Citation Nr: 18144772 Decision Date: 10/25/18 Archive Date: 10/25/18 DOCKET NO. 16-28 732 DATE: October 25, 2018 ORDER Entitlement to an initial compensable rating for bilateral hearing loss prior to March 1, 2016, is denied. Entitlement to an initial disability rating of 10 percent, but no higher, for bilateral hearing loss for the period after March 1, 2016, is granted. FINDINGS OF FACT 1. For the period prior to March 1, 2016, the Veteran’s bilateral hearing loss has been manifested by audiometric examinations results equivalent to a level II for the right ear, and a level I for the left ear, and no greater. 2. For the period after March 1, 2016, the Veteran’s bilateral hearing loss has been manifested by audiometric examinations results equivalent to a level IV for the right ear, and a level III for the left ear, and no greater. CONCLUSIONS OF LAW 1. The criteria for an initial compensable evaluation for bilateral hearing loss prior to March 1, 2016 have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1, 4.7, 4.85, Diagnostic Code 6100 (2017). 2. The criteria for an initial evaluation of 10 percent, and no greater, for bilateral hearing loss for the period after March 1, 2016 have been met. 38 U.S.C. § 1155 (2012); 38 U.S.C. § 3.400 (o); 38 C.F.R. § 4.1, 4.7, 4.85, Diagnostic Code 6100 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1972 to July 1994. This case is before the Board of Veterans’ Appeals (Board) on appeal from a July 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO), which granted service connection for bilateral hearing loss and assigned 0 percent (noncompensable) disability. The Veteran contends that he is entitled to compensable rating for his service-connected bilateral hearing loss. Legal Criteria for Increased Ratings: Bilateral Hearing Loss A disability rating is determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule). See generally 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can practicably be 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. See 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2017). Separate diagnostic codes identify the various disabilities. 38 C.F.R. § 4.27 (2017). Where there is a question as to which of two ratings to apply, VA will assign the higher rating if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. § 4.7 (2017). Otherwise, it will assign the lower rating. Id. Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). Hearing loss is rated under the criteria of 38 C.F.R. § 4.85, Diagnostic Code 6100. Evaluations of defective hearing are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). Evaluation for defective hearing are based upon organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests, along with the average hearing threshold level as measured by puretone audiometric tests in the frequencies of 1000, 2000, 3000, and 4000 Hertz. 38 C.F.R. § 4.85, Tables VI, VII (2017). To evaluate the degree of disability for service-connected bilateral hearing loss, the rating schedule established eleven auditory acuity levels, designated from level I for essentially normal acuity, through level XI for profound deafness. Table VI is used to determine the Roman numeric designation, based on test results consisting of puretone thresholds and controlled speech discrimination (Maryland CNC) test scores. Id. The numeric designations are then applied to Table VII to determine the appropriate rating for hearing impairment. Id. Exceptional patterns of hearing impairment, which cannot always be accurately assessed under the standards of 38 C.F.R. § 4.85, may be evaluated under the provisions of 38 C.F.R. § 4.86. These provisions apply when either the puretone threshold at each of the four specified frequencies is 55 decibels or more, 38 C.F.R. § 4.86(a), or when the puretone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz. 38 C.F.R. § 4.86(b). If either of these provisions applies, each ear is evaluated separately. 38 C.F.R. § 4.86 (2017). The Roman numeral designation for the ear with an exceptional pattern of hearing impairment is derived from Table VI or VIa, whichever results in the higher numeral. 38 C.F.R. § 4.86(a) (2017). When 38 C.F.R. § 4.86(b) is applicable, the assigned numeral is elevated to the next higher Roman numeral. 38 C.F.R. § 4.86(b) (2017). Table VIa will also be applied when an examiner certifies that the use of the speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc. 38 C.F.R. § 4.85(c). When an examiner certifies that the use of the speech discrimination test is not appropriate for the evaluation due to language difficulties, inconsistent speech discrimination scores, etc. Roman numeral designation for hearing impairment will be based only on the puretone threshold average pursuant to Table VIa. 38 C.F.R. § 4.85 (c), Table VIA (2017). Facts and Analysis I. Initial Compensable Rating of Bilateral Hearing Loss Prior to March 1, 2016 In October 2010, the Veteran was afforded a VA audiological examination. Puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 25 15 45 65 LEFT 10 10 15 35 45 During the October 2010 VA examination, the average of the puretone thresholds findings at 1000, 2000, 3000, and 4000 Hertz was 38 decibels in the right ear, and 26 decibels in the left ear. The speech recognition scores were 96 percent for the right ear, and 100 percent for the left ear. Applying the October 2010 VA examination results to Table VI of the Rating Schedule results in a Roman numeric designation of Level I for the right ear, and Level I for the left ear. 38 C.F.R. § 4.85, Table IV (2017). Applying the Roman numeric designations to Table VII, the result is a noncompensable rating for the Veteran’s service-connected bilateral hearing loss. 38 C.F.R. § 4.85, Table VII, Diagnostic Code 6100 (2017). As puretone thresholds at each of the four specified frequencies were not 55 decibels or more in either ear, and the puretone thresholds at 1000 Hertz was not 30 decibels or less and at 2000 Hertz was not 70 decibels or more, an exceptional pattern of hearing impairment was not shown. Thus, findings on the October 2010 VA examination do not warrant consideration under 38 C.F.R. § 4.86. In March 2015, the Veteran was afforded another VA audiological examination. Puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 35 35 40 60 75 LEFT 30 35 40 55 70 During the March 2015 VA examination, the average of the puretone thresholds findings at 1000, 2000, 3000, and 4000 Hertz was 53 decibels in the right ear, and 50 decibels in the left ear. The speech recognition scores were 88 percent for the right ear, and 92 percent for the left ear. Applying the March 2015 VA examination results to Table VI of the Rating Schedule results in a Roman numeric designation of Level II for the right ear, and Level I for the left ear. 38 C.F.R. § 4.85, Table VI (2017). Applying the Roman numeric designations to Table VII, the result is a noncompensable rating for the Veteran’s service-connected bilateral hearing loss. 38 C.F.R. § 4.85, Table VII, Diagnostic Code 6100 (2017). As puretone thresholds at each of the four specified frequencies were not 55 decibels or more in either ear, and the puretone thresholds at 1000 Hertz was not 30 decibels or less and at 2000 Hertz was not 70 decibels or more, an exceptional pattern of hearing impairment was not shown. Thus, findings on the March 2015 VA examination do not warrant consideration under 38 C.F.R. § 4.86. After a review of all of the evidence of record, to include that set forth above, the Board finds that the Veteran’s bilateral hearing loss do not warrant an initial compensable rating. II. Increased Initial Rating of Bilateral Hearing Loss from March 1, 2016 In March 2016, the Veteran reported that his hearing loss has worsened. Later in the same month, the Veteran was afforded a VA audiological examination. Puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 35 35 50 70 80 LEFT 30 30 45 60 70 During the March 2016 VA examination, the average of the puretone thresholds findings at 1000, 2000, 3000, and 4000 Hertz was 59 decibels in the right ear, and 51 decibels in the left ear. The speech recognition scores were not recorded, and the VA examiner stated that the combined use of the puretone threshold average and word recognition scores is not appropriate because of the Veteran’s language difficulties, cognitive problems, inconsistent word recognition scores, etc. March 2016 VA examination, at 2. Also, the VA examiner opined that the Veteran’s speech discrimination abilities are not consistent with normative data based on puretone threshold averages, and the puretone thresholds should be used for rating purposes. Id., at 4. Here, consideration of 38 C.F.R. § 4.85(c) is warranted because the March 2016 VA examiner certified that the speech recognition test was inappropriate under the reasons set forth above. Accordingly, the Veteran’s puretone threshold averages may be applied to Table VIa of the Rating Schedule. 38 C.F.R. § 4.85 (c), Table VIa (2017). Applying the March 2016 VA examination results to Table VIa results in a Roman numeric designation of Level IV for the right ear, and Level III for the left ear. Applying the Roman numeric designations to Table VII, the result is a 10 percent disability rating for the Veteran’s service-connected bilateral hearing loss. 38 C.F.R. § 4.85, Table VII, Diagnostic Code 6100 (2017). The Veteran submitted three private audiometry reports from May 2012, September 2013, and January 2015. The May 2012 private report recorded the average of puretone threshold findings at 1000, 2000, 3000, and 4000 Hertz as 39 decibels in the right ear, and 25 decibels in the left ear. The September 2013 private report recorded the average of puretone threshold findings at 1000, 2000, 3000, and 4000 Hertz as 41 decibels in the right ear, and 30 decibels in the left ear. The January 2015 private report recorded the average of puretone threshold findings at 1000, 2000, 3000, and 4000 Hertz as 45 decibels in the right ear, and 38 decibels in the left ear. However, none of the above-mentioned private audiometry reports include Maryland CNC speech discrimination test scores, therefore, the Board cannot use them for rating purposes. See 38 C.F.R. § 4.85(a) (2017). The Board also has considered the statements from the Veteran and his wife P.H. regarding the functional impact of the bilateral hearing loss disability on his daily life. Disability ratings for hearing loss disability are strictly governed by the audiometric test results, regardless of the Veteran’s subjective experience with his disability, although functional impact, particularly on employment, is considered. The Veteran stated that his hearing loss disability is causing difficulties at his work as a postal worker since he finds it difficult to hear the beeping sounds of the scanning equipment. The Veteran’s wife stated that she has to repeat herself constantly while talking to the Veteran, and he misunderstands the words she says. She also stated that the volume on the TV and radio needs to be turned up higher than normal for the Veteran. However, the Board finds that these impairments do not result in more than the usual level of functional impairment in hearing given the level of disability shown here.   After a review of all of the evidence of record, to include that set forth above, the Board finds that the Veteran’s bilateral hearing loss disability warrants a 10 percent disability rating from March 1, 2016. 38 C.F.R. §§ 4.85, 4.300(o) (2017). MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Kim, Associate Counsel