Citation Nr: 18148937 Decision Date: 11/08/18 Archive Date: 11/08/18 DOCKET NO. 12-15 378 DATE: November 8, 2018 ORDER Entitlement to an evaluation in excess of 40 percent for the period from April 28, 2008, to August 29, 2013, for service-connected bilateral hearing loss is denied. Entitlement to an evaluation in excess of 50 percent for the period from August 30, 2013, to June 16, 2016, for service-connected bilateral hearing loss is denied. Entitlement to an evaluation in excess of 30 percent for the period from June 17, 2016, to September 4, 2017, for service-connected bilateral hearing loss is denied. FINDINGS OF FACT 1. For the period from April 28, 2008, to August 29, 2013, the Veteran’s service-connected bilateral hearing loss manifested in no worse than level VI in the right ear and level IX in the left ear or level VIII in the right ear and level VI in the left ear. 2. For the period from August 30, 2013, to June 16, 2016, the Veteran’s service-connected bilateral hearing loss manifested in no worse than level VIII in the right ear and level VI in the left ear. 3. For the period from June 17, 2016, to September 4, 2017, the Veteran’s service-connected bilateral hearing loss manifested in no worse than level VI in the right ear and level VII in the left ear. CONCLUSIONS OF LAW 1. The criteria for establishing an evaluation in excess of 40 percent for the period from April 28, 2008, to August 29, 2013, for service-connected bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.1-4.10, 4.85, 4.86, Diagnostic Code 6100. 2. The criteria for establishing an evaluation in excess of 50 percent for the period from August 30, 2013, to June 16, 2016, for service-connected bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.1-4.10, 4.85, 4.86, Diagnostic Code 6100. 3. The criteria for establishing an evaluation in excess of 30 percent for the period from June 17, 2016, to September 4, 2017, for service-connected bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.1-4.10, 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the United States Air Force from July 1950 to July 1954 and from March 1955 to March 1971. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2011 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). This case was previously before the Board in April 2014 and June 2017, when it was remanded for Agency of Original Jurisdiction (AOJ) development. The case has been returned to the Board for further appellate review. During the pendency of this appeal, a September 2016 rating decision granted the Veteran a 40 percent evaluation for bilateral hearing loss from April 28, 2008, to August 29, 2013, a 50 percent evaluation from August 30, 2013, to June 16, 2016, and a 30 percent evaluation beginning June 17, 2016. An August 2018 rating decision granted the Veteran a 100 percent evaluation for bilateral hearing loss, as well as special monthly compensation based on loss of hearing in both ears, beginning September 5, 2017. As the Veteran has not expressed satisfaction with the evaluations for the periods prior to September 5, 2017, the issue of entitlement to a higher rating for these periods remains on appeal. See A.B. v. Brown, 6 Vet. App. 35, 38 (1993) (a veteran is presumed to seek the maximum benefit permitted under the regulations). Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. When there is a question as to which of two ratings apply, VA will assign the higher of the two where the disability picture more nearly approximates the criteria for the next higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Disabilities must be viewed in relation to their entire history. 38 C.F.R. § 4.1. VA is required to interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability. 38 C.F.R. § 4.2. Any reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. VA is also required to evaluate functional impairment on the basis of lack of usefulness and the effects of the disabilities upon the claimant’s ordinary activity. 38 C.F.R. § 4.10; see generally Schafarth v. Derwinski, 1 Vet. App. 589 (1991). Evaluations for service-connected hearing loss range from noncompensable (0 percent) to 100 percent. These evaluations are based on organic impairment of hearing acuity as measured by the results of a controlled speech discrimination test, the Maryland CNC test, together with the average hearing threshold level measured by puretone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hertz). 38 C.F.R. § 4.85. Disability ratings for hearing loss are derived from a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). To evaluate the degree of disability from service-connected defective hearing, the rating schedule establishes eleven 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-VII, Diagnostic Code 6100. Hearing acuity levels are assigned using just the puretone audiometry tests only where the examiner certifies that use of the speech discrimination test is not appropriate due to language difficulties or inconsistent speech discrimination test scores, for instance, or where exceptional patterns of hearing impairment exist. 38 C.F.R. §§ 4.85(c), 4.86. An exceptional pattern of hearing impairment occurs when the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more, or where 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(a)-(b). In these circumstances, the hearing acuity level will be assigned using either Table VI or Table VIa, whichever yields the higher level. Id. 1. Entitlement to an evaluation in excess of 40 percent for the period from April 28, 2008, to August 29, 2013, for service-connected bilateral hearing loss The Veteran submitted a medical opinion written in April 2009 by a private audiologist, which noted the Veteran’s complaint of an increase in difficulty understanding conversation. The opinion letter did not include the audiometric testing results, but the audiologist reported that there was a drop of a few percentage points in the Veteran’s speech discrimination scores bilaterally as compared to his previous audiogram. The audiologist opined that the worsening in speech discrimination “is probably the biggest factor in his decrease in understanding.” In June 2008, the Veteran was afforded a VA audiological examination, at which the Veteran reported difficulty understanding the words in music, hearing the minister at church, on the bus, and when across the dinner table from someone. The audiogram returned the following puretone threshold results, in decibels: HERTZ 500 1000 2000 3000 4000 RIGHT 30 40 60 70 80 LEFT 40 50 70 80 90 The average puretone threshold was 62.5 decibels in the right ear and 72.5 decibels in the left ear. The Maryland CNC test revealed speech recognition ability of 62 percent in the right ear and of 36 percent in the left ear. Applying these results to Table VI yields a finding of level VI hearing loss in the right ear and level IX hearing loss in the left ear. See 38 C.F.R. § 4.85(d). Where hearing loss is at level VI in the better ear and level IX in the poorer ear, a 40 percent disability evaluation is assigned under Table VII. 38 C.F.R. § 4.85(e). In September 2009, the Veteran had another VA audiological examination, at which he reported difficulty hearing conversation in a group or when there is background noise, or if the speaker is at a distance from him. The audiogram returned the following puretone threshold results, in decibels: HERTZ 500 1000 2000 3000 4000 RIGHT 30 40 60 70 80 LEFT 40 45 65 80 85 The average puretone threshold was 62.5 decibels in the right ear and 68.75 decibels in the left ear. The Maryland CNC test revealed speech recognition ability of 76 percent in the right ear and of 52 percent in the left ear. Applying these results to Table VI yields a finding of level IV hearing loss in the right ear and level VIII hearing loss in the left ear. See 38 C.F.R. § 4.85(d). Where hearing loss is at level IV in the better ear and level VIII in the poorer ear, a 20 percent disability evaluation is assigned under Table VII. 38 C.F.R. § 4.85(e). In February 2010, the Veteran underwent a private audiological examination, which returned the following puretone threshold results, in decibels: HERTZ 500 1000 2000 3000 4000 RIGHT 40 45 65 70 80 LEFT 40 50 70 75 80 The average puretone threshold was 65 decibels in the right ear and 68.75 decibels in the left ear. The audiologist performed a speech discrimination test, which revealed speech recognition ability of 80 percent in the right ear and of 72 percent in the left ear, but this testing was later determined not to have been using the Maryland CNC protocol. Applying these results to Table VI yields a finding of level IV hearing loss in the right ear and level VI hearing loss in the left ear. See 38 C.F.R. § 4.85(d). Where hearing loss is at level IV in the better ear and level VI in the poorer ear, a 20 percent disability evaluation is assigned under Table VII. 38 C.F.R. § 4.85(e). In February 2011, the Veteran was afforded another VA audiological examination, which returned the following puretone threshold results, in decibels: HERTZ 500 1000 2000 3000 4000 RIGHT 45 45 65 85 85 LEFT 45 45 65 85 70 The average puretone threshold was 66.25 decibels in the right ear and 70 decibels in the left ear. The Maryland CNC test revealed speech recognition ability of 44 percent in the right ear and of 72 percent in the left ear. Applying these results to Table VI yields a finding of level VIII hearing loss in the right ear and level VI hearing loss in the left ear. See 38 C.F.R. § 4.85(d). Where hearing loss is at level VI in the better ear and level VIII in the poorer ear, a 40 percent disability evaluation is assigned under Table VII. 38 C.F.R. § 4.85(e). In June 2012, the Veteran’s hearing was checked at an annual audiology visit; however, the results were not reported in the Veteran’s VA treatment records. The audiologist noted that the hearing thresholds had remained stable compared to results from the February 2011 VA examination. No other audiograms are of record during this period. As there is no evidence of record showing that the service-connected bilateral hearing loss was measured to be more severe than the criteria for a 40 percent evaluation, an evaluation in excess of 40 for bilateral hearing loss prior to August 30, 2013, is not warranted.   2. Entitlement to an evaluation in excess of 50 percent for the period from August 30, 2013, to June 16, 2016, for service-connected bilateral hearing loss In August 2013, the Veteran was afforded a VA audiological examination, which returned the following puretone threshold results, in decibels: HERTZ 500 1000 2000 3000 4000 RIGHT 40 65 90 95 100 LEFT 45 55 80 90 95 The average puretone threshold was 87.5 decibels in the right ear and 80 decibels in the left ear. The Maryland CNC test revealed speech recognition ability of 60 percent in the right ear and of 68 percent in the left ear. Applying these results to Table VI yields a finding of level VIII hearing loss in the right ear and level VI hearing loss in the left ear. See 38 C.F.R. § 4.85(d). Where hearing loss is at level VI in the better ear and level VIII in the poorer ear, a 40 percent disability evaluation is assigned under Table VII. 38 C.F.R. § 4.85(e). In January 2014, the Veteran had his hearing checked at a VA audiology visit. The results revealed a notable change in the Veteran’s lower frequency thresholds, but the audiologist noted excessive cerumen that could explain the change. After the cerumen was cleared, a re-check audiogram returned the following puretone threshold results, in decibels: HERTZ 500 1000 2000 3000 4000 RIGHT 40 55 75 85 90 LEFT 50 55 85 85 90 The average puretone threshold was 76.25 decibels in the right ear and 78.75 decibels in the left ear. There was no Maryland CNC testing performed at this follow-up appointment. Table VIa applies here, as each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or greater. Applying these results to Table VIa yields a finding of level VI hearing loss in the right ear and level VII hearing loss in the left ear. See 38 C.F.R. § 4.86. Where hearing loss is at level VI in the better ear and level VII in the poorer ear, a 30 percent disability evaluation is assigned under Table VII. 38 C.F.R. § 4.85(e). No other audiograms are of record during this period. As there is no evidence of record showing that the service-connected bilateral hearing loss was measured to be more severe than the criteria for a 50 percent evaluation, an evaluation in excess of 50 percent for bilateral hearing loss for the period from August 30, 2013, to June 16, 2016, is not warranted. 3. Entitlement to an evaluation in excess of 30 percent for the period from June 17, 2016, to September 4, 2017, for service-connected bilateral hearing loss In June 2016, the Veteran was afforded another VA audiological examination, which returned the following puretone threshold results, in decibels: HERTZ 500 1000 2000 3000 4000 RIGHT 40 50 65 65 90 LEFT 45 55 80 80 85 The average puretone threshold was 67.5 decibels in the right ear and 75 decibels in the left ear. The Maryland CNC test revealed speech recognition ability of 68 percent in the right ear and of 64 percent in the left ear. Applying these results to Table VI yields a finding of level VI hearing loss in the right ear and level VII hearing loss in the left ear. See 38 C.F.R. § 4.85(d). Where hearing loss is at level VI in the better ear and level VII in the poorer ear, a 30 percent disability evaluation is assigned under Table VII. 38 C.F.R. § 4.85(e). No other audiograms are of record during this period. Accordingly, as there is no competent evidence during this period indicating hearing loss worse than level VI in the right ear and level VII in the left ear, the 30 percent evaluation for bilateral hearing loss for this period is appropriate. M. HYLAND Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Josey, Associate Counsel