Citation Nr: 20007461 Decision Date: 01/29/20 Archive Date: 01/29/20 DOCKET NO. 19-05 845A DATE: January 29, 2020 ORDER Entitlement to an increased initial rating in excess of 10 percent for bilateral hearing loss prior to June 12, 2019, and in excess of 20 percent thereafter, is denied. FINDING OF FACT For the appellate period prior to June 12, 2019, at worst, the Veteran had Level II hearing loss in the right ear and Level VII hearing loss in the left ear; for the appellate period from June 12, 2019 forward, at worst, the Veteran had Level III hearing loss in the right ear and Level XI hearing loss in the left ear. CONCLUSION OF LAW The criteria for entitlement to a rating in excess of 10 percent for bilateral hearing loss prior to June 12, 2019, and in excess of 20 percent thereafter, have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.14, 4.21, 4.85, 4.86(a), Diagnostic Code 6100 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from February 1960 to August 1960. This matter comes to the Board of Veteran’s Appeals (Board) on appeal from a March 2018 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. Entitlement to a rating in excess of 10 percent for bilateral hearing loss prior to June 12, 2019 in excess of 20 percent thereafter The Veteran has asserted that his service-connected bilateral hearing loss warrants a higher rating than the initial 10 percent rating currently assigned prior to June 12, 2019, and the 20 percent rating assigned thereafter. Disability evaluations are determined by the application of a schedule of ratings that is based on average impairment of earning capacity. 38 U.S.C. § 1155. Percentage evaluations are determined by comparing the manifestations of a particular disorder with the requirements contained in the VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can practically be determined, the average impairment in earning capacity resulting from such disease or injury and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations which are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusion. Schafrath, 1 Vet. App. at 589. The degree of impairment resulting from a disability is a factual determination and generally the Board’s primary focus in such cases is upon the current severity of the disability. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994); Solomon v. Brown, 6 Vet. App. 396, 402 (1994). Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). If there is a question as to which evaluation to apply to the Veteran’s disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In evaluating service-connected 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). Evaluations of bilateral hearing loss range from noncompensable to 100 percent based on an organic impairment of hearing acuity, as measured by controlled speech discrimination tests in conjunction with the average hearing threshold, as measured by puretone audiometric tests in the frequencies of 1000, 2000, 3000 and 4000 cycles per second. The rating schedule establishes 11 auditory acuity levels designated from Level I for essentially normal hearing acuity through Level XI for profound deafness. VA audiological evaluations are conducted using a controlled speech discrimination test together with the results of puretone audiometry tests. The vertical line in Table VI (printed in 38 C.F.R. § 4.85) represents nine categories of the percentage of discrimination based on a controlled speech discrimination test. The horizontal columns in Table VI represent 9 categories of decibel loss based on the puretone audiometry test. The numeric designation of impaired hearing (Levels I through XI) is determined for each ear by intersecting the vertical row appropriate for the percentage of discrimination and the horizontal column appropriate to the puretone decibel loss. The percentage evaluation is found from Table VII (in 38 C.F.R. § 4.85) by intersecting the vertical column appropriate for the numeric designation for the ear having the better hearing acuity and the horizontal row appropriate for the numeric designation for the level for the ear having the poorer hearing acuity. For example, if the better ear had a numeric designation of Level “V” and the poorer ear had a numeric designation of Level “VII” the percentage evaluation is 30 percent. See 38 C. F. R. § 4.85. Regulations also provide that in cases of exceptional hearing loss, i.e., when the puretone threshold at each of the four specified frequencies (1,000, 2,000, 3,000 and 4,000 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 puretone threshold is 30 decibels or less at 1,000 hertz and 70 decibels or more at 2,000, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or VIa, whichever results in the higher numeral. That numeral will then be evaluated to the next higher Roman numeral. In conjunction with his service connection claim, the Veteran underwent a VA audiological examination in March 2018. See March 2018 VA Hearing Loss Disability Benefits Questionnaire (DBQ). The examiner conducted an audiogram, which reflected the following audiometric testing results: Hertz 1000 2000 3000 4000 Average Right Ear 30 65 65 70 57.5 Left Ear 35 80 105 100 80 The Veteran was also tested on speech discrimination using the Maryland CNC word list, and his speech discrimination was measured at 94 percent for the right ear, and 60 percent for the left ear. The VA examiner diagnosed the Veteran with bilateral sensorineural hearing loss in the frequency range of 500 to 4000 Hz as well as in the range of 6000 Hz to higher frequencies. These audiometric findings equate to Level II hearing loss in the right ear and Level VII hearing loss in the left ear. See 38 C.F.R. § 4.85, Table VI. When those values are applied to Table VII, a 10 percent evaluation reflects his bilateral hearing loss under the provisions of 38 C.F.R. § 4.85. The Veteran also submitted a VA audiogram conducted in May 2018 as part of his appeal. Audiometric testing results from that examination were as follows: Hertz 1000 2000 3000 4000 Average Right Ear 35 65 65 70 58.75 Left Ear 40 80 95 100 78.75 The Veteran was tested on speech discrimination, with results of 92 percent for the right ear and 52 percent for the left ear. Applying these findings to Table VI results in a numeric designation of Level II in the right ear and Level VIII in the left ear. 38 C.F.R. § 4.85, Table VI (2018). Application of the levels of hearing impairment in each ear to Table VII at 38 C.F.R. § 4.85 produces a 10 percent rating. As noted earlier above, the Veteran has already been assigned a 10 percent initial rating for the appellate period prior to June 12, 2019 for his service-connected bilateral hearing loss. The Veteran subsequently underwent another VA audio examination in June 2019. See June 2019 VA Hearing Loss Disability Benefits Questionnaire (DBQ). The examiner conducted an audiogram, which reflected the following audiometric testing results: Hertz 1000 2000 3000 4000 Average Right Ear 35 65 65 70 69 Left Ear 40 85 105 95 81 The Veteran was again tested on speech discrimination using the Maryland CNC word list, and his speech discrimination was measured at 84 percent for the right ear, and 32 percent for the left ear. These audiometric findings equate to Level III hearing loss in the right ear and Level XI hearing loss in the left ear. See 38 C.F.R. § 4.85, Table VI. When those values are applied to Table VII, a 20 percent evaluation reflects his bilateral hearing loss under the provisions of 38 C.F.R. § 4.85. As noted earlier above, the Veteran has already been assigned a 20 percent rating for the appellate period from June 12, 2019 forward for his service-connected bilateral hearing loss. Consequently, the evidence does not support an increased initial rating in excess of the 10 percent evaluation currently assigned prior to June 12, 2019 for the Veteran’s service-connected bilateral hearing loss; nor does the evidence support a rating in excess of 20 percent thereafter. 38 C.F.R. § 4.3. Simply stated, on this record, the results do not provide a basis to grant an increased initial rating, nor an increased staged rating when considering the service-connected hearing loss in both ears. In reaching this conclusion, the Board notes that the United States Court of Appeals for Veterans Claims (Court) held that relevant to VA audiological examinations, 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). The March 2018 VA examiner observed that the Veteran reported difficulty understanding speech clearing in most situations, but especially in noise. In contrast, the June 2019 VA examiner observed that the Veteran did not impact ordinary conditions of daily life, including his ability to work. The Board has considered the Veteran’s statements and finds that he is competent and credible to report the functional effects of his condition. However, the results of testing prepared by skilled professionals are more probative of the degree of the disability because the schedular criteria are predicated on audiological findings rather than subjective reports of severity of hearing loss. Ratings of hearing loss disability involve mechanical application of the rating criteria to the findings on audiometric test results, including puretone thresholds and speech recognition scores. The Board is bound to apply the VA Rating Schedule, under which the rating criteria are defined by audiometric test findings. The Board observes that the Veteran reported on his July 2018 notice of disagreement that the audiologist that performed a prior examination had had his license revoked by VA. However, the record does not show that that the individual that performed the March 2018 VA examination was not competent to provide the required testing. Further, the examination findings in March 2018 and May 2018 are consistent with each other. Accordingly, the Board finds that the medical evidence of record is sufficient to rate the Veteran’s claim under the applicable criteria. Accordingly, a rating in excess of 10 percent prior to June 12, 2019, and greater than 20 percent from June 12, 2019 are not met. DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Raj, 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.