Citation Nr: 21041279 Decision Date: 07/08/21 Archive Date: 07/08/21 DOCKET NO. 14-02 065 DATE: July 8, 2021 ORDER 1. Entitlement to a 10 percent disability rating for bilateral hearing loss prior to February 27, 2019 is granted. 2. Entitlement to a rating in excess of 10 percent for bilateral hearing loss is denied. FINDING OF FACT For the entire appeal period, the Veteran's bilateral hearing loss was manifested by no worse than a Level I hearing loss in the right ear and Level XI hearing loss in the left ear. CONCLUSIONS OF LAW 1. The criteria for entitlement to a 10 percent disability rating for bilateral hearing loss prior to February 27, 2019 are met. 38 U.S.C. § 1155, 5107; 38 C.F.R. § 4.1, 4.2, 4.7, 4.85, 4.86, Diagnostic Code (DC) 6100. 2. The criteria for a rating in excess of 10 percent for bilateral hearing loss are not met. 38 U.S.C. §1155; 38C.F.R. § 4.1, 4.7, 3.321, 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty from December 1968 to July 1970 and December 1990 to March 1991, including in the Republic of Vietnam. His awards include the Vietnam Cross of Gallantry with Palm. This matter is on appeal from a June 2011 rating decision. In December 2011, the Veteran testified at a Decision Review Officer (DRO) hearing. A transcript of this hearing is of record. In November 2017, this matter was remanded by the Board for further development. An October 2020 rating decision increased the rating for the Veteran's bilateral hearing loss to 10 percent, effective February 27, 2019. This matter was further remanded in December 2020. The initial date of the claim is June 2, 2009. Increased Rating 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. 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). Generally, 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. Importantly, the evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran 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, 53 (1990). 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). Entitlement to a compensable disability rating for bilateral hearing loss prior to February 27, 2019 The Veteran contends he is entitled to a compensable disability rating prior to February 27, 2019. The Board agrees. The evidence includes a private audiology evaluation dated November 8, 2011. Unfortunately, this test cannot be used in evaluation of a compensable rating. Upon review it can be determined the graphed plot of the 3000 Hertz (Hz) test for the right ear, however, it cannot be determined for the left ear. Furthermore, per the development conducted following the December 2020 Board remand, including the February 3, 2021 addendum opinion, the audiologist who conducted this examination confirmed a Maryland CNC test was not performed. If the speech recognition scores are not Maryland CNC, then the audiometric evaluation is not adequate for rating purposes under 38 C.F.R. § 4.85(a). The Veteran was also afforded a C&P examination on June 13, 2011. The Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: 6/13/2011 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 20 30 50 45 36 100 LEFT 90 85 85 75 84 0 Applying the results to Table VI, the findings yield a numeric designation of Level I in the right ear and Level XI in the left ear. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was shown in the left ear. Applying the results to Table VIA yields Level I in the right ear and level VIII in the left ear. Here, Table VI yields the highest rating for the left ear and is applied. Entering the resulting bilateral numeric designation of Level I for the right ear and Level XI for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a 10 percent disability rating under DC 6100. There are no other audiological findings during this stage showing that the Veteran meets the speech discrimination test scores and average hearing threshold levels to warrant a higher schedular rating. The Board considered the Veteran's lay statements which indicate that he uses hearing aids and has difficulty hearing well, following group conversation, and following instructions. The Veteran is competent to describe his hearing difficulties. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, the reports must be considered in conjunction with the clinical evidence of record as well as the pertinent rating criteria. In this regard, the Board emphasizes that disability ratings are derived by a mechanical application of the rating schedule. 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). Based on the evidence above, a 10 percent rating, but no higher, is warranted for the Veteran's bilateral hearing loss prior to February 27, 2019. Entitlement to a rating in excess of 10 percent for bilateral hearing loss from February 27, 2019 Since the October 2020 rating decision granting a 10 percent rating effective February 27, 2019, the Veteran has not submitted any evidence or argument contending that he is entitled to a rating higher than 10 percent. However, as that grant does not represent a total grant of benefits sought on appeal, this claim for increase remains before the Board. AB v. Brown, 6 Vet. App. 35 (1993). A February 2019 private treatment record contains a complete audiogram. Unfortunately, this test cannot be used, as it was completed by the same practice as the 2011 private test, and the February 3, 2021 addendum opinion confirmed that the audiologist who conducted this examination did not use the Maryland CNC test. If the speech recognition scores are not Maryland CNC, then the audiometric evaluation is not adequate for rating purposes under 38 C.F.R. § 4.85(a). A January 24, 2020 VA examination reveals that the Veteran reported he has difficulty understanding conversation and needs to turn the volume up on the TV. 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: 1/24/2020 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 30 40 50 55 44 92 LEFT 85 90 90 80 86 0 Applying the results to Table VI, the findings yield a numeric designation of Level I in the right ear and Level XI in the left ear. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was shown in the left ear. Applying the results to Table VIA yields Level VIII in the left ear. Table VI yields the higher numeral, so Level XI will be used for the left ear. Entering the resulting bilateral numeric designation of Level I for the right ear and Level XI for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a 10 percent disability rating under Diagnostic Code 6100. Based on the evidence above, a rating in excess of 10 percent for the Veteran's bilateral hearing loss is not warranted. The Board expressly acknowledges its consideration of the lay evidence of record when adjudicating this claim, including difficulty understanding conversations and needing the volume higher on 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. Lendenmann, 3 Vet. App. 345. 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, 28 Vet. App. 366. The Veteran's main complaint is reduced hearing acuity and clarity, which is what is contemplated in the rating assigned. Rossy, 29 Vet. App. at 145. Accordingly, the preponderance of the most probative evidence is against the claim of entitlement to a rating in excess of 10 percent for hearing loss. To this extent, the claim is denied. LAURA E. COLLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Brewer, 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.