Citation Nr: 1752667 Decision Date: 11/16/17 Archive Date: 11/22/17 DOCKET NO. 14-07 307 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Entitlement to an initial, compensable rating for bilateral hearing loss prior to January 22, 2015, to a rating in excess of 10 percent prior to October 27, 2016, and to a rating in excess of 20 percent from October 27, 2016, forward. ATTORNEY FOR THE BOARD S. M. Stedman, Associate Counsel INTRODUCTION The Veteran served as a member of the Army National Guard with a period of active duty for training (ADT) from March 1965 to July 1965. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York, which granted service connection for bilateral hearing loss and assigned a noncompensable evaluation. During the pendency of the appeal, this rating was increased to 10 percent effective January 22, 2015, and to 20 percent effective October 27, 2016. In April 2014, July 2015, and September 2016, the Board remanded this matter for further development. That development having been completed, this matter has returned to the Board for further appellate review. FINDINGS OF FACT 1. Prior to January 22, 2015, the Veteran's bilateral hearing loss was manifested by puretone threshold averages no higher than 51 decibels in the right ear and 54 decibels in the left ear, and speech recognition scores no lower than 86 in the right ear and 86 in the left ear. 2. From January 22, 2015 to October 26, 2016, the objective findings correspond to no more than a 10 percent rating for bilateral hearing loss. 3. From October 27, 2016, forward, the Veteran's bilateral hearing loss was manifested by puretone threshold averages no higher than 54 decibels in the right ear and 58 decibels in the left ear, and speech recognition scores no lower than 80 in the right ear and 48 in the left ear. CONCLUSIONS OF LAW 1. The criteria for an initial compensable rating prior to January 22, 2015 for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.3, 4.85, 4.86, Diagnostic Code 6100 (2017). 2. The criteria for a rating in excess of 10 percent from January 22, 2015 to October 26, 2016 for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.3, 4.85, 4.86, Diagnostic Code 6100 (2017). 3. The criteria for a rating in excess of 20 percent from October 27, 2016, forward, for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.3, 4.85, 4.86, Diagnostic Code 6100 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has considered the Veteran's claim and decided entitlement based on the evidence. The Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, with respect to his claim. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). I. Applicable Law Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2017). Any reasonable doubt regarding a degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2017). Thus, if two ratings are potentially applicable, the higher rating is to be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2017). The schedule recognizes that disability from distinct injuries or diseases may overlap. See 38 C.F.R. § 4.14 (2017). Separate disability ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition was not "duplicative of or overlapping with the symptomatology" of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 262 (1994). However, the evaluation of the same disability or its manifestations under various diagnoses, which is known as pyramiding, is to be avoided. 38 C.F.R. § 4.14 (2017). Because the level of disability may have varied over the course of the claim, the rating may be "staged" higher or lower for segments of time during the period under review in accordance with such variations, to the extent they are sufficient to warrant changes in the evaluations assignable under the applicable rating criteria. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). For increased-rating claims, where a claimant seeks a higher evaluation for a previously service-connected disability, it is the present level of disability that is of primary concern, and VA considers the level of disability for the period beginning one year prior to the claim for a higher rating. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994); see also 38 C.F.R. § 3.400 (o)(2) (2017). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. When the evidence supports the claim or is in relative equipoise, the claim will be granted. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). If the preponderance of the evidence weighs against the claim, it must be denied. See id.; Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Hearing loss is evaluated under 38 C.F.R. § 4.85, Diagnostic Code (DC) 6100. In evaluating hearing loss, disability ratings are derived from a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are performed. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Hearing loss disability evaluations range from noncompensable to 100 percent based on organic impairment of hearing acuity, as measured by controlled speech discrimination tests using the Maryland CNC word list, in conjunction with the average hearing threshold, measured by puretone audiometric tests in the frequencies 1000, 2000, 3000, and 4000 cycles per second. 38 C.F.R. § 4.85, DC 6100. The rating schedule establishes eleven auditory acuity levels designated from Level I, for essentially normal hearing acuity, through Level XI for profound deafness. See id. VA audiometric examinations are generally conducted using a controlled speech discrimination test together with the results of a puretone audiometry test. Id. Table VI in 38 C.F.R. § 4.85 is then used to determine the numeric designation of hearing impairment based on the puretone threshold average derived from the audiometry test, and from the results of the speech discrimination test. The horizontal rows in Table VI represent nine categories of the percentage of discrimination based on the controlled speech discrimination test. See id. The vertical columns in Table VI represent nine categories of decibel loss based on the puretone audiometry test. Id. The numeric designation of impaired hearing (Levels I through XI) is determined for each ear by intersecting the horizontal row corresponding to the percentage of discrimination and the vertical column corresponding to the puretone decibel loss. Id. The percentage evaluation is derived from Table VII in 38 C.F.R. § 4.85 by intersecting the vertical column corresponding to the numeric designation for the ear having the better hearing acuity (as determined by Table VI) and the horizontal row corresponding to the numeric designation level for the ear having the poorer hearing acuity (as determined by Table VI). For example, if the better ear has a numeric designation Level of "V" and the poorer ear has a numeric designation Level of "VII," the percentage evaluation is 30 percent. See id. There are alternative criteria for certain exceptional patterns of hearing loss. Specifically, if puretone thresholds in each of the specified frequencies of 1000, 2000, 3000, and 4000 Hertz are 55 decibels or more, an evaluation will be based on either Table VI or Table VIa in 38 C.F.R. § 4.85, whichever results in a higher evaluation. 38 C.F.R. § 4.86(a) (2017). Each ear will be evaluated separately. Id. When the puretone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz, the Roman numeral designation for hearing impairment will be chosen from either Table VI or Table VIa in 38 C.F.R. § 4.85, whichever results in the higher Roman numeral, and that numeral will then be elevated to the next higher numeral. 38 C.F.R. § 4.86(b). The Board notes that the Veteran's hearing loss is not manifested by the exceptional patterns set forth in 38 C.F.R. § 4.85(a), (b). Accordingly, the alternative criteria do not apply. See 38 C.F.R. § 4.86. II. Analysis The Veteran asserts that his bilateral hearing loss entitled to a compensable disability rating prior to January 22, 2015, to a rating in excess of 10 percent from January 22, 2015 to October 26, 2016, and to a rating in excess of 20 percent from October 27, 2016, forward. The preponderance of the evidence shows that the criteria for increased ratings are not satisfied at any time during the appellate period. Prior to January 22, 2015 A December 2010 VA examination report reflects a puretone threshold average of 46 decibels (dB) in the right ear, and 45 dB in the left ear. Speech recognition scores were 96 percent in the right ear, and 92 percent in the left ear. A June 2014 VA examination report reflects a puretone threshold average of 51 dB in the right ear, and 54 dB in the left ear. Speech recognition testing yielded scores of 86 percent for both ears. VA audiological evaluations conducted in October 2010 and February 2012 have been associated with the claims file. However, while the reports demonstrate puretone threshold testing, the speech recognition scores report clearly indicate that they were from the CIDW-22 speech recognition test. See October 2010 Audiological Evaluation; February 2012 Audiological Evaluation. As the Maryland CNC controlled speech test was not used, as is required for rating a hearing loss disability under 38 C.F.R. § 4.85, these evaluations are invalid for rating purposes. A November 2011 private audiogram from Island Better Hearing reflects a puretone threshold average of 41 dB in the right ear and 43 in the left ear. Speech recognition scores were 96 percent bilaterally. A February 2014 VA audiological evaluation reflects a puretone threshold average of 46 dB in the right ear and 48 in the left ear. Speech recognition scores were 84 percent in the right ear and 80 percent in the left ear. It is unclear as to whether the speech recognition scores were obtained using the Maryland CNC controlled speech test in either audiogram. The U.S. Court of Appeals for Veterans Claims (Court) has held that when a private examination report "reasonably appears" to contain information necessary to properly decide a claim but is "unclear" or "not suitable for rating purposes," and the information reasonably contained in report otherwise cannot be obtained, VA has a duty to either (1) ask the private examiner to clarify the report, (2) request that the claimant obtain the necessary information or clarify the report, or (3) explain why such clarification is not needed. See Savage v. Shinseki, 24 Vet. App. 259, 270 (2011). The Board finds that clarification of either report is not required. In this regard, if the speech recognition scores were obtained using the Maryland CNC controlled speech test, then the corresponding results would be a noncompensable rating. On the other hand, if the scores were obtained using another controlled speech test, the results would be invalid for rating purposes. See 38 C.F.R. § 4.85. Prior to January 22, 2015, the applicable examination reports show that the highest puretone threshold average for the right ear was 51 dB. The lowest speech recognition score was 86 percent. Applying these values to Table VI results in a numeric designation of II for the right ear. The highest puretone average for the left ear was 54 dB. The lowest speech recognition score was 86 percent. Applying these values to Table VI results in a designation of II for the left ear. The point where designations IV and VIII intersect on Table VII yields a 0 percent, or noncompensable, rating. Accordingly, a compensable rating prior to January 22, 2015 is not warranted. From January 22, 2015 to October 26, 2016 An April 2016 rating decision increased the Veteran's disability rating for bilateral hearing loss to 10 percent. In reaching this decision, the RO relied on a January 2015 private audiogram from Smithtown Hearing Services and August 2015 VA audiological evaluation. See April 2016 Rating Decision. Neither audiogram included speech recognition scores using the Maryland CNC controlled speech test. See August 2015 VA Audiological Evaluation (marking CIDW-22 as the speech recognition test); February 2016 Report of General Information (noting a Maryland CNC test was not performed at Smithtown Hearing Services). The Board will not disturb the RO's findings. However, the findings for this period do not support a rating in excess of 10 percent. From October 27, 2016, forward An October 2016 VA examination report reflects a puretone threshold average of 54 dB in the right ear, and 55 dB in the left ear. Speech recognition scores were 80 percent in the right ear, and 50 percent in the left ear. A January 2017 VA examination report reflects a puretone threshold average of 51 dB in the right ear, and 58 dB in the left ear. Speech recognition scores were 92 percent in the right ear, and 48 percent in the left ear. The above examination reports show that the highest puretone threshold average for the right ear was 54 dB. The lowest speech recognition score was 80 percent. Applying these values to Table VI results in a numeric designation of IV for the right ear. The highest puretone average for the left ear was 58 dB. The lowest speech recognition score was 48 percent. Applying these values to Table VI results in a designation of VIII for the left ear. The point where designations IV and VIII intersect on Table VII yields a 20 percent rating. Accordingly, a rating in excess of 20 percent from October 27, 2016, forward, is not warranted. Finally, the Board has considered the Veteran's statements regarding his difficulties with hearing and communicating due to his hearing loss. The Board does not doubt that his hearing loss causes considerable challenges. The Board sincerely empathizes with the Veteran, but is bound to apply the applicable rating criteria. For the reasons explained above, the criteria for higher evaluations are not satisfied. The functional effects of the Veteran's difficulty hearing and understanding speech in various contexts are contemplated by the rating schedule. See Doucette, 28 Vet. App. at 369, 371. ORDER Entitlement to an initial compensable rating for bilateral hearing loss prior to January 22, 2015 is denied. Entitlement to a rating in excess of 10 percent for bilateral hearing loss from January 22, 2015 to October 26, 2016 is denied. Entitlement to a rating in excess of 20 percent for bilateral hearing loss from October 27, 2016, forward, is denied. ____________________________________________ P. M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs