Citation Nr: 18155762 Decision Date: 12/06/18 Archive Date: 12/06/18 DOCKET NO. 08-35 055 DATE: December 6, 2018 ORDER An increased rating decision for bilateral hearing loss in excess of 30% disabling prior to May 16 2017 is denied, and a 40% rating, but not greater, is granted from November 9, 2015 to May 16, 2017. An increased rating decision for bilateral hearing loss in excess of 70% disabling from May 16, 2017, is denied. FINDING OF FACT 1. The evidence is against finding that the Veteran qualified for a disability rating higher than 30% prior to November 9, 2015, but is in favor of granting a 40% rating between November 9, 2015 and May 16, 2017. A rating in excess of 40% disabling between November 9, 2015 and May 16, 2017 is not warranted. 2. The evidence is against finding that the Veteran qualifies for a disability rating higher than 70% from May 16, 2017, because the competent and probative evidence shows hearing loss no worse than Level XI in the left ear and no worse than Level VIII in the right ear. CONCLUSION OF LAW 1. The criteria for a rating decision in excess of 30% disabling prior to November 9, 2015 are not met. The criteria for a rating decision of 40% disabling, but not greater, are met between November 9, 2015 and May 16, 2017. 38 C.R.F. § 4.85-87 (2017); DC 6100. 2. The criteria for a rating of more than 70% disabling, from May 16, 2017, are not met. 38 C.R.F. § 4.85-87 (2017); DC 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably from October 1967 to October 1969. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a June 2006 rating decision and a September 2017 rating decision issued by the Department of Veteran’s Affairs (VA) Regional Office (RO). The Veteran was given a 30% rating for bilateral hearing loss effective March 2006. The Veteran was later given an evaluation of 70% effective May 2017 after a September 2017 claim for an increased rating. The Veteran contends that the 70% rating should be effective prior to May 2017 because he experienced more severe hearing loss symptoms earlier than 2017. The Veteran contends in several VA examinations that his bilateral hearing loss has interfered with his daily life for many years, and that he had to stop working back in 2001 in part due to trouble hearing. In 2014, the Veteran requested to be excused from jury duty due to his hearing problems. In a February 2016 VA examination, the Veteran reported having trouble hearing on the phone. The Veteran reported being unable to hear in group therapy sessions for PTSD treatment. He is competent to report these symptoms, and the Board finds him credible as the statements on this point are detailed and consistent. Jandreau, 492 F.3d at 1377. 1. Bilateral hearing loss rated in excess of 30% disabling prior to November 9, 2015, is denied and a rating of 40% disabling, but not greater, between November 9, 2015 and May 16, 2017 is warranted. The evaluation for hearing loss is based on objective testing. In evaluating bilateral hearing loss, the severity of hearing loss is evaluated in each ear, and then those results are mechanically applied to Table VII in order to determine the appropriate overall rating for the disability. 38 C.F.R. § 4.85(a)-(b), (e), Table VI, Table VII. Disability ratings for hearing loss are assigned based on the results of controlled speech discrimination tests combined with the results of pure tone audiometry tests. 38 C.F.R. §§ 4.85-4.86. An examination must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test. 38 C.F.R. § 4.85(a). Further, disability ratings for hearing impairment are assigned through a structured formula, i.e., a mechanical application of the rating schedule to numeric designations that are assigned after audiometric evaluations have been rendered. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). The Veteran was given a 30% rating for bilateral hearing loss effective March 2006, after a rating decision dated June 2006 increased the rating from 10% to 30% disabling. Since that decision, the Veteran has been evaluated for an increased rating for bilateral hearing loss several times. Specifically, the Veteran was evaluated by a VA examiner in October 2011, February 2013, August 2016, and May 2017. He also had a hearing DBQ in January 2012, November 2015 and May 2017. The Veteran did not reach the criteria for a rating in excess of 30% on any of the given audiology examinations until November 9, 2015. After reviewing the relevant medical and lay evidence and applying the above laws and regulations, the Board finds that Veteran is not entitled to a rating in excess of 30% before the November 9, 2015 examination. All applicable tests included valid puretone and speech discrimination scores. As such, Table VI applies. 38 C.F.R. §§ 4.85-4.86. In November 2015, the Veteran was given an audiological examination by a VA audiologist, and recorded puretone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 AVERAGE RIGHT 55 70 80 80 71.25 LEFT 80 85 85 80 82.5 Speech audiometry revealed speech recognition ability of 66% in the right ear and 52% in the left ear. These results combine for a VIII in the left ear and VII in the right ear on Table VI. Roman numerals VIII and VI combine for a 40% rating in Table VII. 38 C.F.R. § 4.85. As stated, the Veteran is competent and credible to report his symptoms of difficulty hearing in different environments. However, the VA’s audiometric tests are specifically designed to measure functional effects of decreased hearing and difficulty understanding speech in an everyday environment. The Veteran did not meet the rating criteria in excess of 30% in any of the tests completed before the November 9, 2015 examination, which is the first instance in which the Veteran could have been rated at 40% disabled for his bilateral hearing loss. The Veteran is not entitled to a rating in excess of 40%. An August 2016 assessment of the Veteran’s hearing loss shows no significant change from the November 2015 examination which warrants 40%. The VA examiner noted on the August 2016 assessment that the hearing loss the Veteran is experiencing can be managed by a fitting for newer hearing aids. Speech audiometry revealed speech recognition ability of 84% in the right ear and 56% in the left ear. Because the Veteran’s results of the August 2016 assessment show no significant change from the November 9, 2015 examination, the Veteran does not meet the criteria for a rating decision in excess of 40% disabling. The Board finds the Veteran’s claim for an increased rating for bilateral hearing loss in excess of 30% denied before November 9, 2015. The Veteran is awarded a 40% disability rating from November 9, 2015 to May 16, 2017 based on the results of the November 2015 examination, and other medical records that show objective results. 2. An increased rating for bilateral hearing loss in excess of 70% disabling is denied. The Veteran was rated at 70% disabling for bilateral hearing loss effective May 2017. This was based on a May 16, 2017 private hearing test at Pamplin Audiology, LLC. in which the Veteran was given an audiological examination by a licensed audiologist, and recorded puretone thresholds, in decibels. The results were as follows: HERTZ 1000 2000 3000 4000 AVERAGE RIGHT 80 70 85 80 78.75 LEFT 80 85 85 80 82.5 Speech audiometry revealed speech recognition ability of 52% in the right ear and 16% in the left ear. These results combine for a XI in the left ear and VIII in the right ear on Table VI. Roman numerals XI and VIII combine for a 70% rating in Table VII. 38 C.F.R. § 4.85. The Board finds it important to note that the Veteran was evaluated twice in May 2017. The Veteran was given an audiological examination on May 3, 2017 by a VA audiologist, and recorded puretone thresholds, in decibels. The results were as follows: HERTZ 1000 2000 3000 4000 AVERAGE RIGHT 55 65 80 75 68.75 LEFT 80 80 80 75 78.75 Speech audiometry revealed speech recognition ability of 82% in the right ear and 42% in the left ear. These results combine for a IX in the left ear and IV in the right ear on Table VI. Roman numerals IX and IV combine for a 30% rating in Table VII. 38 C.F.R. § 4.85. As stated, the Veteran is competent and credible to report his symptoms of difficulty hearing in. However, the VA’s audiometric tests are specifically designed to measure functional effects of decreased hearing and difficulty understanding speech in an everyday environment. The Veteran did not meet the rating criteria in excess of 70%, but rather met the objective standard of 70% disabling. The Veteran had two hearing tests in May 2017, as noted above. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R § 4.7. Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3; see Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990). The Board finds that the higher evaluation from the Veteran’s May 2017 private examination with Pamplin Audiology, LLC is the appropriate rating for the Veteran. The Veteran experiences difficulty hearing in every day life, and his condition interferes with his ability to work, making a 70% rating applicable. The Board denies the claim for an increased rating for bilateral hearing loss in excess of 70% disabling. M. H. Hawley Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Drew Kelly, Associate Counsel