Citation Nr: 18157585 Decision Date: 12/13/18 Archive Date: 12/12/18 DOCKET NO. 12-30 487 DATE: December 13, 2018 ORDER Entitlement to a rating in excess of 50 percent for bilateral hearing loss prior to April 12, 2011 is denied. Entitlement to a rating in excess of 70 percent for bilateral hearing loss from April 12, 2011 to July 4, 2011 is denied. Entitlement to a 100 percent rating for bilateral hearing loss from July 5, 2011 to January 29, 2012 is granted subject to the laws and regulations governing the award of monetary benefits. Entitlement to a rating in excess of 70 percent for bilateral hearing loss from January 30, 2012 to September 28, 2017 is denied. Entitlement to a 100 percent rating for bilateral hearing loss from September 29, 2017 is granted subject to the laws and regulations governing the award of monetary benefits. FINDINGS OF FACT 1. Prior to April 12, 2011 it was not factually ascertainable that the Veteran’s bilateral hearing loss was manifested by worse than a Level VII hearing loss in the right ear and a Level VIII hearing loss in the left ear. 2. From April 12, 2011 to July 4, 2011 the Veteran’s bilateral hearing loss was manifested by no worse than a Level VII hearing loss in the right ear and a Level VIII hearing loss in the left ear. 3. From July 5, 2011 to January 29, 2012 the Veteran’s bilateral hearing loss was manifested by a Level XI hearing loss bilaterally. 4. From January 30, 2012 to September 28, 2017 the Veteran’s bilateral hearing loss was manifested by no worse than a Level VIII hearing loss in the right ear and a Level XI hearing loss in the left ear. 5. From September 29, 2017 the Veteran’s bilateral hearing loss was manifested by Level XI hearing loss bilaterally. CONCLUSIONS OF LAW 1. The criteria for entitlement to an evaluation in excess of 50 percent for a bilateral hearing loss prior to April 12, 2011 were not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.85, 4.86, Diagnostic Code 6100. 2. The criteria for entitlement to a rating in excess of 70 percent for a bilateral hearing loss from April 12, 2011 to July 5, 2011 were no met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.85, 4.86, Diagnostic Code 6100. 3. The criteria for entitlement to a 100 percent rating for a bilateral hearing loss from July 5, 2011 to January 29, 2012 were met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.85, 4.86, Diagnostic Code 6100. 4. The criteria for entitlement to a rating in excess of 70 percent for a bilateral hearing loss from January 30, 2012 to September 28, 2017 were not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.85, 4.86, Diagnostic Code 6100. 5. The criteria for entitlement to a 100 percent rating for a bilateral hearing loss from September 29, 2017 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1963 to July 1966. In a July 2018 rating decision, the Veteran was granted entitlement to a total disability rating based on individual unemployability due to service-connected disabilities, effective April 12, 2011. As the Veteran has not expressed disagreement with the effective date of that award that issue is not currently before the Board. Increased Rating Disability evaluations are determined by the application of the VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings in the Rating Schedule represent, as far as can be practicably 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. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1999). Nevertheless, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as “staged” ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). The analysis is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods within the period on appeal. Where there is a question as to which of the two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Evaluations of defective hearing range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of a controlled Maryland CNC speech discrimination test together with the average hearing threshold level measured by pure tone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hertz). 38 C.F.R. § 4.85. To evaluate the degree of disability from defective hearing, the schedule establishes 11 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 and VII, Diagnostic Code 6100. Disability ratings for hearing loss are derived from a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). An exceptional pattern of hearing impairment occurs when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more. 38 C.F.R. § 4.86 (a). In that situation, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral. The Veteran contends that his bilateral hearing loss is more severely disabling than represented by the 50 percent rating assigned prior to April 12, 2011, and the 70 percent rating assigned from April 12, 2011 to September 29, 2017. The Veteran was granted service connection for a bilateral hearing loss in an April 2005 rating decision, effective from October 29, 2004. The Veteran claimed entitlement to an increased rating on April 12, 2011. That claim was denied and the Veteran appealed. In excess of 50 percent prior to April 12, 2011 The Board finds that prior to April 12, 2011, it was not factually ascertainable that the appellant’s bilateral hearing loss was manifested by worse than a Level VII hearing loss in the right ear and a Level VIII hearing loss in the left ear. The effective date of a grant of an increased rating is the earliest date as of which it is factually ascertainable that an increase in disability has occurred, if the claim is received within a year from that date. Otherwise, the effective date is the later of the date of increase in disability or the date of receipt of the claim. 38 U.S.C. § 5110 (b)(2); 38 C.F.R. § 3.400 (o)(2); Harper v. Brown, 10 Vet. App. 125 (1997). Here, a May 2012 rating decision noted that the Veteran’s claim for an increased rating for bilateral hearing loss was received on April 12, 2011. Although no such claim with this receipt date appears to be associated with the claims file, the Board will assume, for purposes of this decision, that the date of the claim for increase was April 12, 2011. The Veteran has not argued, and the record does not otherwise support, that he submitted any claim of entitlement to an increased rating for a bilateral hearing loss prior to April 12, 2011. The evidence of record preponderates against finding that any increase in hearing loss disability was factually ascertainable within the year prior to April 12, 2011. In this regard, no audiological testing results were received by VA between April 12, 2010 and April 12, 2011. While VA treatment records pertinent to this period note complaints of and treatment for hearing difficulties, these records do not contain any results of audiological testing. As noted above, the assignment of disability ratings for hearing impairment is primarily derived from a mechanical formula based on levels of pure tone threshold average and speech discrimination. Lendenmann. As there is no competent medical evidence supporting entitlement to an increased rating within the year prior to April 12, 2011, the preponderance of the evidence is against finding that a rating higher than 50 percent for bilateral hearing loss prior to April 12, 2011 is warranted. The claim is denied. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). In excess of 70 percent from April 12, 2011 to July 4, 2011 The Board finds that from April 12, 2011 to July 4, 2011, bilateral hearing loss was not manifested by greater than a Level VII hearing loss in the right ear and a Level VIII hearing loss in the left ear. The audiological testing results relevant to this period were obtained at an October 2009 VA audiological evaluation. There, pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 AVG RIGHT 60 75 90 95 80 LEFT 70 85 90 100 86 Speech audiometry revealed speech recognition ability of 64 percent in the right ear and of 60 in the left ear. The examiner opined that hearing loss may impair the Veteran’s ability to follow verbal instructions and distinguish speech sounds. Application of the findings of the October 2009 examination to Tables VI and VIA in 38 C.F.R. § 4.85 yields a finding of Level VII hearing loss in the right ear and Level VIII hearing loss in the left ear which warrants a 40 percent rating. As discussed below, the findings of a subsequent July 2011 VA examination were supportive of a 100 percent rating. However, the effective date for a grant of increased rating is the later of either the date of increase in disability or the date of receipt of the claim. 38 U.S.C. § 5110 (b)(2); 38 C.F.R. § 3.400 (o)(2). Here, an increase in the severity of the Veteran’s hearing loss disability in excess of the criteria for a 70 percent rating was not demonstrated by medical evidence prior to July 5, 2011. The Board has taken into consideration the Veteran’s complaints regarding the impact of hearing loss on his daily life, but the assignment of disability ratings for hearing impairment is primarily derived from a mechanical formula based on levels of pure tone threshold average and speech discrimination. Lendenmann. Pertinently, the Veteran reported having difficulty hearing conversations and the October 2009 examiner noted possible difficulty following verbal instructions and distinguishing speech sounds. These are functional difficulties that would be expected to be caused by his recorded levels of hearing loss. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (Manifestations such as difficulty hearing speech are the types of difficulties contemplated by the schedular criteria for hearing loss.). Thus, the most probative medical evidence as to the severity of the Veteran’s hearing loss for the period discussed herein are the October 2009 audiometric findings. Those reveal that the Veteran’s hearing loss did not warrant a rating in excess of 70 percent from April 12, 2011 to July 4, 2011. As the Veteran does not have the education or training to offer a medical opinion challenging the adequacy of the testing, and as there is no competent evidence of record to support his assertion that his hearing loss was, in fact, more severe than indicated on examination, the Veteran’s assertions are not probative. See Layno v. Brown, 6 Vet. App. 465 (1994), Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). The Board concludes that the medical findings on examination are of greater probative value than the Veteran’s lay allegations regarding the severity of his hearing loss and that his functional impairment is adequately reflected by those medical findings. In sum, the Board finds that the preponderance of the evidence is against finding that a rating higher than 70 percent for bilateral hearing loss from April 12, 2011 to July 4, 2011 is warranted. The claim is denied. 38 U.S.C. § 5107 (b); Gilbert, 1 Vet. App. at 54. In excess of 70 percent from July 5, 2011 to January 29, 2012 The Board finds that from July 5, 2011 to January 29, 2012, bilateral hearing loss was manifested by a Level XI hearing loss bilaterally. Dr. J.M. conducted a private audiological evaluation on July 5, 2011, and reported pure tone thresholds, in decibels, as follows: HERTZ 1000 2000 3000 4000 AVG, RIGHT 55 70 80 95 75 LEFT 60 80 85 95 80 Speech audiometry revealed speech recognition ability of 22 percent in the right ear and of 26 percent in the left ear. Dr. J.M. opined that the Veteran had difficulty understanding speech. The Board notes that it is not clear whether speech audiometry testing was completed using the Maryland CNC word list. However, affording the Veteran the benefit of the doubt, the Board will assume that the Maryland CNC word list was used. Application of the findings of the July 2011 examination to Tables VI and VIA in 38 C.F.R. § 4.85 yields a finding of Level XI hearing loss bilaterally which warrants a 100 percent rating. Thus, the Board finds that a 100 percent rating for bilateral hearing loss from July 5, 2011 to January 29, 2012 is warranted. In excess of 70 percent from January 30, 2012 to September 28, 2017 The Board finds that from January 30, 2012 to September 28, 2017, a bilateral hearing loss was not manifested by more than a Level VIII hearing loss in the right ear and a Level XI hearing loss in the left ear. On January 30, 2012, a VA examiner provided pure tone thresholds, in decibels, as follows: HERTZ 1000 2000 3000 4000 AVG RIGHT 70 80 85 100 84 LEFT 90 105 105 105 101 Speech audiometry revealed speech recognition ability of 80 percent in the right ear and of zero percent in the left ear. The examiner noted that the functional effect of hearing loss was that the Veteran was unable to hear well. Application of the findings of the January 2012 to Tables VI and VIA in 38 C.F.R. § 4.85 yields a finding of Level VIII hearing loss in the right ear and Level XI hearing loss in the left ear which warrants a 70 percent rating. In February 2016 a VA examiner reported pure tone thresholds, in decibels, as follows: HERTZ 1000 2000 3000 4000 AVG RIGHT 65 70 95 95 81.25 LEFT 70 80 90 95 84 Speech audiometry revealed speech recognition ability of 68 percent in the right ear and of 76 percent in the left ear. The examiner noted that the Veteran needed to ask people to repeat themselves. Application of the findings of the February 2016 to Tables VI and VIA in 38 C.F.R. § 4.85 yields a finding of Level VII hearing loss in the right ear and Level VIII hearing loss in the left ear which warrants a 40 percent rating. The Board has taken account of the Veteran’s complaints regarding the impact of hearing loss on his daily life as well as the December 2016 lay statements of M.U. and G.O. that the appellant’s hearing loss caused difficulty hearing speech. The Board has also considered the June 2013 letter of Dr. N.L. that the Veteran’s hearing caused significant difficulty in his personal life. It bears repeating, however, that the assignment of disability ratings for hearing impairment is primarily derived from a mechanical formula based on levels of pure tone threshold average and speech discrimination. Lendenmann. The January 2012 examiner’s report of difficulty hearing, the February 2016 examiner’s report that the Veteran needed to ask people to repeat themselves, as well as the lay reports of difficulties understanding speech and associated social impairments are functional difficulties that would be expected to be caused by his recorded levels of hearing loss. Doucette. The most probative medical evidence as to the severity of the Veteran’s hearing loss for the period discussed herein are the January 2012 and February 2016 audiometric findings. Those reveal that the Veteran’s hearing loss did not warrant a rating in excess of 70 percent from January 30, 2012 to September 28, 2017. As the Veteran does not have the education or training to offer a medical opinion challenging the adequacy of the testing, and as there is nothing in the record to support his assertion that his hearing loss is, in fact, more severe than indicated on examination, the Veteran’s assertions are not probative. Jandreau, 492 F. 3d 1372. The Board concludes that the medical findings on examination are more probative than the lay allegations regarding the severity of his hearing loss and that his functional impairment is adequately reflected by those medical findings. In sum, the preponderance of the evidence is against finding that entitlement to a rating higher than 70 percent for a bilateral hearing loss from January 30, 2012 to September 28, 2017 is warranted. The claim is denied. 38 U.S.C. § 5107 (b); Gilbert, 1 Vet. App. at 54. In excess of 70 percent since September 29, 2017 The Board finds that since September 29, 2017, bilateral hearing loss was manifested by a Level XI hearing loss bilaterally. On the authorized audiological evaluation on September 29, 2017, pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 AVG RIGHT 60 75 90 95 80 LEFT 75 85 85 95 85 Speech audiometry revealed speech recognition ability of 28 percent in the right ear and of 22 percent in the left ear. The examiner noted that the functional impairment of hearing loss was “great difficulty hearing and understanding conversations in all listening environments” and that the Veteran “always asks for others to repeat themselves. He depends on his wife to help him participate in conversations. He cannot hear over the telephone.” Application of the findings of the September 2017 examination to Tables VI and VIA in 38 C.F.R. § 4.85 yields a finding of Level XI hearing loss bilaterally which warrants a 100 percent rating. While the Veteran was granted a 100 percent rating by VA in a July 2018 rating decision, that decision assigned an effective date of September 30, 2017, rather than of September 29, 2017. The latter is correct date of increase as it corresponds to the date of the examination which first demonstrated findings sufficient to support a 100 percent rating. Thus, the Board finds that a 100 percent rating for bilateral hearing loss since September 29, 2017 is warranted. DEREK R. BROWN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Paul J. Bametzreider, Associate Counsel