Citation Nr: 20004448 Decision Date: 01/23/20 Archive Date: 01/21/20 DOCKET NO. 17-36 251A DATE: January 23, 2020 ORDER Entitlement to a compensable rating for bilateral hearing loss prior to April 18, 2018, is denied. Entitlement to a rating of 10 percent, and no higher, for bilateral hearing loss, effective April 18, 2018, is granted. FINDINGS OF FACT 1. Audiometric examinations conducted during the period on appeal show that the appellant had no worse than Level II hearing loss in the right ear and Level IV hearing loss in the left prior to April 18, 2018. 2. Audiometric examinations conducted during the period on appeal show that the appellant has no worse than Level IV hearing loss in the right ear and Level IV in the left since April 18, 2018. CONCLUSIONS OF LAW 1. The criteria for a compensable rating for bilateral hearing loss prior to April 18, 2018, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.85, Diagnostic Code 6100. 2. The criteria for a rating of 10 percent, and no higher, for bilateral hearing loss from April 18, 2018, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.85, Diagnostic Code 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant served on active duty in the U.S. Army from April 1943 to February 1946. This matter comes before the Board of Veterans’ Appeals (Board) from an April 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which denied entitlement to a compensable rating for bilateral hearing loss. The appellant was afforded a hearing before the undersigned by videoconference in March 2018. A transcript is of record. In May 2018, the Board remanded the matter for additional evidentiary development. While the matter was in remand status, in a June 2019 rating decision, the RO increased the rating of bilateral hearing loss to 10 percent, effective October 26, 2018. Although a higher rating was granted, the issue remained in appellate status, as the maximum schedular rating was not assigned for the entire period on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). In August 2019, the Board again remanded this matter to obtain the results of an April 2018 VA audiological evaluation. A Supplemental Statement of the Case (SSOC) was issued in September 2019. Increased Evaluations Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations should be applied, the higher evaluation will be assigned if that disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability is resolved in favor of the veteran. 38 C.F.R. § 4.3. In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where a claimant appeals the denial of a claim of an increased disability rating for a disability for which service connection was in effect before he filed the claim for increase, the present level of disability is the primary concern, and past medical reports should not be given precedence over current medical findings. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994). Where VA’s adjudication of the claim for increase is lengthy, and factual findings show distinct time periods where the service-connected disability exhibits symptoms which would warrant different ratings, different, or “staged,” ratings may be assigned for such different periods of time. Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007). Impairment of auditory acuity (hearing loss) is evaluated pursuant to the provisions set forth at 38 C.F.R. § 4.85. Under that regulation, an examination for hearing impairment 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 are to be conducted without the use of hearing aids. 38 C.F.R. § 4.85(a). To evaluate the degree of disability from defective hearing, the Rating Schedule establishes 11 auditory acuity levels from Level I, for essentially normal acuity, through Level XI, for profound deafness. These are assigned based on a combination of the percent of speech discrimination and the pure tone threshold average, as contained in a series of tables within the regulations. 38 C.F.R. § 4.85(b). The “puretone threshold average” is the sum of the pure tone thresholds at 1000, 2000, 3000, and 4000 Hertz (Hz), divided by four. This average is used in all cases to determine the Roman numeral designation for hearing impairment from Table VI or VIA. 38 C.F.R. § 4.85(d) (2015). 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 poorer hearing. The percentage evaluation is located at the point where the row and column intersect. 38 C.F.R. § 4.85(e). In cases where 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 38 C.F.R. § 3.383. 38 C.F.R. § 4.85(f). The regulatory provisions also provide two additional circumstances under which alternative tables can be employed. One is where the pure tone thresholds of the frequencies of 1000, 2000, 3000, and 4000 Hz are 55 decibels or greater. The second is where pure tone thresholds are 30 decibels or less at frequencies of 1000 Hz and below, and are 70 decibels or more at 2000 Hz. See 38 C.F.R. § 4.86. Analysis The Board finds that the preponderance of the evidence is against the award of a compensable evaluation for bilateral hearing loss prior to April 18, 2018, the evidence is in equipoise as to whether a rating of 10 percent, and no higher, is warranted effective April 18, 2018, and that the preponderance of the evidence is against the award of a rating in excess of 10 percent for any portion of the period on appeal. The appellant was afforded a VA examination in April 2017. Pure tone threshold testing revealed: HERTZ 500 1000 2000 3000 4000 RIGHT 25 30 35 55 75 LEFT 35 35 40 65 85 The 1000-4000 Hertz average was 49 decibels in the right ear and 56 in the left. Speech recognition using the Maryland CNC word list was 88 percent in the right ear and 76 percent in the left. These findings are equivalent to Level II hearing loss in the right ear and Level IV in the left. See 38 C.F.R. § 4.85, Table VI. Such equates to a noncompensable evaluation. Id., Table VII. It was noted that the appellant’s hearing loss did not impact ordinary conditions of daily life, including the ability to work. During the March 2018 Board hearing, it was noted that the appellant must read lips due to trouble hearing. A friend reported that the appellant must be very close to whoever is speaking, right next to or facing the speaker. The appellant contended that he notices a decrease in his hearing every day. It was noted that the appellant wanted a new pair of hearing aids because he can hardly hear even when the volume is turned all the way up. Noises sound muffled to him. The appellant testified that he can hear if people speak loudly, but he oftentimes just watches the lips of the speaker. The appellant’s hearing acuity was tested during an April 18, 2018, VA audiology appointment. Pure tone threshold testing revealed: HERTZ 500 1000 2000 3000 4000 RIGHT 20 25 30 55 70 LEFT 20 25 35 55 80 The 1000-4000 Hertz average was 45 decibels in the right ear and 48.75 in the left. Speech recognition using the Maryland CNC word list was 75 percent in the right ear and 80 percent in the left. The Board observes that the appellant’s April 18, 2018, examination report listed numerous speech recognition scores for the bilateral ears. All of the scores for the left ear are 80 percent, while the right ear scores range from 75 to 84 percent. Rather than delay the matter by remanding for clarification as to which score is appropriate, the Board will afford the benefit of the doubt to the appellant and find that the speech recognition score for the right ear is the lowest, 75 percent. The Board also observes that 38 C.F.R. § 4.85, Table VI, does not include a category inclusive of 75 percent. Rather, 68 to 74 percent is a category; and 76 to 82 percent is a category. Again, the Board will afford the appellant the benefit of the doubt and find that 75 percent more nearly approximates the 68 to 74 percent category, as such is more beneficial to the appellant. Thus, these findings are equivalent to Level IV hearing loss in the right ear and Level III in the left. See 38 C.F.R. § 4.85, Table VI. Such equates to a 10 percent evaluation. Id., Table VII. The appellant was afforded a VA examination in October 2018. Pure tone threshold testing revealed: HERTZ 500 1000 2000 3000 4000 RIGHT 25 30 35 65 75 LEFT 30 35 35 65 80 The 1000-4000 Hertz average was 51 decibels in the right ear and 54 in the left. Speech recognition using the Maryland CNC word list was 78 percent in the right ear and 80 percent in the left. These findings are equivalent to Level IV hearing loss in the right ear and Level IV in the left. See 38 C.F.R. § 4.85, Table VI. Such equates to a 10 percent evaluation. Id., Table VII. The appellant reported difficulty hearing the television, having to ask people to repeat themselves multiple times, and that others complain that he speaks too loudly. The VA examiner noted that the appellant’s ability to detect consonant sounds, even with the use of hearing aids, was impacted. He would be expected to struggle in quiet environments and even more so in noisy environments. The appellant would be expected to benefit from visual cues, but have difficulty participating in telephone conversations. Thus, the Board finds that the preponderance of the evidence is against the award of a compensable evaluation prior to April 18, 2018, and the evidence is in relative equipoise as to whether a 10 percent rating, and no higher, is warranted effective April 18, 2018, and that the preponderance of the evidence is against the award of a rating in excess of 10 percent for any portion of the period on appeal. The Board has considered the appellant’s description of his hearing loss disability, to include difficulties discerning speech, particularly with background noise and on the telephone, needing to turn up his telephone and television volume, being told he speaks too loudly, asking people to repeat themselves numerous times, reading lips, and needing to be very close to the speaker. However, disability ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). In this case, as explained above, the numeric designations correlate to the current disability ratings. Moreover, the rating criteria contemplate the appellant’s reported decreased hearing acuity and difficulty in understanding conversational speech. “[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.” Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017). 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 not contemplated by the rating criteria. He is in receipt of a separate compensable rating for tinnitus.   For these reasons, the Board finds that the preponderance of the evidence is against the award of a compensable evaluation prior to April 18, 2018, the evidence is in relative equipoise as to whether a 10 percent rating, and no higher, is warranted effective April 18, 2018, and that the preponderance of the evidence is against the award of a rating in excess of 10 percent for any portion of the period on appeal. As the evidence preponderates against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). K. Conner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Behlen, Associate Counsel 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.