Citation Nr: 22015653 Decision Date: 03/18/22 Archive Date: 03/18/22 DOCKET NO. 18-12 620 DATE: March 18, 2022 ORDER Entitlement to an initial compensable rating, and in excess of 10 percent from July 30, 2015, to July 17, 2018, for bilateral hearing loss is denied. FINDING OF FACT 1. Prior to July 30, 2015, 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 III in the left ear. 2. From July 30, 2015, to July 17, 2018, the Veteran's bilateral hearing loss has been manifested by hearing acuity of no worse than Level IV in the right ear and no worse than Level III in the left ear. CONCLUSION OF LAW 1. The criteria for a compensable rating prior to July 30, 2015, 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. The criteria for a rating in excess of 10 percent from July 30, 2015, to July 17, 2018, 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 FINDING AND CONCLUSION The Veteran had active service from April 1971 to April 1973. In September 2021, the Veteran testified before the undersigned Veterans Law Judge. A transcript of the hearing is of record. The Veteran's claims were previously remanded by the Board in a December 2021 decision. The remand directives ordered the RO to issue an SOC on the Veteran's claim for an initial compensable rating for bilateral hearing loss. The Board finds that the RO has substantially complied with the December 2021 Board remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). The Board notes that the Veteran did not appeal the 20 percent rating from July 17, 2018, for bilateral hearing loss. Thus, that issue is not currently before the Board. 1. Entitlement to an initial compensable rating, and in excess of 10 percent from July 30, 2015, to July 17, 2018, for bilateral hearing loss The Veteran contends that he is entitled to a compensable initial rating and a rating in excess of 10 percent from July 30, 2015 to July 17, 2018 because he was prescribed hearing aids by the VA. 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). An April 2014 VA examination reveals that the Veteran reported difficulty understanding speech when there are competing noises, when he cannot see the speaker's face, is not close to the speaking source, the lighting is not good, or if he is at a distance. 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: 04/03/2014 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 30 55 60 65 52.5 94 LEFT 20 45 55 60 45 96 An August 2014 VA examination reveals that the Veteran reported he cannot hear well or understand speech. 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: 08/05/2014 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 40 60 65 70 60 96 LEFT 50 65 80 85 70 94 For the period prior to July 30, 2015, and applying the results to Table VI, the findings yield a numeric designation of Level II in the right ear and Level III in the left ear. Entering the resulting bilateral numeric designation of Level II for the right ear and Level III for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a noncompensable disability rating under Diagnostic Code 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown July 30, 2015. A December 2017 VA examination reveals that the Veteran reported he had to keep his TV volume very loud and struggles having conversations with people especially if he cannot see their faces. 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: 12/07/2017 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 40 65 60 60 56.25 80 LEFT 50 65 65 55 58.75 84 For the period beginning July 30, 2015, and ending July 17, 2018, and applying the results to Table VI, the findings yield a numeric designation of Level IV in the right ear and Level III in the left ear. Entering the resulting bilateral numeric designation of Level IV 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. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. For reference, a September 2018 VA examination reveals that the Veteran reported difficulty hearing when people are talking fast, difficulty hearing the TV, and difficulty hearing when drivingunable to hear the horn blowing. 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: 09/20/2018 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 45 60 65 60 58 72 LEFT 45 60 70 60 59 72 Applying the results to Table VI, the findings yield a numeric designation of Level V in the right ear and Level V in the left ear. Entering the resulting bilateral numeric designation of Level V for the right ear and Level V for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a 20 percent disability rating under Diagnostic Code 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. Based on the evidence above, prior to July 30, 2015, a compensable rating for the Veteran's bilateral hearing loss. For the period of July 30, 2015, to July 17, 2018, a rating in excess of 10 percent is not warranted. The December 2017 VA examination supports the finding that a rating of 20 percent is not warranted prior to July 17, 2018, as an increase in the severity of the Veteran's hearing loss was not factually ascertainable prior to the September 2018 examination. The Board expressly acknowledges its consideration of the lay evidence of record when adjudicating this claim, including difficulty understanding conversations, difficulty hearing when driving, and difficulty hearing the television. 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 most probative evidence of record persuasively weighs against the claim of entitlement to a compensable rating prior to July 30, 2015, and a rating in excess of 10 percent prior to July 17, 2018, for hearing loss. As the most probative evidence of record persuasively weighs against higher ratings, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Lynch v. McDonough, No. 2020-2067, 2021 U.S. App. LEXIS 37307 (Fed. Cir. Dec. 17, 2021) L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M.D. Taylor, 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.