Citation Nr: 20007580 Decision Date: 01/29/20 Archive Date: 01/29/20 DOCKET NO. 06-22 467 DATE: January 29, 2020 ORDER The claim for an initial compensable rating for bilateral hearing loss prior to July 2, 2004 is denied. The claim for a 10 percent rating, but not higher, for bilateral hearing loss from July 2, 2004 to March 22, 2005, is granted. The claim for a rating higher than 20 percent for bilateral hearing loss from March 23, 2005 is denied. FINDINGS OF FACT 1. Prior to July 2, 2004, the Veteran’s bilateral hearing loss manifested no more than Level II hearing loss in the right ear and Level III hearing loss in the left ear. 2. From July 2, 2004 to March 22, 2005, the Veteran’s bilateral hearing loss manifested no more than Level III hearing loss in the right ear and Level IV hearing loss in the left ear. 3. From March 23, 2005, the Veteran’s bilateral hearing loss manifests no more than Level VI hearing loss in the right ear and Level IV hearing loss in the left ear. CONCLUSIONS OF LAW 1. Prior to July 2, 2004, the criteria for an initial compensable rating for bilateral hearing loss are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100. 2. From July 2, 2004 to March 22, 2005, the criteria for a 10 percent rating, but not higher, for bilateral hearing loss are met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100. 3. From March 23, 2005, the criteria for a rating higher than 20 percent for bilateral hearing loss are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1966 to January 1971. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from June 2004 and July 2005 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In March 2009, the Veteran testified at a videoconference hearing before a Veterans Law Judge. That judge is no longer employed at the Board. An October 2017 letter advised the Veteran of his right to have a new hearing with another judge. The Veteran has indicated he does not wish to appear at another hearing. An April 2009 Board decision denied an earlier effective date for a 20 percent rating for bilateral hearing loss. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In an October 2010 Memorandum Decision, the Court found that the Board failed to adequately address whether staged ratings were warranted for the bilateral hearing loss. The Board remanded the case in April 2011 and March 2018 to obtain an opinion from an audiologist. The requested opinions were added to the record in March 2015 and October 2019. There is some confusion in the record regarding the claim currently before the Board. When the case was first before the Board in June 2009, it was characterized as entitlement to an effective date earlier than March 23, 2005 for the award of a 20 percent rating for bilateral hearing loss. This claim was denied and appealed to the Court. However, in its October 2010 memorandum decision, the Court styled the current claim as “entitlement to a 20 [percent] disability rating prior to March 23, 2005…” Thus, the Court’s decision indicates that the issue on appeal is a claim for an initial increased rating rather than an earlier effective date. This interpretation is also supported by the Court’s reason for remanding the claim: to correct the Board’s error in failing to consider whether a staged rating was warranted during the initial claims period, i.e. “the period of time following the March 6, 1995, award of service connection.” The Board therefore finds that the claim on appeal is properly characterized as entitlement to a higher initial rating for bilateral hearing loss. The Board has also identified another error in the record due to ambiguous language contained in the June 2009 Board decision. In its March 2018 remand, the Board found that a medical opinion was necessary to determine whether a March 2005 private audiological examination used the Maryland CNC word test in accordance with 38 C.F.R. § 4.85. The case was remanded for this purpose, but when the claims file was provided to a VA examiner in October 2019 for the requested opinion, the examiner was unable to locate a private audiological examination dated in March 2005. The Board has now determined that such an examination report does not exist; instead, the March 2018 Board remand appears to have misunderstood the June 2009 Board’s description of the evidence. The Board misidentified a July 2, 2004 private examination report as having been dated in March 2005. In its June 2009 decision, the Board wrote: The Veteran submitted a claim for an increased rating for bilateral hearing loss on March 23, 2005. The Veteran submitted records from a private audiologist. The private audiological records showed puretone threshold averages at 1000, 2000, 3000, and 4000 Hertz were 53.7 in the right ear and 57.5 in the left ear. The Veteran had speech discrimination scores of 80 percent in each ear. The March 2018 remand interpreted the above passage as referring to a private audiological examination that took place in March 2005. There is no such record in the claims file. Instead, the examination results cited by the Board in its June 2009 decision are associated with a private evaluation report dated in July 2004 that were submitted by the Veteran to support his March 2005 claim for an increased rating. Although this evidence was received several months before the Veteran’s claim for an increased rating in March 2005, the examination report is itself dated July 2, 2004. The Board regrets any delay this error may have caused and finds that the record has never included a private audiological examination report dated in March 2005; rather, the test results attributed to this report pertain to a private examination performed on July 2, 2004. This examination report is of record and is used to support the assignment of a higher staged rating below. 1. Entitlement to a higher initial rating for bilateral hearing loss, rated as noncompensably disabling prior to March 23, 2005 and 20 percent disabling thereafter. Service connection for bilateral hearing loss was granted in a December 2003 Board decision. An initial noncompensable evaluation was assigned in a June 2004 rating decision effective May 24, 2001. In a June 2004 notice of disagreement (NOD), the Veteran initiated an appeal with respect to effective date for the award of service connection. The NOD is ambiguous as to the other disagreement expressed, but in order to resolve all doubt in favor of the Veteran, the Board finds that it also initiated an appeal with respect to the initial disability rating assigned the bilateral hearing loss. In March 2005, the Veteran filed a separate claim for an increased rating and in a June 2005 rating decision, an increased 20 percent evaluation was assigned effective March 23, 2005. A second NOD was filed in response to that rating decision, disagreeing with both the “effective date for the service connection” and “evaluation of [the Veteran’s] bilateral hearing loss.” The claim for an earlier effective date of March 6, 1995 for the award of service connection was granted by the Board in a June 2009 decision. Therefore, the Veteran’s bilateral hearing loss is currently rated as noncompensably disabling from March 6, 1995 to March 22, 2005 with a 20 percent rating in effect from March 23, 2005. The Veteran contends that higher ratings are warranted throughout the initial claims period. Disability evaluations are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibits symptoms that would warrant different evaluations at any point during the appeal, the assignment of staged ratings is appropriate. See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 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 through Level XI, for profound deafness. 38 C.F.R. § 4.85, Diagnostic Code 6100. The assignment of disability ratings for hearing impairment is 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). Prior to July 2, 2004, the Board finds that an initial compensable rating is not warranted for the Veteran’s bilateral hearing loss. During this period, the Veteran’s most severe hearing loss was demonstrated at a December 2002 private audiological examination. At that time, pure tone thresholds, in decibels, were as follows: HERTZ (Hz) 500 1000 2000 3000 4000 RIGHT 20 30 40 55 65 LEFT 20 30 55 55 60 The puretone threshold average was 47.5 Hz in the right ear and 50 Hz in the left ear. Speech audiometry was performed, but the examination report does not specify whether the Maryland CNC test was utilized as required for rating purposes by 38 C.F.R. § 4.85. A VA examiner reviewed the examination report in March 2015 and observed that while the private examination showed sensorineural hearing loss, it was unknown whether the Maryland CNC test was used. In October 2019, a second VA examiner noted that private examiners typically do not use the Maryland CNC test in audiological testing, and it was less likely than not that speech scores from private examiners meet the VA requirements for rating. The Board finds that the speech discrimination scores reported by the December 2002 private audiologist are not adequate for rating purposes as they do not establish use of the Maryland CNC word test. Therefore, the Board will rate the Veteran’s hearing loss during this period using 38 C.F.R. § 4.85, Table VIA, for rating hearing impairment based only on the puretone threshold average. The level of hearing impairment demonstrated at the December 2002 private examination translates to Level II in the right ear and Level III in the left ear under Table VIA. See 38 C.F.R. § 4.85, Table VIA, Diagnostic Code 6100. This translates to a noncompensable evaluation under the rating criteria and Table VII. Therefore, a noncompensable rating is appropriate throughout the initial claims period dating from March 6, 1995 to July 1, 2004. Turning to the period from July 2, 2004 to March 22, 2005, a higher rating of 10 percent is appropriate. The Veteran’s most severe hearing loss during this period was demonstrated at a July 2004 private audiological examination. Puretone thresholds were as follows: HERTZ (Hz) 500 1000 2000 3000 4000 RIGHT 40 40 45 60 70 LEFT 45 45 60 60 65 The puretone threshold average was 53.7 Hz in the right ear and 57.5 Hz in the left ear. As with the December 2002 private examination, speech audiometry testing was performed, but the examination report does not confirm whether the Maryland CNC test was used. The Board therefore finds that rating the hearing loss disability under Table VIA, based solely on the puretone threshold average, is again appropriate. The level of hearing impairment demonstrated at the July 2004 private examination translates to Level III hearing loss in the right ear and Level IV in the left ear under Table VIA. See 38 C.F.R. § 4.85, Table VIA, Diagnostic Code 6100. This translates to a 10 percent evaluation under the rating criteria and Table VII. Therefore, an increased 10 percent evaluation is warranted during the period from July 2, 2004 to March 22, 2005. Finally, the Board must address whether an increased rating is warranted for the Veteran’s hearing loss during the period beginning March 23, 2005. The Veteran is currently in receipt of a 20 percent evaluation during this period. His most severe hearing loss was measured at a May 2005 VA audiological examination when puretone threshold averages were as follows: Hz 500 1000 2000 3000 4000 RIGHT 50 55 55 70 100 LEFT 50 55 65 70 80 The puretone threshold average was 70 Hz in the right ear and 68 Hz in the left ear. Speech audiometry revealed speech recognition ability of 72 percent in the right ear and 76 percent in the left ear. This level of hearing impairment translates to Level VI in the right ear and Level IV in the left ear under Table VI. See 38 C.F.R. § 4.85, Table VI, Diagnostic Code 6100. This translates to a 20 percent rating under Table VII, i.e. the current assigned disability evaluation. There is no indication the Veteran’s hearing loss has worsened since the May 2005 VA examination; in fact, improved hearing was demonstrated at a September 2009 VA audiological examination. Accordingly, an increased rating is not appropriate during the period beginning March 23, 2005. In sum, the Veteran’s bilateral hearing loss disability is rated as noncompensable prior to July 2, 2004, as 10 percent disabling from July 2, 2004 to March 22, 2005, and as 20 percent disabling from March 23, 2005. The Board has considered whether ratings higher than those above are warranted, but has determined they are not—to include consideration of whether the Veteran manifests any exceptional patterns of hearing impairment as described in 38 C.F.R. § 4.86. The Board is sympathetic to the Veteran’s complaints related to his hearing loss, but finds that there is no schedular basis for granting higher ratings at any time during the initial claims period. In addition, the Board has considered the doctrine of reasonable doubt but has determined that it is not applicable because the preponderance of the evidence is against the claim for any higher ratings. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.7, 4.21. M. H. HAWLEY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Riley, 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.