § 4.86(b). Entering the resulting bilateral numeric designation of Level I for the right ear and Level VI for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a 0 percent disability rating under Diagnostic Code 6100. At the March 2021 VA examination, the Veteran reported Veteran reports difficulty hearing in all situations, including on the phone, watching television and while attending church. 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: March 2021 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 20 30 75 70 49 86% LEFT 30 70 80 80 65 82% 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 0 percent disability rating under Diagnostic Code 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 (b) was shown in the left ear. Applying the results to Table VIa in the left ear yields level V. Here, Table VIa yields the higher rating (over Table VI) of V, which is then elevated to the next higher Roman numeral of VI per applying § 4.86(b). Entering the resulting bilateral numeric designation of Level II for the right ear and Level VI for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a 10 percent disability rating under Diagnostic Code 6100. There are no other audiometric evaluations to support his claim, including on review of the Veteran's VA treatment records. The Board expressly acknowledges its consideration of the lay evidence of record when adjudicating this claim, including the Veteran's difficulty with communication, such as at church and on the phone, difficulty conversing with his wife, and having to increase the volume for the TV. 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 probative evidence is against the claim of entitlement to a rating in excess of 10 percent. 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). The appeal is denied. C. CRAWFORD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Chatterjee, Biswajit 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.