Citation Nr: 22019971 Decision Date: 04/03/22 Archive Date: 04/03/22 DOCKET NO. 16-63 992 DATE: April 3, 2022 ORDER Entitlement to an initial compensable rating prior to August 24, 2016, for bilateral hearing loss is denied. Entitlement to a rating in excess of 30 percent for bilateral hearing loss on and after August 24, 2016, is denied FINDINGS OF FACT 1. Prior to August 24, 2016, the Veteran's bilateral hearing loss was at its worst manifest by a numeric designation of Level I in the right ear and Level V in the left ear. 2. On and after August 24, 2016, the Veteran's bilateral hearing loss was at its worst manifest by a numeric designation of Level IV in the right ear and Level IX in the left ear. CONCLUSIONS OF LAW 1. Prior to August 24, 2016, the criteria for an initial compensable rating 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. On and after August 24, 2016, the criteria for a rating in excess of 30 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 CONCLUSIONS The Veteran served in the United States Navy from September 1972 to September 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a November 2015 rating decision that originally granted service connection and a noncompensable rating for the left ear from a Department of Veterans Affairs (VA) Regional Office (RO). In its September 2019 decision, the Board granted service connection for right ear hearing loss and remanded the claim for an increased initial rating for the left ear. At that point, the service-connected disability became bilateral hearing loss. The RO assigned an initial noncompensable rating for the period prior to August 24, 2016, and a rating of 30 percent from that date forward. The claim was previously remanded in September 2019 and August 2021, and both times the Board instructed the RO to obtain private treatment records from the Veteran's ear, nose, and throat doctor, to include an October 2018 audiology examination. This matter has since returned to the Board for further adjudication. 1. Entitlement to an initial compensable rating prior to August 24, 2016, and a rating in excess of 30 percent thereafter, for bilateral hearing loss is denied. In August 2021, the RO sent the Veteran correspondence requesting that he fill out and return the enclosed forms so VA could request the outstanding audiological examination as instructed in the Board's August 2021 remand. Additionally, the RO requested the Veteran submit any additional relevant records in his possession. In September 2021, the Veteran contacted the RO via telephone and informed them he was submitting the October 2018 audiological examination referenced in the remand, and the RO received the examination later that month. As such, the Board finds that the RO substantially complied with its remand instructions. The Veteran currently has a noncompensable rating for bilateral hearing loss from August 17, 2015, and a 30 percent rating from August 24, 2016. 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). The Veteran underwent VA examinations in November 2015 and August 2016. He also submitted May 2016 and October 2018 private audiological examinations. The November 2015 VA examination reveals that the Veteran reported having difficulty understanding 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: August 2015 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 20 25 60 60 41 92 LEFT 20 60 90 90 65 72 Applying the results to Table VI, the findings yield a numeric designation of Level I in the right ear and Level V in the left ear. Entering the resulting bilateral numeric designation of Level I for the right ear and Level V 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 was not shown. The May 2016 private examination reveals that the Veteran's pure tone thresholds, in decibels, were as follows: May 2016 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 45 30 55 55 46 --- LEFT 40 55 90 95 70 --- It is unclear whether the May 2016 private audiologist used the Maryland CNC test for word recognition. In Savage v. Shinseki, the Court of Appeals for Veterans Claims held that when an appellant submits a private audiological examination that is unclear or insufficient in some way, VA should seek clarification from the examiner or explain why such clarification is not needed. See Savage v. Shinseki, 24 Vet. App. 259, 260 (2011). Here, the May 2016 examiner indicated the Veteran's speech recognition scores were 100 percent for the right ear and 80 percent for the left. Even assuming that the examiner used the Maryland CNC testing, however, applying the results to Table VI would yield a numeric designation of Level I in the right ear and Level IV in the left ear. Entering the resulting bilateral numeric designation of Level I 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. Because the resulting rating is the same as the rating for the period prior to August 24, 2016, further clarification on whether the Maryland CNC test was used is not needed. Thus, the Veteran's bilateral hearing loss is most appropriate rated as noncompensably disabling prior to August 24, 2016, pursuant to 38 C.F.R. § 4.85, Diagnostic Code 6100, and entitlement to a higher initial rating during this period must be denied. Turning to the rating on and after August 24, 2016, the Veteran underwent additional VA examination on that date. At that time, report of the August 2016 VA examination reveals that the Veteran reported that people had to "get very loud with him" if they were trying to talk to him when he did not have his hearing aids in. 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: August 2016 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 20 15 50 45 33 72 LEFT 25 50 90 100 66 38 Applying the results to Table VI, the findings yield a numeric designation of Level IV in the right ear and Level IX in the left ear. Entering the resulting bilateral numeric designation of Level IV for the right ear and Level IX for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a 30 percent disability rating under Diagnostic Code 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. The October private examination reveals that the Veteran reported having occasional fullness or pressure in his ears but does not experience any dizziness. 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: October 2018 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 25 25 55 45 37 --- LEFT 25 60 90 100 74 --- It is unclear whether the October 2018 private audiologist used the Maryland CNC test for word recognition. In Savage v. Shinseki, the Court of Appeals for Veterans Claims held that when an appellant submits a private audiological examination that is unclear or insufficient in some way, VA should seek clarification from the examiner or explain why such clarification is not needed. See Savage v. Shinseki, 24 Vet. App. 259, 260 (2011). Here, the October 2018 examiner indicated the Veteran's speech recognition scores were 82 percent for the right ear and 68 percent for the left. Even assuming that the examiner used the Maryland CNC testing, applying the results to Table VI would yield a numeric designation of Level III in the right ear and Level VI in the left ear. Entering the resulting bilateral numeric designation of Level III 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. Because the resulting rating is less than the rating granted from August 24, 2016, further clarification on whether the Maryland CNC test was used is not needed. Based on the evidence above, the Board finds that on and after August 24, 2016, entitlement to a rating in excess of 30 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 the Veteran's description of his difficulty hearing speech, people needing to speak very loudly to him when he is not wearing his hearing aids, and occasional fullness or pressure in his ears. 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 an initial compensable rating prior to August 24, 2016, and in excess of 30 percent thereafter, for hearing loss. As the most probative evidence of record persuasively weighs against the claim, 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). Caroline B. Fleming Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Gabrielle Ongies, 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.