Citation Nr: 18157236 Decision Date: 12/12/18 Archive Date: 12/12/18 DOCKET NO. 17-37 351 DATE: December 12, 2018 ORDER Entitlement to a compensable rating for bilateral hearing loss for the period prior to July 13, 2017, is denied. Entitlement to a 20 percent rating, but no higher, for the period beginning July 13, 2017, for bilateral hearing loss is granted. FINDING OF FACT 1. For the period prior to July 13, 2017, the weight of the probative evidence shows that the Veteran’s bilateral hearing loss was manifested by no worse than Level IV hearing acuity in the right ear and Level II hearing acuity in the left ear. 2. For the period beginning July 13, 2017, the weight of the probative evidence shows that the Veteran’s bilateral hearing loss is manifested by no worse than Level V hearing acuity in the right ear and Level VI hearing acuity in the left ear. CONCLUSION OF LAW 1. The criteria for a compensable rating for bilateral hearing loss for the period prior to July 13, 2017, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code (DC) 6100. 2. The criteria for a 20 percent rating, but no higher, as of July 13, 2017, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.85, 4.86, DC 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1963 to July 1967. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2016 rating decision. Increased Rating for Hearing Loss Disability ratings are determined by application of the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular Diagnostic Code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating applies. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Board notes that where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. The Veteran was granted service connection for bilateral hearing loss and assigned a noncompensable rating as of October 2012 under the provisions of DC 6100 of the Schedule for Rating Disabilities. 38 C.F.R. § 4.85. In August 2016, the Veteran requested an increased rating for his service-connected bilateral hearing loss. The assignment of a disability rating for service-connected hearing impairment is derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). The severity of a hearing loss disability is determined by applying the criteria set forth at 38 C.F.R. § 4.85. Under these criteria, evaluations of bilateral hearing loss range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests together with the average hearing threshold level as measured by puretone audiometry tests in the frequencies of 1000, 2000, 3000 and 4000 Hertz. For VA rating purposes, an examination for hearing impairment must meet the four requirements of 38 C.F.R. § 4.85(a). It must be conducted by a state-licensed audiologist, the examination must include a controlled speech discrimination test (Maryland CNC), the examination must include a pure tone audiometry test, and the examination must be conducted without the use of hearing aids. To evaluate the degree of disability from defective hearing, the rating schedule establishes eleven auditory acuity levels from level I for essentially normal acuity through level XI for profound deafness. 38 C.F.R. § 4.85. To evaluate an individual’s level of disability, Table VI is used to assign a Roman numeral designation for hearing impairment based on a combination of the percent of speech discrimination and the pure tone threshold average. 38 C.F.R. § 4.85(b). Table VII is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment for each ear. 38 C.F.R. § 4.85(e). Under 38 C.F.R. § 4.86, when the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more, the rating specialist will determine the Level designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. 38 C.F.R. § 4.86(a). As an initial matter, the Board finds that an exceptional pattern of hearing under 38 C.F.R. § 4.86 in the context of the Veteran’s hearing examinations was not shown for any of his audiological examinations. In August 2016, the Veteran underwent a private audiological examination by a state licensed audiologist. On the authorized audiological evaluation, puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 30 65 70 60 LEFT 20 20 25 65 60 Puretone threshold average in the right ear was 56 and in the left ear was 43. Speech audiometry was not indicated to have been pursuant to the Maryland CNC speech discrimination test. Therefore, it is not adequate for rating purposes. See 38 C.F.R. § 4.85(a). In October 2016, a VA medical center (VAMC) record showed the Veteran to have had the private hearing test in August which showed significant changes in his right ear hearing thresholds since a 2013 evaluation. The examiner noted that the current thresholds were comparable to the August 2016 private hearing test. In November 2016, the Veteran underwent a VA audiological examination by a state licensed audiologist. On the authorized audiological evaluation, puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 30 35 70 75 70 LEFT 30 25 40 75 65 Puretone threshold average in the right ear was 63 and in the left ear was 51. Speech audiometry revealed speech recognition ability of 80 percent in the right ear and of 88 percent in the left ear. The findings on the Veteran’s hearing in this study correlate to a designation of level IV hearing in the right ear and level II hearing in the left ear, using Table VI. Per Table VII of § 4.85, a noncompensable evaluation under DC 6100 is assigned when those levels of hearing are demonstrated. On July 13, 2017, the Veteran underwent an audiological examination by a state licensed audiologist. He submitted a copy of that report to VA. Puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 35 40 70 75 75 LEFT 50 45 70 75 75 Puretone threshold average in the right ear was 65 and in the left ear was 66. Speech audiometry revealed speech recognition ability of 68 percent in the right and left ears. The findings on the Veteran’s hearing in this study correlate to a designation of level V hearing in the right ear and level VI hearing in the left ear, using Table VI. Per Table VII of § 4.85, a 20 percent rating under DC 6100 is assigned when those levels of hearing are demonstrated. Thus, based on the foregoing audiological test results, the Board finds that the Veteran’s bilateral hearing loss does not warrant a compensable rating prior to his July 13, 2017, audiogram. As of the date of that examination, the Veteran’s bilateral hearing loss warrants as 20 percent rating, but not higher. The Board appreciates the difficulties which the Veteran says he experiences because of his hearing loss. However, according to the audiological test results during the pendency of the appeal, compared to the rating criteria, a compensable rating prior to the July 13, 2017 audiological examination is not warranted. See Lendenmann, supra. In sum, the Board finds that for these reasons and bases, the preponderance of the evidence is against a compensable rating for bilateral hearing loss for the period prior to July 13, 2017, and in excess of 20 percent thereafter. The Board notes 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. See Martinak v. Nicholson, 21 Vet. App. 447 (2007). In this case, the VA examiners noted that the Veteran reported hearing difficulty which affected his daily and occupational activities. The Board finds any functional impairment, in addition to the Veteran’s other reports, has been appropriately considered and is contemplated in the ratings and, additionally, fails to support an assignment of a compensable rating. The Board finds that the rating criteria contemplate the Veteran’s bilateral hearing loss disability. The Veteran’s hearing loss is manifested by decreased hearing acuity. A comparison between the level of severity and symptomatology of the Veteran’s assigned rating with the established criteria found in the rating schedule shows that the rating criteria reasonably describe the Veteran’s disability level and symptomatology, including his difficulty hearing and understanding speech. The Board notes that this conclusion is consistent with the Court’s holding in Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (“[W]hen a claimant’s hearing loss results in an inability to hear or understand speech or to hear other sounds in various contexts, those effects are contemplated by the schedular rating criteria”). The Board further finds that other than difficulty hearing or understanding speech, the record on appeal contains no evidence of other symptoms attributable to the service-connected hearing loss. The Veteran has not raised any other issues with respect to the increased rating claim, nor have any other assertions been reasonably raised by the record. See Doucette, 28 Vet. App. at 369-70. P.M. DILORENZO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Parrish, Associate Counsel