Citation Nr: 19138167 Decision Date: 05/16/19 Archive Date: 05/16/19 DOCKET NO. 18-17 423 DATE: May 16, 2019 ORDER Entitlement to a compensable rating for left ear hearing loss prior to May 29, 2018 is denied. Entitlement to a compensable rating for bilateral hearing loss from May 29, 2018 is denied. REMANDED Entitlement to an increased disability rating in excess of 30 percent for status-post right knee surgery with instability is remanded. FINDINGS OF FACT 1. Prior to May 29, 2018, the Veteran’s left ear hearing loss was manifested by no worse than auditory acuity Level V; he was not service-connected for right ear hearing loss which was statutorily assigned auditory acuity I. 2. From May 29, 2018, the Veteran’s bilateral hearing loss has been manifested by no worse than auditory acuity Level IX in the left ear, and Level I in the right ear. CONCLUSIONS OF LAW 1. The criteria for a compensable rating for left ear hearing loss, prior to May 29, 2018, have not been met. See 38 U.S.C. §§ 1110, 5107, 5110; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.385, 3.400, 4.85, Diagnostic Code (DC) 6100, 4.86. 2. The criteria for a compensable rating for bilateral hearing loss, from May 29, 2018, have not been met. See 38 U.S.C. §§ 1110, 5107, 5110; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.385, 3.400, 4.85, DC 6100, 4.86. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1966 to December 1967. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from April 2014, July 2018, and October 2018 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). Jurisdiction over the appeal presently rests with the RO in Boise, Idaho. The Board observes that the increased rating claim for hearing loss was initially appealed from the 2014 rating decision as an increased rating for left ear hearing loss only. The July and October 2018 rating decisions granted the Veteran service connection of right ear hearing loss and combined both right and left ear hearing loss into a single rating for bilateral hearing loss, effective May 29, 2018. Although the Veteran has not yet appealed either rating decision which granted service connection of right ear hearing loss and assigned it a noncompensable rating (indeed, both rating decisions remain in the statutory appeal period as of this time), because the new rating for bilateral hearing loss includes left ear hearing loss, and because the Board must consider the hearing acuity of both service-connected ears to evaluate the Veteran’s left ear hearing loss, it has characterized the claim on appeal as one for an increased rating for left ear hearing loss prior to May 29, 2018, and for an increased rating for bilateral hearing loss, from May 29, 2018. Increased Rating Disability ratings are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The Veteran’s entire history is reviewed when making disability evaluations. See generally, Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 4.1. Where, as in the case of the Veteran’s left ear hearing loss (and by incorporation, his later bilateral hearing loss), entitlement to compensation has already been established and an increase in the assigned evaluation is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Consideration of the medical evidence since the date of the claim for increase and consideration of the appropriateness of staged ratings are required. See Fenderson v. West, 12 Vet. App. 119 (1999). “Where there is a question as to which of 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. 1. Entitlement to a compensable rating for left ear hearing loss prior to May 29, 2018 As discussed above, the Veteran was service-connected for left ear hearing loss only, prior to May 29, 2018. He seeks a compensable rating for that time period. In rating hearing loss, disability ratings are derived from the mechanical application of the rating schedule to numeric designations assigned after audiometric evaluations are performed. Lendenmann v. Principi, 3 Vet. App. 345 (1992). Disability ratings of bilateral hearing loss range from noncompensable to 100 percent based on organic impairment of hearing acuity, as measured by a controlled speech discrimination test (Maryland CNC) and the average hearing threshold, as measured by pure tone audiometric tests at the frequencies of 1000, 2000, 3000 and 4000 Hertz. The rating schedule establishes 11 auditory acuity levels designated from Level I, for essentially normal hearing acuity, through level XI for profound deafness. An examination for hearing impairment for VA purposes must be conducted by a State-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a pure tone audiometry test. Examinations will be conducted without the use of hearing aids. 38 C.F.R. § 4.85(a). Under 38 C.F.R. § 4.85, Table VI (Numeric Designation of Hearing Impairment Based on Puretone Threshold Average and Speech Discrimination) is used to determine a Roman numeral designation (I through XI) for hearing impairment based on a combination of the percent of speech discrimination (horizontal rows) and the pure tone threshold average (vertical columns). The Roman numeral designation is located at the point where the percentage of speech discrimination and pure tone average intersect. 38 C.F.R. § 4.85(b). The pure tone threshold average is the sum of the pure tone thresholds at 1000, 2000, 3000 and 4000 Hertz, divided by four. This average is used in all cases to determine the Roman numeral designation for hearing impairment. 38 C.F.R. § 4.85(d). Table VII, (Percentage Evaluations for Hearing Impairment) is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment of each ear. The horizontal rows represent the ear having the better hearing and the vertical columns the ear having the poor hearing. The percentage evaluation is located at the point where the rows and column intersect. 38 C.F.R. § 4.85(e). VA regulations also provide that in cases of exceptional hearing loss, when the pure tone thresholds at each of the four specified frequencies (1000, 2000, 3000 and 4000 Hertz) is 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. Each ear will be evaluated separately. 38 C.F.R. § 4.86(a). The provisions of 38 C.F.R. § 4.86(b) further provide that, when the pure tone threshold is 30 decibels or less at 1,000 Hertz, and 70 decibels or more at 2,000 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 higher Roman numeral. Each ear will be evaluated separately. If impaired hearing is service-connected in only one ear, in order to determine the percentage evaluation from Table VII, the non-service-connected ear will be assigned a Roman Numeral designation for hearing impairment of I, subject to the provisions of § 3.383. 38 C.F.R. § 4.85(f). The Veteran was afforded a VA examination in connection with his increased rating claim in March 2014. Physical examination revealed puretone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average LEFT 40 70 105 100 78.75 The speech discrimination score for the left ear was 72 percent. Application of the above audiogram results to Table VI reveals Level V hearing acuity in the left ear. 38 C.F.R. §4.85, Table VI. This examination report did not demonstrate findings that puretone thresholds were 55 decibels or more at each of the four specified frequencies or that puretone thresholds were 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz. As such, consideration of the Veteran’s hearing loss using Table VIa for cases of exceptional hearing loss would not be warranted for the Veteran’s left ear hearing loss. Because the right ear was not yet service-connected, it is assigned Level I hearing acuity. Level I hearing acuity in the better ear, and level V hearing acuity in the poorer ear results in a noncompensable in accordance with the standards found in Table VII. 38 C.F.R. § 4.85, Table VII. Therefore, the Board must determine that the available evidence does not support a compensable rating at that time. The Board has carefully reviewed the available evidence of record and found no further audiogram or speech recognition testing which it can apply prior to May 29, 2018, to evaluate the Veteran’s hearing acuity for rating purposes. Therefore, the Board must determine that, based on the audiogram evidence of record, prior to May 29, 2018, the Veteran’s service-connected left ear hearing loss may not be granted a compensable rating. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, because the preponderance of the evidence is against the claim, that doctrine does not apply. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet App. 49 (1990); 38 C.F.R. § 3.102. 2. Entitlement to a compensable rating for bilateral hearing loss from May 29, 2018 On May 29, 2018, the Veteran filed a claim of service connection for right ear hearing loss, which was ultimately granted. As discussed above, the Veteran’s left ear hearing loss was subsequently combined with his right ear hearing loss into a single grant of bilateral hearing loss, effective May 29, 2018. Therefore, the Board must consider both ears in order to fully evaluate the Veteran’s left ear hearing loss claim. In June 2018, the Veteran was afforded a new hearing loss examination. Physical examination revealed puretone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average LEFT 45 75 105 95 80 RIGHT 15 30 45 60 37.5 The speech discrimination score for the left ear was 40 percent; speech discrimination for the right ear was 96 percent. Application of the above audiogram results to Table VI reveals Level IX hearing acuity in the left ear, and Level I in the right ear. 38 C.F.R. §4.85, Table VI. This examination report did not demonstrate findings that puretone thresholds were 55 decibels or more at each of the four specified frequencies or that puretone thresholds were 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz. As such, consideration of the Veteran’s hearing loss using Table VIa for cases of exceptional hearing loss would not be warranted for either ear. Level I hearing acuity in the better ear, and level IX hearing acuity in the poorer ear results in a noncompensable in accordance with the standards found in Table VII. 38 C.F.R. § 4.85, Table VII. Therefore, the Board must determine that the available evidence does not support a compensable rating. The Board has also carefully reviewed the Veteran’s VA and available private treatment records for further data upon which it might rate the Veteran’s bilateral hearing loss but finds none. Although his record notes continued treatment with a VA audiologist, those records note regular telehealth conferences and hearing aid evaluations, but do not contain any audiometric testing data, such as audiogram testing or speech recognition testing. Therefore, there is no further evidence which the Board may consider the Veteran’s hearing loss under the present statutory rating guidelines. As such, the Board must deny a compensable rating for bilateral hearing loss, and by association, left ear hearing loss, from May 29, 2018. In making this conclusion, it does not that the Veteran’s hearing acuity is very near a compensable rating but does not meet the criteria at this time. Therefore, this decision does not preclude an increased rating on a future claim, should the Veteran’s hearing loss continue to increase. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, because the preponderance of the evidence is against the claim, that doctrine does not apply. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet App. 49 (1990); 38 C.F.R. § 3.102. The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303. REASONS FOR REMAND 1. Entitlement to an increased disability rating in excess of 30 percent for status-post right knee surgery with instability is remanded. The Veteran was most recently afforded a VA examination of his right knee in April 2014. Unfortunately, that examination does not include any consideration of passive versus active movement, nor weight-bearing versus non-weight bearing movement, therefore the examinations do not comply with the requirements in Correia v. McDonald, 28 Vet. App. 158, 168 (2016). The Board further notes that VA treatment records dated within the last year indicate complaints of increased symptoms for a right knee disability. As such, the Board will remand this issue for a new VA examination of the Veteran’s right knee. The matter is REMANDED for the following action: 1. Invite the Veteran to submit any additional evidence in support of his claim. 2. Schedule the Veteran for an examination of the current severity of his right knee disability. The examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to the Veteran’s right knee disability alone and discuss the effect of the Veteran’s right knee disability on any occupational functioning and activities of daily living.   If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner should, to the best of his or her ability, estimate the additional limitation based on the Veteran’s statements and the other evidence of record. B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Pryce, Associate Counsel