Citation Nr: 22016229 Decision Date: 03/21/22 Archive Date: 03/21/22 DOCKET NO. 10-17 864 DATE: March 21, 2022 ORDER Entitlement to a compensable rating for hearing loss prior to February 8, 2017 is denied. Entitlement to a 10 percent rating, but no higher, for bilateral hearing loss from February 8, 2017 is granted. Entitlement to an evaluation in excess of 20 percent for bilateral hearing loss from August 14, 2021 is denied. FINDINGS OF FACT 1. Prior to March 13, 2015, Veteran's right ear hearing loss has been manifested by hearing acuity of no worse than Level VI in the right. 2. From March 13, 2015 to February 8, 2017, Veteran's bilateral hearing loss has been manifested by hearing acuity of no worse than Level VI in the right ear and no worse than Level I in the left ear. 3. From February 8, 2017 to August 14, 2021, Veteran's bilateral hearing has been manifested by hearing acuity of no worse than Level VI in the right ear and no worse than Level III in the left ear. 4. From August 14, 2021, Veteran's bilateral hearing has been manifested by hearing acuity of no worse than Level VIII in the right ear and no worse than Level III in the left ear. CONCLUSIONS OF LAW 1. The criteria for a compensable rating for right ear hearing loss prior to March 13, 2015, and bilateral hearing loss through February 8, 2017 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 entitlement to a 10 percent rating, but no higher, for bilateral hearing loss from February 8, 2017 to August 14, 2021 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. 3. The criteria for entitlement to an evaluation in excess of 20 percent for bilateral hearing loss from August 14, 2021 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 CONCLUSIONS The Veteran served on active duty from August 2003 to November 2003, and from June 2006 to June 2007. This case is before the Board of Veterans' Appeals (Board) on appeal from a May 2009 Department of Veterans Affairs (VA) Regional Office (RO) rating decision. In an April 2018 rating decision, the RO granted the Veteran's claim for entitlement to service connection for left ear hearing loss and assigned a noncompensable rating effective March 13, 2015. This case has a long and extensive procedural history with multiple Board remands. Most recently, the Veteran's claims were remanded by the Board in a May 2018 decision. The Board finds that the RO has substantially complied with the May 2018 Board remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). The Board also notes that the Veteran has been granted entitlement to service connection for bilateral tinnitus rated at 10 percent disabling, which is the maximum schedular evaluation for tinnitus. The Veteran was granted total disability due to individual unemployability from the date of his discharge, June 2, 2007, and has been in receipt of a 100 percent disability rating since March 3, 2020. The Veteran is also receiving Special Monthly Compensation under 38 U.S.C. 1114 subsections (s), (k), (l), and (p). The Veteran was deemed incompetent as of June 22, 2021. 1. Entitlement to a compensable rating for hearing loss prior to February 8, 2017 2. Entitlement to a 10 percent rating, but no higher, for bilateral hearing loss from February 8, 2017 3. Entitlement to an evaluation in excess of 20 percent for bilateral hearing loss from August 14, 2021 The Veteran has contended that he is entitled to a compensable rating during the appeal period. 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). If impaired hearing is service-connected in only one ear, the law allows for compensation for hearing loss as if both ears were service-connected if the service-connected hearing loss is ratable as at least 10 percent disabling and the non-service-connected hearing loss meets the standard for a hearing loss disability for VA purposes under 38 C.F.R. § 3.385, unless the non-service-connected hearing loss is the result of the Veteran's willful misconduct. See 38 C.F.R. § 3.383. To determine the percentage evaluation from Table VII, the non-service-connected ear will be assigned a Roman Numeral designation for hearing impairment of I, subject to the provisions of 38 C.F.R. § 3.383. 38 C.F.R. § 4.85(f). An August 28, 2008 audiological examination in the United Kingdom reveals that the Veteran reported the use of hearing aids. 38 C.F.R. § 4.10; Martinak v. Nicholson, 21 Vet. App. 447 (2007). The Veteran's pure tone thresholds, in decibels, were as follows: 08/28/2008 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 60 75 75 75 71.25 N/A LEFT 10 20 25 30 21.25 N/A No speech discrimination scores were available. A March 24, 2010 private treatment note reveals that the Veteran reported worsening hearing loss. 38 C.F.R. § 4.10; Martinak v. Nicholson, 21 Vet. App. 447 (2007). The Veteran's pure tone thresholds, in decibels, were as follows: 03/24/2010 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 80 90 95 95 90 N/A LEFT 60 60 60 65 61.25 N/A The Board notes that this examination is not adequate for rating purposes under § 4.85(a) due to the lack of speech discrimination testing using a Maryland CNC word list. Furthermore, this examination is inconsistent with any other examination, both before and after, thus the Board finds that it is not valid or suitable for ratings purposes. A February 2, 2013 VA audiological examination reveals that the Veteran reported further issues with hearing. 38 C.F.R. § 4.10; Martinak v. Nicholson, 21 Vet. App. 447 (2007). The Veteran's pure tone thresholds, in decibels, were as follows: 08/28/2018 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 45 50 65 110 67.5 N/A LEFT 20 25 30 30 26.25 95 No speech discrimination scores were available. A February 27, 2013 hearing aid consultation indicated the Veteran reported no significant symptoms related to his left ear. 38 C.F.R. § 4.10; Martinak v. Nicholson, 21 Vet. App. 447 (2007). The Veteran's pure tone thresholds, in decibels, were as follows: 02/27/2013 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 45 50 65 110 67.5 N/A LEFT 0 0 30 30 15 N/A No speech discrimination scores were available. A March 13, 2015 audiological examination indicated the Veteran was recommended to have bilateral hearing aids. 38 C.F.R. § 4.10; Martinak v. Nicholson, 21 Vet. App. 447 (2007). The Veteran's pure tone thresholds, in decibels, were as follows: 03/13/2015 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 35 50 60 65 52.5 N/A LEFT 20 30 35 40 31.25 N/A No speech discrimination scores were available. A July 5, 2016 VA audiological examination indicated the Veteran continued to have problems with hearing loss. 38 C.F.R. § 4.10; Martinak v. Nicholson, 21 Vet. App. 447 (2007). The Veteran's pure tone thresholds, in decibels, were as follows: 07/05/2016 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 35 55 75 75 60 92% LEFT 10 20 25 30 21.25 92% A February 8, 2017 VA audiological examination indicated the Veteran continued to have problems with hearing loss. 38 C.F.R. § 4.10; Martinak v. Nicholson, 21 Vet. App. 447 (2007). The Veteran's speech discrimination scores and pure tone thresholds, in decibels, were as follows: 02/08/2017 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 40 60 65 80 61.25 68% LEFT 15 5 15 20 13.75 86% The Board notes that this is the first valid examination where the Veteran's scores constitute a compensable rating for his bilateral hearing loss. A December 17, 2019 VA audiological examination produced invalid scores for ratings purposes. The Board includes them here, however, to show that they continue to support a 10 percent evaluation. The Veteran's pure tone thresholds, in decibels, were as follows: 12/17/2019 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 50 70 80 85 71.25 82% LEFT 35 30 30 50 36.25 82% An August 14, 2021 VA audiological examination indicated the Veteran continued to have problems with hearing loss. 38 C.F.R. § 4.10; Martinak v. Nicholson, 21 Vet. App. 447 (2007). The Veteran's speech discrimination scores and pure tone thresholds, in decibels, were as follows: 08/14/2021 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 65 85 85 85 80 52% LEFT 30 20 30 30 27.5 80% For the period prior to February 8, 2017, applying the results to Table VI, the findings yield a numeric designation of Level VI in the right ear and Level I in the left ear. Entering the resulting bilateral numeric designation of Level VI for the right ear and Level I 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 shown in right ear. Applying the results to Table VIA yields Level VI in the right ear and level I in the left ear. Entering the resulting bilateral numeric designation of Level VI for the right ear and Level I for the left ear to 38 C.F.R. § 4.85, Table VII, equates to noncompensable disability rating under Diagnostic Code 6100. Here, Table VIA yields the highest rating for the right ear and Table VI yields the highest rating for the left ear. For the period prior from February 8, 2017 to August 14, 2021, applying the results to Table VI, the findings yield a numeric designation of Level V in the right ear and Level III in the left ear. Entering the resulting bilateral numeric designation of Level Vfor 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 shown in the right ear. Applying the results to Table VIA yields Level VI in the right ear and level I in the left ear. Entering the resulting bilateral numeric designation of Level VI for the right ear and Level I for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a noncompensable disability rating under Diagnostic Code 6100. Here, Table VI yields the highest rating for the right ear and Table VI yields the highest rating for the left ear. From August 14, 2021, applying the results to Table VI, the findings yield a numeric designation of Level VIII in the right ear and Level III in the left ear. Entering the resulting bilateral numeric designation of Level VIII for the right ear and Level III 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 shown in the right ear. Applying the results to Table VIA yields Level VII in the right ear and level I in the left ear. Entering the resulting bilateral numeric designation of Level VII for the right ear and Level I for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a noncompensable disability rating under Diagnostic Code 6100. Here, Table VI yields the highest rating for the right ear and Table VI yields the highest rating for the left ear. Based on the evidence above, prior to February 8, 2017, a compensable rating for the Veteran's hearing loss is not warranted. From February 8, 2017 to August 14, 2021, the Board finds that a 10 percent rating is warranted for the Veteran's bilateral hearing loss. From August 14, 2021, the Board finds that a rating in excess of 20 percent is not warranted. The Board expressly acknowledges its consideration of the lay evidence of record when adjudicating this claim, including difficulties in crowds and hearing the TV, and the use of hearing aids. 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 February 8, 2017, a rating in excess of 10 percent to August 14, 2021, and a rating in excess of 20 percent from August 14, 2201 for hearing loss. As the most probative evidence of record persuasively weighs against a higher rating, 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.