Citation Nr: 23017374 Decision Date: 03/20/23 Archive Date: 03/20/23 DOCKET NO. 18-52 672 DATE: March 20, 2023 ORDER Entitlement to a compensable disability rating for service-connected bilateral hearing loss is denied. REMANDED Entitlement to a compensable disability rating for service-connected status post maxillary trauma with residuals of bone/tooth loss and pain is remanded. FINDING OF FACT The Veteran's bilateral hearing loss has been manifested by hearing acuity of no worse than Level III in the right ear and no worse than Level II in the left ear. CONCLUSION OF LAW The criteria for a 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 (DC) 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1975 to October 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2018 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran appeared at a Board hearing before the undersigned Veterans Law Judge in November 2021. A transcript of the hearing is in the Veteran's file. This matter was previously before the Board in April 2022, at which time it was remanded for a further development. That development having been completed; this claim is once again before the Board. Increased Rating Entitlement to a compensable disability rating for bilateral hearing loss The Veteran contends that he is entitled to a higher rating because of increased difficulty hearing. 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). A May 2018 VA examination reveals that the Veteran reported difficulty hearing in noisy environments and group situations. 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: May 2018 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 40 35 45 50 42 80 LEFT 35 30 35 40 35 88 Applying the results to Table VI, the findings yield a numeric designation of Level III in the right ear and Level II in the left ear. Entering the resulting bilateral numeric designations 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. At a November 2019 VA examination, the Veteran reported he needs his family and friends to repeat themselves and background noises make hearing worse. 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: November 2019 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 30 30 35 45 35 96 LEFT 25 25 25 40 29 98 Applying the results to Table VI, the findings yield a numeric designation of Level I in the right ear and Level I in the left ear. Entering the resulting bilateral numeric designations 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. After reporting worsening hearing, the Veteran was afforded another VA examination in May 2022, which revealed that he continued to have difficulty hearing what people were saying. 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: May 2022 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 25 25 35 45 33 96 LEFT 20 20 30 30 25 96 Applying the results to Table VI, the findings yield a numeric designation of Level I in the right ear and Level I in the left ear. Entering the resulting bilateral numeric designations 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. Based on the evidence above, a compensable rating 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 difficulty hearing his family and friends. 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 for hearing loss. As such, the benefit-of-the-doubt rule does not apply. REASONS FOR REMAND Entitlement to a compensable disability rating for service-connected status post maxillary trauma with residuals of bone/tooth loss and pain is remanded. The Veteran's service-connected maxillary trauma has been rated at a noncompensable rate under DC 9999-9900 during the course of the appeal. A DC ending in 99 indicates that the disability is being evaluated by analogy. In this case, it is observed that DC 9900 addresses chronic osteomyelitis or osteoradionecrosis, conditions which do not appear to be present. As such, it would appear there are other DCs that govern ratings more appropriate and more analogous to the Veteran's symptoms. The Veteran has loss of teeth 8 and 9 due to trauma, which would appear to be appropriately rated under Diagnostic Code 9913, for loss of teeth due to loss of substance of body of maxilla rate. Additionally, at the VA Oral and Dental Conditions VA examination in June 2022, the Veteran was noted to have loss of less than 25 percent of the maxilla. The examiner, however, failed to specify whether it is replaceable by prosthesis by marking that question on the examination report form "not applicable". If the Veteran's maxilla cannot be replaced by prosthesis, it would appear to warrant a 20 percent rating under DC 9915 based on loss of portion of the maxilla. As such, this issue must be clarified on remand. The matters are REMANDED for the following action: 1. Ask the Veteran to identify any additional relevant records he wishes considered regarding this appeal, which records should be sought. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected dental disability. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. The examination must specifically address the Veteran's loss of a portion of the maxilla and must opine as to whether or not it can be replaced by a prosthesis. 3. Upon completion of the above directives, readjudicate the claim. MICHAEL E. KILCOYNE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Jaigirdar, 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.