Citation Nr: 18123764 Decision Date: 08/03/18 Archive Date: 08/02/18 DOCKET NO. 18-14 327 DATE: August 3, 2018 ORDER An increased disability rating of 50 percent, but no higher, for bilateral hearing loss is granted. FINDING OF FACT Resolving all doubt in the Veteran’s favor, the Veteran has at worst in Level VI hearing in the right ear and level XI hearing in the left ear. CONCLUSION OF LAW The criteria for an increased disability rating of 50 percent, but no higher, for bilateral hearing loss are met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.85 (Tables VI, VIA and VII, Diagnostic Code 6100), 4.86. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1945 to September 1947, February 1948 to October 1954, and December 1954 to May 1966. 1. Entitlement to an increased disability rating in excess of 20 percent for bilateral hearing loss The Veteran contends that his bilateral hearing loss is worse than currently rated. Specifically, in an October 2016 statement, received in November 2016 with his notice of disagreement, the Veteran reported that he felt that a 40 percent disability rating for his hearing loss was warranted. Then, in a December 2016 notice of disagreement form, the Veteran indicated that he was seeking a 50 percent disability rating. The Board agrees that a 50 percent disability rating, but no higher, is warranted. Disability ratings are determined by applying the criteria set forth in the VA’s Schedule for Rating Disabilities, which are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes (DCs). 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. Evaluations of hearing loss range from noncompensable to 100 percent, based upon 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 pure tone audiometry tests in the frequencies 1000, 2000, 3000, and 4000 cycles per second. 38 C.F.R. § 4.85(a), (d). To evaluate the degree of disability for service-connected bilateral hearing loss, the rating schedule establishes eleven (11) auditory acuity levels, designated from level I, for essentially normal acuity, through level XI, for profound deafness. 38 C.F.R. § 4.85, Diagnostic Code 6100. When the pure tone thresholds at the four specified frequencies (1000, 2000, 3000, and 4000 hertz) are 55 decibels or more, 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. 38 C.F.R. § 4.86 (a). When the pure tone thresholds are 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz, 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. That numeral will then be elevated to the next highest Roman numeral. 38 C.F.R. § 4.86 (b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran's claim for increased rating was received in February 2016. The relevant focus for adjudicating his claim is the period beginning February 2015, one year prior to the claim for increase. Hart v. Mansfield, 21 Vet. App. 505 (2007); cf 38 C.F.R. § 3.156(b). The first audiogram evidence during the claim is a VA audiologic evaluation in January 2016, where pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 AVE RIGHT 25 45 50 55 44 LEFT 90 90 100 100 95 Speech recognition scores were found to be unreliable at that time. Upon VA examination in February 2016, pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 AVE RIGHT 35 50 55 65 51 LEFT 90 90 90 100 93 The examiner found that speech recognition scores were not reliable at that examination and, therefore, were not appropriate to use in evaluating the Veteran’s hearing loss. The Board notes that a February 2016 VA treatment record also notes that an audiogram revealed bilateral sensorineural hearing loss and listed speech recognition scores of 64 percent in the right ear and zero percent in the left ear. While the audiogram itself was not provided, the Board finds no reason to invalidate the speech recognition score recorded and finds, that given that the testing was conducted by VA, that the Maryland CNC testing was utilized. A private audiogram dated in July 2016 revealed pure tone thresholds, in decibels, as follows: HERTZ 1000 2000 3000 4000 AVE RIGHT 30 45 50 65 48 LEFT 75 75 80 90 80 The audiologist, Dr. A.L., stated that the Veteran has asymmetric hearing loss, worse on the left, such that the Veteran’s left ear is virtually non-serviceable. Speech audiometry revealed speech recognition ability of 68 percent in the right ear and of 4 percent in the left ear. Although the statement of the case asserts that a different method other than the Maryland CNC test was used, the Board notes that the private report lists “CNC” as the list used. Resolving all doubt in the Veteran’s favor, the Board finds that the method used to obtain these speech recognition scores is valid for VA compensation purposes. Regarding the functional impact of the Veteran’s bilateral hearing loss, throughout the claim, the Veteran has reported a significant difficulty understanding speech and discriminating different words. With respect to the right ear, the greatest pure tone threshold average was 51 decibels at the February 2016 VA examination. While a speech discrimination score was not recorded at that examination, VA treatment records document a speech discrimination score of 64 percent that same month. Furthermore, just about five months later, a score of 68 percent was recorded by the private examiner, which demonstrates that the Veteran’s right ear speech discrimination scores were relatively consistent at that time, despite the VA examiner’s difficulty in obtaining a reliable score. A pure tone threshold of 51 and a speech recognition score of 64 in one ear translates to Level VI hearing impairment for the right ear under Table VI. There is no evidence of an exceptional pattern of hearing loss in the right ear, and thus, Table VIa is not applicable. See 38 C.F.R. § 4.86. With respect to the left ear, the greatest pure tone threshold average was 95 decibels according to the January 2016 audiogram. While speech recognition scores were not recorded at that time, the next month, a speech recognition score of zero percent was demonstrated upon audiogram according to VA treatment records. The Board notes that just five months later, the private audiologist recorded a speech recognition score of four percent in the left ear, demonstrating consistency in that score, despite the VA examiner’s difficulty in obtaining a reliable score. A pure tone threshold average of 95 decibels with a speech recognition score of zero percent translates to Level XI hearing impairment under Table VI for the left ear. While the left ear demonstrates an exceptional pattern of hearing loss according to 38 C.F.R. § 4.86(a), Table VIa provides a Level IX hearing impairment in such a case, less than provided under Table VI. See 38 C.F.R. § 4.86. Level XI hearing impairment in one ear and Level VI hearing impairment in the other ear warrants a 50 percent disability rating under the applicable criteria. 38 C.F.R. § 4.85, Diagnostic Code 6100. The Board notes that the evidence does not demonstrate that a higher schedular rating is warranted at any time during the appeal. Accordingly, an increased schedular rating of 50 percent, but no higher, is warranted throughout the appellate period. The Board notes that the disability rating assigned is the disability rating the Veteran is seeking, according to his December 2016 statement to VA. As such, the Board finds that this decision represents a full grant of the benefits sought in this case. Cf. AB v. Brown, 6 Vet. App. 35 (1993). DAVID GRATZ Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. B., Counsel