Citation Nr: 22015174 Decision Date: 03/16/22 Archive Date: 03/16/22 DOCKET NO. 18-53 264A DATE: March 16, 2022 ORDER Entitlement to an initial rating greater than 30 percent for bilateral hearing loss is denied. FINDING OF FACT Throughout the appeal period, the Veteran's bilateral hearing loss is manifested by no more than level VI hearing on the right and level VII hearing on the left. CONCLUSION OF LAW The criteria for entitlement to an initial rating greater than 30 percent for bilateral hearing loss have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.85, Diagnostic Code 6100, 4.86. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1965 to November 1967. In July 2020, a virtual hearing was held before the undersigned Veterans Law Judge (VLJ). In November 2020, the Board remanded the appeal for additional development. Following compliance with the remand directives, the case was returned to the Board and the Veteran requested another hearing. In October 2021, a second virtual hearing was held before the undersigned on this issue. Entitlement to an initial rating greater than 30 percent for bilateral hearing loss In December 2017, VA granted service connection for bilateral hearing loss and assigned a 30 percent rating effective December 29, 2016. The Veteran disagreed with the rating and perfected this appeal. He contends that the assigned rating does not adequately reflect the severity of his disability. Initially, the Board notes that in April 2021, the attorney of record requested a hearing to address the issue herein. It appears this was an automatic request for a hearing without having reviewed the claims folder to ascertain that a hearing had already been held and the claim recently remanded. At the second hearing, the Veteran was represented by another attorney at the firm, who was clearly unaware that there had been a prior remand and that the Veteran had recently been afforded a VA examination to address the current severity of his hearing loss. The attorney made no new arguments at the hearing. The Veteran's attorney is reminded that the Board's resources are not unlimited, and submissions of frivolous appeals and/or requests consume significant resources and result in increased delays for all veterans waiting for their appellate decisions. See Massie v. Shinseki, 25 Vet. App. 123, 135 (2011) ("[A]ttorneys who represent veterans before VA should be oil for the gears of the system, not sand in the works."). Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (rating schedule), found in 38 C.F.R. Part 4. Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C. § 1155. A rating for hearing loss is determined by a mechanical application of the rating schedule to the numeric designations assigned based on audiometric test results. Lendenmann v. Principi, 3 Vet. App. 345 (1992). Evaluations of defective hearing range from noncompensable to 100 percent. The basic method of rating hearing loss involves audiological test results of organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests (Maryland CNC), together with the average hearing threshold level as measured by puretone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 Hertz. Puretone threshold average is the sum of puretone thresholds at 1000, 2000, 3000, and 4000 Hertz divided by four. To evaluate the degree of disability of service-connected hearing loss, the rating schedule establishes eleven auditory acuity levels ranging from numeric level I for essentially normal acuity, through numeric level XI for profound deafness. 38 C.F.R. § 4.85, Diagnostic Code 6100. The current rating criteria include an alternate method of rating exceptional patterns of hearing as defined in 38 C.F.R. § 4.86 (puretone threshold of 55 decibels or more at 1000, 2000, 3000, and 4000 Hertz; puretone threshold of 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz). On VA examination in December 2017, the Veteran reported that he cannot hear a lot of people especially if they turn away from him. He does not catch a word and if he does not hear it correctly, then he thinks that they are saying something else. Puretone thresholds at 1000, 2000, 3000, and 4000 Hertz were 55, 80, 85 and 85 on the right and 60, 85, 80, and 85 on the left. Puretone threshold average was 76 on the right and 78 on the left. Speech discrimination scores pursuant to the Maryland CNC word list were 82 percent on the right and 90 percent on the left. This corresponds to level V hearing on the right and level III hearing on the left and pursuant to Diagnostic Code 6100 results in a 10 percent rating. Notwithstanding, an exceptional pattern of hearing impairment was shown in both ears. Applying Table VIA, the Veteran has level VI hearing in the right ear and level VII hearing in the left ear resulting in a 30 percent rating. The Veteran underwent a VA audiogram as part of outpatient treatment in March 2019. Speech discrimination was conducted with the CIDW-22 and not the Maryland CNC and thus, the results are not adequate for rating purposes. See 38 C.F.R. § 4.85. Further, while puretone thresholds were documented, an exceptional pattern of hearing impairment was not shown. Thus, Table VIA is not for application. At the July 2020 hearing, the Veteran testified that his hearing had gotten worse. Accordingly, in November 2020, the Board remanded for an examination to determine the current severity of his hearing loss. On VA examination in March 2021, the Veteran reported that his hearing loss impacts ordinary conditions of daily life. He described this impact as not being able to hear much without his hearing aids. Puretone thresholds at 1000, 2000, 3000, and 4000 Hertz were 45, 70, 75, and 80 on the right and 50, 75, 75, and 75 on the left. Puretone threshold average was 67.50 on the right and 68.75 on the left. Speech discrimination scores pursuant to the Maryland CNC word list were 80 percent on the right and 60 percent on the left. This corresponds to level IV hearing on the right and level VII hearing on the left resulting in a 20 percent rating. An exceptional pattern of hearing impairment was not shown. At the October 2021 hearing, the Veteran testified that his hearing had gotten a lot worse. He wears hearing aids and cannot hear everything that people say. He did not indicate that this worsening had occurred since the March 2021 examination. Initially, the Board notes that the attorney made several boilerplate requests for information relating to the VA examiner's qualifications. In a November 2021 post-hearing memorandum, the attorney waived this request. She also argued that on VA examination in March 2021, the important test of "acoustic reflexes" was not successful due to an inability to maintain a seal. The attorney requested that VA either grant an increased rating based off the evidence and testimony or schedule a new examination that can properly address all issues and the true severity of the Veteran's condition. As set forth, audiometric findings on VA examination in December 2017 support no more than a 30 percent rating. The Board acknowledges the argument concerning the March 2021 VA examination and notes the examination report does indicate an inability to obtain/maintain seal on the right. Notwithstanding, the examiner indicated that the test results were valid for rating purposes. Thus, the Board finds the examination adequate. As to the Veteran's reports of worsening hearing loss, the Board acknowledges that he is competent to report his perceived level of hearing impairment and limitations related to same. Layno v. Brown, 6 Vet. App. 465, 470 (1994). The March 2021 examination, however, which was conducted less than one year ago resulted in findings corresponding with no more than a 20 percent rating. The Board does not find the Veteran's statements sufficient to outweigh the audiometric test results. Further, as these results suggest some improvement in hearing, the Board finds no basis for yet another VA examination. (Continued on the next page) Finally, the Board acknowledges the Veteran's statements concerning his symptoms and how his hearing loss impacts his daily life. The rating criteria contemplate speech reception thresholds and ability to hear spoken words on Maryland CNC testing. The functional impact of reduced hearing acuity that the Veteran describes is contemplated by the assigned rating. Doucette v. Shulkin, 28 Vet. App. 366 (2017); Rossy v. Shulkin, 29 Vet. App. 142, 145 (2017). Based on the foregoing, the Board finds that the competent and credible evidence is neither evenly nor approximately balanced as to whether an increased rating for bilateral hearing loss is warranted. Rather, the evidence persuasively weighs against the claim and the benefit of the doubt doctrine does not apply. 38 U.S.C. § 5107(b), Lynch v. McDonough, __ F.4th __, No. 2020-2067, 2021 U.S. App. LEXIS 37312 (Fed. Cir. Dec. 17, 2021) (holding the benefit-of-the-doubt doctrine is not for application when the evidence is persuasively for or against the claim). The claim is denied. LAURA E. COLLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Carsten, 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.