Citation Nr: AXXXXXXXX Decision Date: 06/29/20 Archive Date: 06/29/20
DOCKET NO. 190912-71678 DATE: June 29, 2020
ORDER
A rating higher than 10 percent for bilateral hearing loss prior to April 30, 2019, and higher than 30 percent, thereafter, is denied.
FINDINGS OF FACT
1. Prior to April 30, 2019, the Veteran's bilateral hearing has been manifested by hearing acuity of no worse than Level IV in the left ear and Level V in the right ear.
2. From April 30, 2019, the Veteran’s bilateral hearing has manifest by hearing acuity of no worse than Level VII in the left ear and Level VI in the right ear.
CONCLUSIONS OF LAW
1. Prior to April 30, 2019, the criteria for a rating higher than 10 percent for bilateral hearing loss are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4 .7, 4.10, 4.85, 4.86, Diagnostic Code (DC) 6100.
2. From April 30, 2019, the criteria for a rating higher than 30 percent for bilateral hearing loss are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.85, 4.86, DC 6100.
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served on active duty from July 1966 to July 1975. This appeal comes before the Board of Veterans' Appeals (Board) on appeal from a July 2019 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), which increased the disability rating for hearing loss from 10 percent to 30 percent effective April 30, 2019. In September 2019, the Veteran timely appealed this Appeals Modernization Act (AMA) rating decision and requested the Direct Review lane.
The Veteran seeks a rating higher than 10 percent for bilateral hearing prior to April 30, 2019, and higher than 30 percent thereafter.
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, DC 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 2016 VA examination report reveals that the Veteran reported that he was unable to hear when there was background noise. The Veteran's Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels were as follows:
HERTZ
1000 2000 3000 4000 Average Speech
LEFT 45 60 75 80 66 76
RIGHT 60 60 75 75 68 80
Applying the results to Table VI, the findings yield a numeric designation of Level IV in the left ear and Level IV in the right ear. Entering the resulting bilateral numeric designation of Level IV for the left ear and Level IV for the right ear to 38 C.F.R. § 4.85, Table VII, equates to a 10 percent disability rating under DC 6100.
However, 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 level, the findings yield a Level V in the right ear. Entering the resulting bilateral numeric designation of Level IV for the left ear (no exceptional hearing impairment) and Level V for the right ear (exceptional hearing impairment) to 38 C.F.R. § 4.85, Table VII, still equates to a 10 percent disability rating under DC 6100.
The Board notes that the Veteran submitted an April 2018 private audiological examination. However, this examination does not indicate that the Maryland CNC word discrimination test was used; therefore, the audiometric findings ar not adequate for rating purposes.
An April 2019 VA examination report reveals that the Veteran reported that he was completely deaf and that he is unable to “pick up the words”, even when wearing hearing aids. He also stated that he is unable to hear the television at a volume comfortable for his wife. The Veteran's Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels were as follows:
LEFT 50 70 80 80 70 62
RIGHT 60 65 80 80 71 74
Applying the results to Table VI, the findings yield a numeric designation of Level VII in the left ear and Level VI in the right ear. Entering the resulting bilateral numeric designation of Level VII for the left ear and Level VI for the right ear to 38 C.F.R. § 4.85, Table VII, equates to a 30 percent disability rating under DC 6100.
The right ear still shows an exceptional pattern of hearing impairment and applying the results to Table VIA level, the findings still yield a Level VI in the right ear.
Entering the resulting bilateral numeric designation of Level V for the left ear (no exceptional hearing impairment) and Level VI for the right ear (exceptional hearing impairment) to 38 C.F.R. § 4.85, Table VII, still equates to a 30 percent disability rating under DC 6100.
Based on the evidence above, a rating higher than 10 percent prior to April 30, 2019 and higher than 30 percent thereafter 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 lay reports of having to constantly ask his wife to repeat herself; having to always put the telephone on speaker; having trouble distinguishing words when spoken to in public; and distinguishing words when watching television.
Free access — add to your briefcase to read the full text and ask questions with AI
Citation Nr: AXXXXXXXX Decision Date: 06/29/20 Archive Date: 06/29/20
DOCKET NO. 190912-71678 DATE: June 29, 2020
ORDER
A rating higher than 10 percent for bilateral hearing loss prior to April 30, 2019, and higher than 30 percent, thereafter, is denied.
FINDINGS OF FACT
1. Prior to April 30, 2019, the Veteran's bilateral hearing has been manifested by hearing acuity of no worse than Level IV in the left ear and Level V in the right ear.
2. From April 30, 2019, the Veteran’s bilateral hearing has manifest by hearing acuity of no worse than Level VII in the left ear and Level VI in the right ear.
CONCLUSIONS OF LAW
1. Prior to April 30, 2019, the criteria for a rating higher than 10 percent for bilateral hearing loss are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4 .7, 4.10, 4.85, 4.86, Diagnostic Code (DC) 6100.
2. From April 30, 2019, the criteria for a rating higher than 30 percent for bilateral hearing loss are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.85, 4.86, DC 6100.
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served on active duty from July 1966 to July 1975. This appeal comes before the Board of Veterans' Appeals (Board) on appeal from a July 2019 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), which increased the disability rating for hearing loss from 10 percent to 30 percent effective April 30, 2019. In September 2019, the Veteran timely appealed this Appeals Modernization Act (AMA) rating decision and requested the Direct Review lane.
The Veteran seeks a rating higher than 10 percent for bilateral hearing prior to April 30, 2019, and higher than 30 percent thereafter.
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, DC 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 2016 VA examination report reveals that the Veteran reported that he was unable to hear when there was background noise. The Veteran's Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels were as follows:
HERTZ
1000 2000 3000 4000 Average Speech
LEFT 45 60 75 80 66 76
RIGHT 60 60 75 75 68 80
Applying the results to Table VI, the findings yield a numeric designation of Level IV in the left ear and Level IV in the right ear. Entering the resulting bilateral numeric designation of Level IV for the left ear and Level IV for the right ear to 38 C.F.R. § 4.85, Table VII, equates to a 10 percent disability rating under DC 6100.
However, 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 level, the findings yield a Level V in the right ear. Entering the resulting bilateral numeric designation of Level IV for the left ear (no exceptional hearing impairment) and Level V for the right ear (exceptional hearing impairment) to 38 C.F.R. § 4.85, Table VII, still equates to a 10 percent disability rating under DC 6100.
The Board notes that the Veteran submitted an April 2018 private audiological examination. However, this examination does not indicate that the Maryland CNC word discrimination test was used; therefore, the audiometric findings ar not adequate for rating purposes.
An April 2019 VA examination report reveals that the Veteran reported that he was completely deaf and that he is unable to “pick up the words”, even when wearing hearing aids. He also stated that he is unable to hear the television at a volume comfortable for his wife. The Veteran's Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels were as follows:
LEFT 50 70 80 80 70 62
RIGHT 60 65 80 80 71 74
Applying the results to Table VI, the findings yield a numeric designation of Level VII in the left ear and Level VI in the right ear. Entering the resulting bilateral numeric designation of Level VII for the left ear and Level VI for the right ear to 38 C.F.R. § 4.85, Table VII, equates to a 30 percent disability rating under DC 6100.
The right ear still shows an exceptional pattern of hearing impairment and applying the results to Table VIA level, the findings still yield a Level VI in the right ear.
Entering the resulting bilateral numeric designation of Level V for the left ear (no exceptional hearing impairment) and Level VI for the right ear (exceptional hearing impairment) to 38 C.F.R. § 4.85, Table VII, still equates to a 30 percent disability rating under DC 6100.
Based on the evidence above, a rating higher than 10 percent prior to April 30, 2019 and higher than 30 percent thereafter 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 lay reports of having to constantly ask his wife to repeat herself; having to always put the telephone on speaker; having trouble distinguishing words when spoken to in public; and distinguishing words when watching 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).
The preponderance of the most probative evidence is against the claim of entitlement to a rating higher than 10 percent for hearing loss prior to April 30, 2019, and higher than 30 percent thereafter. In reaching this conclusion, the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
JOHN Z. JONES
Veterans Law Judge
Board of Veterans’ Appeals
Attorney for the Board A. Hemphill
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.