Citation Nr: 18141037 Decision Date: 10/09/18 Archive Date: 10/09/18 DOCKET NO. 16-23 071 DATE: October 9, 2018 ORDER A compensable disability rating for bilateral hearing loss for the period prior to February 24, 2014, is denied. The Board having determined a 10 percent rating is warranted for the Veteran’s bilateral hearing loss for the period from February 24, 2014, to February 18, 2015, the benefit sought on appeal is granted to this extent, subject to the criteria applicable to the payment of monetary benefits. A rating higher than 10 percent for bilateral hearing loss for the period beginning February 19, 2015, is denied. FINDINGS OF FACT 1. For the period prior to February 24, 2014, the Veteran’s hearing impairment was no worse than a Level II in the right ear and a Level II in the left ear. 2. For the period beginning February 24, 2014, the Veteran’s hearing impairment was no worse than a Level IV in the right ear and Level III in the left ear. CONCLUSION OF LAW 1. The criteria for a compensable disability rating for bilateral hearing loss for the period prior to February 24, 2014, were not met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.85, Diagnostic Code (DC) 6100 (2017). 2. The criteria for a 10 percent rating for bilateral hearing loss, but not higher, for the period between February 24, 2014, and February 18, 2015, were met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.85, DC 6100 (2017). 3. The criteria for a rating higher than 10 percent for bilateral hearing loss for the period beginning February 19, 2015, have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.85, DC 6100 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Introduction The Veteran served on active duty in the United States Army from February 1972 to January 1975. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a May 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. In the May 2014 decision on appeal, a previously-assigned noncompensable rating for bilateral hearing loss was continued. During the pendency of the claim, in an April 2018 decision, the rating was increased from noncompensable to 10 percent, effective February 19, 2015. The Veteran has not indicated he is satisfied with the rating assigned, and, as such, the issue remains on appeal. Legal Criteria Disability evaluations are determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2017). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.321(a), 4.1 (2017). Disability ratings for a hearing loss disability are derived from 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 schedule establishes 11 auditory hearing acuity levels based upon average puretone thresholds and speech discrimination. See 38 C.F.R. § 4.85 (2017). An examination for hearing impairment for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a puretone audiometry test. Examinations will be conducted without the use of hearing aids. 38 C.F.R. § 4.85(a) (2017). Table VI, “Numeric Designation of Hearing Impairment Based on Puretone Threshold Average and Speech Discrimination,” is used to determine a Roman numeral designation (I through XI) for hearing impairment based on a combination of the percent of speech discrimination (horizontal rows) and the puretone threshold average (vertical columns). The Roman numeral designation is located at the point where the row and column intersect. 38 C.F.R. § 4.85(b) (2017). Table VIa, “Numeric Designation of Hearing Impairment Based Only on Puretone Threshold Average,” is used to determine a Roman numeral designation (I through XI) for hearing impairment based only on puretone threshold average. Table VIa is used when the examiner certifies that the use of the speech discrimination test is not appropriate due to language difficulties, inconsistent speech discrimination scores, etc., or when indicated under the provisions of § 4.86. 38 C.F.R. § 4.85(c) (2017). “Puretone threshold average” as used in Tables VI and VIa is the sum of the puretone thresholds at 1000, 2000, 3000 and 4000 Hertz and divided by four. This average is used in all cases (including those under § 4.86) to determine a Roman numeral designation from Tables VI and VIa. 38 C.F.R. § 4.85(d) (2017). Table VII, “Percentage Evaluations of Hearing Impairment,” is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment in each ear. The horizontal rows represent the ear having the better hearing and the vertical columns represent the ear having the poorer hearing. The percentage evaluation is located at the point where the row and the column intersect. 38 C.F.R. § 4.85(e) (2017). Provisions for evaluating exceptional patterns of hearing impairment are as follows: (a) When the puretone thresholds at each of the four specified frequencies (1000, 2000, 3000 and 4000 Hertz) are 55 decibels or more, 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. Each ear will be evaluated separately; (b) When the puretone thresholds are 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; the numeral will then be elevated to the next higher Roman numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86 (2017). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2017); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Background and Analysis By way of background, service connection for bilateral hearing loss was granted in a June 2012 rating decision, and a noncompensable evaluation was assigned. The Veteran did not appeal the decision. In February 2014, the Veteran filed the present claim for an increased rating. In response to his claim, the Veteran was afforded a VA audiological examination in May 2014. On examination, puretone thresholds were as follows: HERTZ 1000 2000 3000 4000 RIGHT 35 40 55 60 LEFT 35 40 50 55 Speech discrimination was 88 percent in the right ear and 84 percent in the left ear. The examiner diagnosed bilateral sensorineural hearing loss. Applying the values above to Table VI results in a Level II Roman numeral designation for the right ear and a Level II Roman numeral designation for the left ear. Application of a Level II designation and a Level II designation to Table VII results in a noncompensable rating. In addition, the readings reported in this evaluation do not meet the requirements for evaluation as an exceptional pattern of impairment under 38 C.F.R. § 4.86 (2017). The Veteran was afforded an additional VA audiological examination in April 2018. On examination, puretone thresholds were as follows: HERTZ 1000 2000 3000 4000 RIGHT 30 25 45 50 LEFT 30 25 35 50 Speech discrimination was 68 percent in the right ear and 80 percent in the left ear. The examiner diagnosed bilateral sensorineural hearing loss. Applying the values above to Table VI results in a Level IV Roman numeral designation for the right ear and a Level III Roman numeral designation for the left ear. Application of a Level IV designation and a Level III designation to Table VII results in a 10 percent rating. In addition, the readings reported in this evaluation do not meet the requirements for evaluation as an exceptional pattern of impairment under 38 C.F.R. § 4.86 (2017). The Court has held that, “in addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in his or her final report.” Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). In this regard, the Board observes the May 2014 and April 2018 VA examiners noted the Veteran’s reports of difficulty understanding conversations, especially with background noise. Upon review, the Board again notes that in an April 2018 decision, the RO increased the Veteran’s bilateral hearing loss rating from noncompensable to 10 percent, effective February 19, 2015. The 10 percent rating was granted based upon the April 2018 VA examination results detailed above. In its decision, the RO stated it was assigning the effective date of the 10 percent rating based upon the date the Veteran’s claim for an increased rating was received. A review of the record shows, however, that the Veteran’s increased rating claim was received by VA on February 24, 2014, not in February 2015. As such, the Board finds that a 10 percent rating is warranted for the Veteran’s bilateral hearing loss beginning February 24, 2014, the date on which he first indicated his hearing loss had worsened. However, upon a review of the evidence, to include July 2010 audiogram results provided by the Social Security Administration, which were referenced by the Veteran in his substantive appeal, it is clear that the criteria for a compensable rating under Diagnostic Code 6100 were not met prior to February 24, 2014. Although the audiological evaluations clearly show the Veteran had hearing loss during this period, the hearing loss did not meet the criteria for a compensable evaluation under the rating schedule. Thus, the Board finds a compensable rating for bilateral hearing loss is not warranted prior to February 24, 2014. In addition, a comprehensive review of the record shows the criteria for a rating higher than 10 percent have not been met at any time during the period of the claim. Thus, the Board finds a rating higher than 10 percent for the Veteran’s bilateral hearing loss for the period beginning February 24, 2014, is not warranted. (Continued on the next page)   In reaching its conclusions, the Board has duly considered the benefit-of-the-doubt doctrine, and has applied it where indicated. T. REYNOLDS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Hampton, Associate Counsel