Citation Nr: 18145492 Decision Date: 10/29/18 Archive Date: 10/29/18 DOCKET NO. 09-00 130A DATE: October 29, 2018 ORDER Entitlement to a disability rating for bilateral hearing loss in excess of 30 percent prior to June 5, 2009 is denied. Entitlement to a disability rating for bilateral hearing loss of 40 percent, but no higher, from June 5, 2009 to January 27, 2011 is granted. Entitlement to a disability rating for bilateral hearing loss in excess of 70 percent from January 27, 2011 to March 4, 2011 is denied. Entitlement to a disability rating for bilateral hearing loss in excess of 40 percent from March 4, 2011 to October 6, 2014 is denied. Entitlement to a disability rating for bilateral hearing loss of 60 percent, but no higher, from October 6, 2014 to January 9, 2015 is granted. Entitlement to a disability rating for bilateral hearing loss of 80 percent, but no higher, from January 9, 2015 to January 31, 2018 is granted. Entitlement to a disability rating for bilateral hearing loss in excess of 90 percent from January 31, 2018 is denied. FINDINGS OF FACT 1. Prior to June 5, 2009, the Veteran had no worse than Level VI hearing loss in the right ear and Level VII hearing loss in the left ear. 2. From June 5, 2009 to January 27, 2011, the Veteran had no worse than Level VII hearing loss in the right ear and Level VIII hearing loss in the left ear. 3. From January 27, 2011 to March 4, 2011, the Veteran had no worse than Level VIII hearing loss in the right ear and Level XI hearing loss in the left ear. 4. From March 4, 2011 to October 6, 2014, the Veteran had no worse than Level VII hearing loss in the right ear and Level VII hearing loss in the left ear. 5. From October 6, 2014 to January 9, 2015, the Veteran had no worse than Level IX hearing loss in the right ear and Level IX hearing loss in the left ear. 6. From January 9, 2015 to January 31, 2018, the Veteran had no worse than Level IX hearing loss in the right ear and Level XI hearing loss in the left ear. 7. From January 31, 2018, the Veteran had no worse than Level X hearing loss in the right ear and Level XI hearing loss in the left ear. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 30 percent for bilateral hearing loss prior to June 5, 2009 have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.85, Diagnostic Code 6100, 4.86. 2. The criteria for a rating of 40 percent, but no higher, for bilateral hearing loss from June 5, 2009 to January 27, 2011 have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.85, Diagnostic Code 6100, 4.86. 3. The criteria for a rating in excess of 70 percent for bilateral hearing loss from January 27, 2011 to March 4, 2011 have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.85, Diagnostic Code 6100, 4.86. 4. The criteria for a rating in excess of 40 percent for bilateral hearing loss from March 4, 2011 to October 6, 2014 have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.85, Diagnostic Code 6100, 4.86. 5. The criteria for a rating in excess of 60 percent, but no higher, for bilateral hearing loss from October 6, 2014 to January 9, 2015 have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.85, Diagnostic Code 6100, 4.86. 6. The criteria for a rating of 80 percent, but no higher, for bilateral hearing loss from January 9, 2015 to January 31, 2018 have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.85, Diagnostic Code 6100, 4.86. 7. The criteria for a rating in excess of 90 percent for bilateral hearing loss from January 31, 2018 have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.85, Diagnostic Code 6100, 4.86. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1965 to September 1969. The Veteran testified before the undersigned Veterans Law Judge in an October 2010 travel Board hearing. The transcript is of record. 1. Entitlement to an increased rating for bilateral hearing loss Prior to this decision, the Veteran was rated for his bilateral hearing loss as 30 percent disabled prior to January 27, 2011; 70 percent disabled from January 27, 2011 to March 4, 2011; 40 percent disabled from March 4, 2011 to January 31, 2018; and 90 percent disabled from January 31, 2018. The Veteran, through his representative, contends that he should receive an increased rating of 60 percent from October 6, 2014 and an increased rating of 100 percent from October 13, 2017. On review, and resolving all doubt in his favor, the Board finds that the Veteran is entitled to a 30 percent rating prior to June 5, 2009; a 40 percent rating from June 5, 2009 to January 27, 2011; a 70 percent rating January 27, 2011 to March 4, 2011; a 40 percent rating from March 4, 2011 to October 6, 2014; a 60 percent rating from October 6, 2014 to January 8, 2015; an 80 percent rating from January 8, 2015 to January 31, 2018; and a 90 percent rating thereafter. Evaluation of bilateral hearing loss is governed by 38 C.F.R. § 4.85 including Table VI, Table VIA, and Table VII. Where, as here, the puretone threshold values at each of 1000, 2000, 3000, and 4000 Hertz is 55 decibels or greater, the higher value from either Table VI or Table VIA will be used. 38 C.F.R. § 4.86. Each ear is evaluated independently under each table. Id. The higher designations from each ear are then combined in Table VII to obtain the schedular rating. This case includes several different examinations by both VA and private practitioners. The following table summarizes those examinations. Date of Examination Right Ear Average Left Ear Average Right Ear Speech Recognition Left Ear Speech Recognition November 13, 2006 78 78 96 92 January 11, 2008 91 90 44* 20 February 8, 2008 80* 86* 96 48 March 3, 2008 71 78 92 82 June 5, 2009 80* 83* 92 88 August 27, 2009 82* 87* 76 12 January 27, 2011 89 88 72 20 March 4, 2011 81 81 90 60 September 18, 2012 83 86 N/A N/A April 18, 2013 83* 86* N/A N/A October 6, 2014 93 91 N/A N/A January 9, 2015 91 87 72 20 January 18, 2017 93 108 N/A N/A September 27, 2017 95 96 N/A N/A January 31, 2018 98 95 56 18 The stated averages are the averaged puretone thresholds for the 1000, 2000, 3000, and 4000 Hertz values. Stars next to averages indicate that the audiograms were missing the 3000 Hertz measurement and are therefore incomplete averages. The star next to the speech recognition value will be explained further below. Speech recognition scores reported as “N/A” either were not performed or were performed with something other than the Maryland CNC word list required by 38 C.F.R. § 4.85. The September 27, 2017 examination is listed as N/A because it was not performed with the Maryland CNC word list. This is contrary to the contentions of the Veteran’s representative, but the examination directly reported that it used the Nu 6 word list. In addition, although the Board cannot make its own expert medical opinions, it is the Board’s responsibility to weigh evidence from different medical sources. The Veteran’s audiometry tests over time do not yield consistent results, but these results are based on the opinions and skill of the medical professional administering the test. Weighing different opinions is within the core function of the Board and doing so is not the same as rendering a medical opinion. A remand for further testing is also not required as it would not provide probative evidence. An examination could measure the Veteran’s current hearing, but his hearing has worsened over time. A current examination will not clarify what the Veteran’s hearing was before it worsened. Considering the evidence as a whole, the Veteran’s hearing is characterized by puretone thresholds averaging at least 70 decibels (dB) starting in 2006 that worsened into the 80 dB and then the 90 dB ranges, where they are currently. His speech recognition has consistently been better in the right ear, although both worsened significantly between 2011 and 2015. A VA examiner explained in March 2018 that this worsening was to be expected as the result of unrelated surgery. 1. Hearing Loss Prior to June 5, 2009 The Veteran’s hearing examinations before June 5, 2009 report widely differing values. The November 2006 and March 2008 examinations reported average puretone thresholds in the 70 dB range and speech recognition scores in the 80s and 90s. By contrast, the January 2008 and February 2008 examinations reported average puretone thresholds in the 80 and 90 dB ranges and speech recognition scores from 20 to 96 percent. The January 2008 examination’s right ear speech recognition score has been an issue in prior Board decisions. This score is significantly lower than the surrounding right ear speech recognitions scores. VA obtained an opinion about this difference in August 2014. The examiner at that time opined that the January 2008 results was invalid. As the examiner explained, the January 2008 examination performed the speech recognition test at only 75 dB. This relatively quiet sound level, which was lower than the measured average puretone threshold in that ear and contemporaneous speech recognition tests, skewed the speech recognition results. Considering the opinion and rationale of the VA examiner, together with the much higher contemporaneous recognition scores, the Board concludes that the 44% was not indicative of the Veteran’s actual speech recognition at that time. Taking the evidence from these periods together, the Board weighs the November 2006 and March 2008 examination results more heavily than the January 2008 and February 2008 results. Both the January 2008 and February 2008 examinations utilized methodologies that render their results questionable. As discussed above, the January examination did not properly adjust sound levels. The February examination did not measure all of the frequencies required by regulation to provide an average threshold. The November 2006 and March 2008 examinations, on the other hand, did not suffer from these defects. As the November 2006 and March 2008 examinations used methodology in line with the regulations and are consistent with each other, these examinations will be relied most strongly upon. The November and March examinations agree that the Veteran’s left ear average puretone threshold should be 78 dB. This corresponds to a Table VIA designation of VII. A higher designation is not available from Table VI as the Veteran’s speech recognition scores from November 2006 and March 2008 were too high. The two examinations did not report the same average puretone threshold values for the right ear. The earlier examination was the higher threshold, however. The record does not indicate, and the Veteran has not alleged, that his hearing improved from the earlier examination to the later. It is most likely that the Veteran’s right ear average puretone threshold remained approximately the same during this period and was somewhere between the two measured values. The right ear designation depends on where between the two reported values the Veteran’s actual average puretone threshold lied. The March 2008 examination reported a 71 dB threshold. The November 2006 examination reported 78 dB. The cutoff between designations VI and VII is 77 dB. Although the exact threshold value is unknown, it is more likely than not that it is below 77 dB because the more recent value is much less than 77 dB whereas the older value is only one above it. The Veteran’s right ear is best represented by a designation of VI. Designations VII and VI combine via Table VII to a rating of 30 percent. A rating in excess of 30 percent is not warranted for this period. 2. Hearing Loss from June 5, 2009 to January 27, 2011 and from March 4, 2011 to October 6, 2014 The Veteran’s average puretone thresholds for his right ear for this period were below 84 dB. These correspond to a Table VIA designation of VII. The Veteran’s average puretone thresholds for his left ear were below 91 dB. These correspond to a Table VIA designation of VIII. The Veteran’s August 2009 speech recognition results could support a higher Table VI designation, but the results are not credited. The results were not only directly and dramatically contradicted by the June 2009 results, but they were also worse than every single speech recognition score to this day, despite the Veteran’s worsening hearing. The examination as a whole also did not follow the regulations as they omitted the required threshold measurement at 3000 Hertz. The August 2009 examination does not warrant a higher a designation. The remaining examinations’ combined threshold and speech recognition results would not result in a higher Table VI designation. Table VII provides that a rating higher than 40 percent requires designations higher than VIII and VII. The Veteran’s bilateral hearing loss was best characterized during this period by a designation of either VII or VIII and a designation of VII. As these correspond to a 40 percent disability rating in Table VII, a 40 percent rating, but no more, is appropriate. 3. Hearing Loss from January 27, 2011 to March 4, 2011 The results from the January 27, 2011 examination corresponded to designations of VIII and XI, which combine to a 70 percent disability rating. The Veteran’s hearing before and after this examination was measured to be significantly better than the January 2011 examination. As the evidence does not indicate that the Veteran’s hearing worsened and then improved during this period, it cannot be said that the Veteran’s hearing was at least as likely as not worse than the assigned 70 percent disability rating. A rating in excess of 70 percent is not warranted. 4. Hearing Loss from October 6, 2014 to January 9, 2015 An October 2014 examination reported that the Veteran’s hearing had worsened. The examination also noted a history of cholesteatoma. The measured 93 dB and 91 dB average puretone thresholds corresponded to two Table VIA designations of IX. A higher designation under Table VI is inappropriate without contemporary speech recognition scores using the Maryland CNC word list, which is not available. Two IX designations combine under Table VII to a 60 percent disability rating. 5. Hearing Loss from January 9, 2015 to January 31, 2018 The Veteran’s right ear average puretone thresholds for this period were all below 98 dB. These corresponded to a IX designation. A disability rating above 80 percent is not available under Table VII if the better ear has a designation of IX. The Veteran’s left ear had a designation of XI due to (1) the Veteran’s January 2015 examination speech recognition score of 20 percent, and (2) his January 2017 examination average puretone threshold of more than 105 dB. Although the Veteran’s September 2017 examination did not provide an acceptable speech recognition score, the absence of a score in this instance does not mean that the Veteran’s speech recognition had improved. The Veteran had a reported 20% score in January 2015, and an 18% score in January 2018. It is at least as likely as not that the Veteran’s left ear speech recognition score was below the 32 percent required to correspond to a Table VI designation of XI. As the Veteran has a designation of IX and XI, an 80 percent disability rating is appropriate. 6. Hearing Loss from January 31, 2018 The Veteran has been rated 90 percent disabled from January 31, 2018. A higher rating is only available for two XI designations. Although the Veteran’s left ear warrants an XI designation, the Veteran’s right ear does not. Neither then January 2018 examination, nor any other examination, measured an average puretone threshold in excess of 104 dB or a speech recognition score less than 33 percent. Without satisfying at least one of these measures, a designation of XI is not appropriate under either Table VI or Table VIA. A rating in excess of 90 percent is not warranted. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Paul Saindon, Associate Counsel