Citation Nr: 20005255 Decision Date: 01/22/20 Archive Date: 01/22/20 DOCKET NO. 14-38 331A DATE: January 22, 2020 ORDER Entitlement to an initial disability rating in excess of 40 percent for service-connected bilateral hearing loss prior to May 1, 2011, is denied. Entitlement to a disability rating in excess of 10 percent for service-connected bilateral hearing loss beginning May 1, 2011, forward is denied. FINDINGS OF FACT 1. For the period prior to May 1, 2011, the Veteran’s bilateral hearing loss was no worse than a Level IV in the right ear, and a Level XI in the left ear. 2. For the period beginning May 1, 2011, the Veteran’s bilateral hearing loss has been no worse than a Level II in the right ear, and Level V in the left ear. CONCLUSIONS OF LAW 1. For the period prior to May 1, 2011, the criteria for an initial disability rating in excess of 40 percent for bilateral hearing loss were not met. 38 U.S.C. § 1155; 38 §§ 4.7, 4.85, 4.86, Diagnostic Code 6100. 2. For the beginning May 1, 2011, the criteria for a disability rating in excess of 10 percent for bilateral hearing loss were not met. 38 U.S.C. § 1155; 38 §§ 4.7, 4.85, 4.86, Diagnostic Code 6100. Introduction The Veteran served honorably on active duty in the United States Army during the Peacetime, from April 1979 to December 1986. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from November 2009, September 2010, and February 2011 Rating Decisions by the Department of Veterans Affairs (VA) Regional Office (RO). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Legal Criteria Disability evaluations are determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2017). The percentage ratings contained 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. §§ 3.321(a), 4.1. In initial rating claims, the Board must discuss whether “staged ratings” are warranted, and if not, why not. 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. Except as otherwise provided by law, the Veteran has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information in a case, including lay and medical evidence of record, with respect to benefits provided by laws administered by the Secretary. 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 Veteran. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. 1. Entitlement to an initial disability rating in excess of 40 percent for service-connected bilateral hearing loss prior to May 1, 2011, is denied. In evaluating hearing loss, disability ratings are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are performed. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). The rating schedule establishes 11 auditory hearing acuity levels based upon average puretone thresholds and speech discrimination. See 38 C.F.R. § 4.85. 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 puretone audiometry test. Examinations will be conducted without the use of hearing aids. 38 C.F.R. § 4.85(a). 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 puretone threshold average (vertical columns). The Roman numeral designation is located at the point where the row and column intersect. 38 C.F.R. § 4.85 (b). Table VIa, “Numeric Designation of Hearing Impairment Based Only on Puretone Threshold Average,” is used to determine a Roman numeral designation (I through XI) for hearing impairment based only on puretone threshold average. Table VIa is used when the examiner certifies that the use of the speech discrimination test is not appropriate due to language difficulties, inconsistent speech discrimination scores, etc., or when indicated under the provisions of § 4.86. 38 C.F.R. § 4.85(c). “Puretone threshold average” as used in Tables VI and VIa is the sum of the puretone thresholds at 1000, 2000, 3000 and 4000 Hertz and divided by four. This average is used in all cases (including those under § 4.86) to determine a Roman numeral designation from Tables VI and VIa. 38 C.F.R. § 4.85(d). Table VII, “Percentage Evaluations of Hearing Impairment,” is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment in each ear. The horizontal rows represent the ear having the better hearing and the vertical columns represent the ear having the poorer hearing. The percentage evaluation is located at the point where the row and the column intersect. 38 C.F.R. § 4.85(e). Provisions for evaluating exceptional patterns of hearing impairment are as follows: (a) When the puretone thresholds at each of 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. Each ear will be evaluated separately; (b) When the puretone 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; the numeral will then be elevated to the next higher Roman numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86. The Court has held 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.” Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). Factual Background and Analysis The Veteran’s claim for service-connected bilateral hearing loss was received by the VA in May 2009. Thereafter, the Veteran underwent a compensation and pension (C&P) audiological examination in October 2009. The VA examiner conducted both air conduction and bone conduction testing and determined that the air conduction study better reflected the Veteran’s hearing loss. The objective testing revealed puretone thresholds, in decibels, as follows: 1000 Hz 2000 Hz 3000 Hz 4000 Hz Avg. Hz Right Ear 60 55 50 90 63 Left Ear 85 90 100 105 95 Speech audiometry revealed speech recognition ability of 76 percent in the right ear, and 28 percent in the left ear. Application of the puretone threshold values from the October 2009 examination to Table VI results in a Level IV Roman numeral designation for the right ear, and a Level XI Roman numeral designation for the left ear. As such, application of a Level IV designation and a Level XI designation to Table VII results in a 30 percent rating and no more. The Board also notes the readings reported in this evaluation do not meet the requirements for evaluation as an exceptional pattern of impairment under 38 C.F.R. § 4.86. However, the November 2009 Rating Decision erroneously utilized Table VIa and assigned a 40 percent rating effective May 2009 for the Veteran’s bilateral hearing loss. Table VIa should not have been employed because the Veteran’s hearing loss was not 55 decibels or more at each of the four specified frequencies, and none of the other criteria required to utilize Table VIa were met. Thereafter, in May 2010 the Veteran disagreed with the initial 40 percent rating assigned for service-connected bilateral hearing loss and claimed it had increased in severity. As a result, the Veteran was scheduled for another VA C&P audiological examination which was conducted in July 2010. According to the objective testing, the puretone thresholds, in decibels, were as follows: 1000 Hz 2000 Hz 3000 Hz 4000 Hz Avg. Hz Right Ear 40 40 40 85 51 Left Ear 105 105 105 105 105 Speech audiometry revealed speech recognition ability of 84 percent in the right ear, and the left ear could not be tested. Application of the puretone threshold values from the July 2010 examination to Table VI results in Level II Roman numeral for the right ear. Utilizing Table VIa for the left ear established a Level XI Roman numeral designation. As such, application of a Level II designation and a Level XI designation to Table VII results in a 10 percent rating and no more. The Board also notes the readings reported in this evaluation do not meet the requirements for evaluation as an exceptional pattern of impairment under 38 C.F.R. § 4.86. The September 2010 Rating Decision informed the Veteran of the clear and unmistakable error regarding the previously assigned 40 percent rating, which should have been 30 percent. Additionally, the Veteran was notified that a rating reduction to 10 percent for service-connected bilateral hearing loss was proposed due to improvement based upon the July 2010 VA examination. Thereafter, the Veteran underwent another VA C&P audiological examination in November 2010. The VA examiner conducted both air conduction and bone conduction testing and determined that the bone conduction study better reflected the Veteran’s hearing loss. Based upon this objective testing, the puretone thresholds, in decibels, were as follows: 1000 Hz 2000 Hz 3000 Hz 4000 Hz Avg. Hz Right Ear 30 30 45 70 44 Left Ear 65 70 70 70 69 Speech audiometry revealed speech recognition ability of 96 percent in the right ear, and 96 percent in the left ear. Application of the puretone threshold values from the November 2010 examination to Table VI results in Level I Roman numeral for the right ear. Utilizing Table VIa for the left ear established a Level V Roman numeral designation. As such, application of a Level I designation and a Level V designation to Table VII results in a non-compensable rating and no more. The Board also notes the readings reported in this evaluation do not meet the requirements for evaluation as an exceptional pattern of impairment under 38 C.F.R. § 4.86. Thus, the February 2011 Rating Decision decreased the Veteran’s rating for service-connected bilateral hearing loss from 40 percent to 10 percent effective May 1, 2011. As a result, based upon a thorough review of the entire record, the Veteran’s claim for entitlement to an initial disability rating in excess of 40 percent for service-connected bilateral hearing loss for the period prior to May 1, 2011, must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 2. Entitlement to a disability rating in excess of 10 percent for service-connected bilateral hearing loss beginning May 1, 2011, forward is denied. In September 2011 the Veteran disagreed with the 10 percent rating assigned for service-connected bilateral hearing loss and, following issuance of a Statement of the Case (SOC) in November 2014 continuing the 10 percent rating, he submitted his substantive appeal in November 2014. Following this Board’s remand in June 2018, another VA C&P audiological examination was ordered and conducted in June 2019. Based upon this objective testing, the puretone thresholds, in decibels, were as follows: 1000 Hz 2000 Hz 3000 Hz 4000 Hz Avg. Hz Right Ear 35 35 40 80 48 Left Ear 55 55 75 85 68 Speech audiometry revealed speech recognition ability of 88 percent in the right ear, and 88 percent in the left ear. Application of the puretone threshold values from the June 2019 examination to Table VI results in Level II Roman numeral for the right ear. Utilizing Table VIa for the left ear established a Level V Roman numeral designation. As such, application of a Level II designation and a Level V designation to Table VII results in a 10 percent rating and no more. The Board also notes the readings reported in this evaluation do not meet the requirements for evaluation as an exceptional pattern of impairment under 38 C.F.R. § 4.86. As noted above, an SSOC was issued in October 2019 wherein the issues involved herein were again denied. As a result, based upon a thorough review of the entire record, the Veteran’s claim for entitlement to a disability rating in excess of 10 percent for service-connected bilateral hearing loss for the period beginning May 1, 2011, must be denied. There are no audiometric studies of record that support an increased rating, and no additional staged ratings are warranted. (Continued on the next page)   In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. T. REYNOLDS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Worsham, 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.