Citation Nr: 20072832 Decision Date: 11/12/20 Archive Date: 11/12/20 DOCKET NO. 18-34 452 DATE: November 12, 2020 ORDER Entitlement to a rating in excess of 20 percent prior to October 19, 2017, and in excess of 40 percent thereafter, for bilateral hearing loss is denied. FINDING OF FACT Audiometric testing conducted prior to October 19, 2017 reflects that the Veteran had no worse than Level IV hearing loss in the right and left ears; audiometric testing conducted thereafter reflects that the Veteran had no worse than Level VIII hearing loss in the right ear and Level VI in the left ear. CONCLUSION OF LAW The criteria for entitlement to a rating in excess of 20 percent prior to October 19, 2017, and in excess of 40 percent thereafter, for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code (DC) 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1955 to April 1957. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2016 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO), which continued the 20 percent rating for the Veteran’s service-connected bilateral hearing loss. In August 2018, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. This matter was previously before the Board in January 2019. At that time, the Board remanded the claim for further evidentiary development, to include a VA examination. The Board notes that in an August 2020 rating decision, the RO increased the Veteran’s disability rating to 40 percent, effective October 19, 2017. Although a higher rating was granted, the issue remains 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). Entitlement to a rating in excess of 20 percent prior to October 19, 2017, and in excess of 40 percent thereafter, for bilateral hearing loss is denied. The Veteran contends that his hearing loss is more severe than originally rated. See August 2018 Transcript of Hearing, pages 3-5. 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 pure tone 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). 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). 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 are 70 decibels or more at 2000 Hz. 38 C.F.R. § 4.86. The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C. § 5107(b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under 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 claimant. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Upon weighing the evidence of record, the Board finds that the preponderance of the evidence is against the award of a rating in excess of 20 percent prior to October 19, 2017, and in excess of 40 percent thereafter, for bilateral hearing loss. In connection with his claim for an increased rating, the Veteran was afforded a VA audiological examination in July 2016. Audiological evaluation showed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 40 70 75 80 LEFT 25 40 70 75 85 The 1000-4000 Hertz average was 66 decibels in the right ear and 68 in the left. Speech recognition using the Maryland CNC word list was 76 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. When applied to Table VII, this warrants a 10 percent rating. Id., Table VII. In the rating decision on appeal, the RO denied entitlement to a rating in excess of 20 percent based on these results and noted that it appeared that the Veteran’s hearing acuity may have improved. However, his rating would not be reduced based upon the results of this one examination. The Board will not disturb that finding. The Veteran’s hearing acuity was again tested in October 2017, during a VA examination. Pure tone threshold testing revealed: HERTZ 500 1000 2000 3000 4000 RIGHT 20 45 70 70 80 LEFT 25 45 75 75 75 The 1000-4000 Hertz average was 66.25 decibels in the right ear and 67.5 in the left. Speech recognition using the Maryland CNC word list was 52 percent in the right ear and 68 percent in the left. These findings are equivalent to Level VIII hearing loss in the right ear and Level VI in the left. See 38 C.F.R. § 4.85, Table VI. When applied to Table VII, this warrants a 40 percent rating. Id., Table VII. At the August 2018 hearing, referenced above, the Veteran testified that his hearing acuity had progressively worsened over the years. He testified that he experienced difficulty hearing people speak and that he had to turn up the volume on the radio and television in order to hear. He also testified that he experienced difficulty hearing in public places, such as restaurants and stores. See August 2018 Transcript of Hearing, pages 3-5. Pursuant to the January 2019 Board remand instructions, the Veteran was afforded a VA examination in October 2019. Pure tone threshold testing revealed: HERTZ 500 1000 2000 3000 4000 RIGHT 45 55 70 80 85 LEFT 35 55 80 85 85 The 1000-4000 Hertz average was 73 decibels in the right ear and 76 in the left. Speech recognition using the Maryland CNC word list was 88 percent in the right ear and 88 percent in the left. These findings are equivalent to Level III hearing loss in the right ear and Level III in the left. See 38 C.F.R. § 4.85, Table VI. When applied to Table VII, this warrants a noncompensable rating. Id., Table VII. The Board observes that this evidence indicates that the Veteran exhibits an exceptional pattern of hearing loss as contemplated by 38 C.F.R. § 4.86, as the pure tone thresholds for 1000-4000 Hertz noted in the October 2019 VA examination were 55 decibels or more. Thus, Table VIa is to be used if it would avail the Veteran of a higher evaluation. Utilizing Table VIa, the findings are equivalent to Level VI hearing loss in the right ear and Level VI in the left. 38 C.F.R. § 4.85, Table VIa. Level VI hearing loss in the right and left ears equates to a 30 percent rating. The RO noted in the August 2020 Supplemental Statement of the Case (SSOC) that the audiological findings contained in the October 2019 VA examination indicated a 30 percent evaluation. However, the RO determined that the audiological findings were not evidence of permanent improvement when considering “normal waxing and waning of [the Veteran’s] signs and symptoms” and concluded that the evidence did not support assigning a lower evaluation. The Board will not disturb this finding. The Board has carefully reviewed the remaining record in its entirety, but finds no other probative evidence of record showing that the Veteran’s hearing loss disability is more severe for compensation purposes during the period on appeal than demonstrated on the audiological evaluations discussed above. VA clinical records confirm that the Veteran was issued hearing aids in June 2013. Audiometric testing conducted during the period on appeal contained in the VA clinical records does not show that the criteria for a rating in excess of 20 percent prior to October 19, 2017, and in excess of 40 percent thereafter, would be met. See e.g. March 2013 Audiology Consult; October 2019 Audiology Note. The Board has considered the Veteran’s description of his hearing loss disability, to include his competent report that he has difficulty hearing people speak, especially in noisy environments, and that he wears hearing aids. Although the Board finds his reports to be credible, 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. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). In this case, as explained above, the numeric designations correlate to the current disability ratings. (Continued on the next page)   Moreover, the rating criteria contemplate the Veteran’s reported decreased hearing acuity and difficulty in understanding conversational speech. Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) ([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). 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. While the Board notes that the Veteran has been diagnosed with chronic otitis externa of the right ear, this condition has not been found to be attributable to the Veteran’s hearing loss. In addition, the Board has considered the Veteran’s reports of tinnitus and vertigo, but notes that service connection is already in effect for those disabilities and the ratings assigned are not at issue in this appeal. The Board may not consider symptoms associated with other service-connected disabilities in rating the Veteran’s hearing loss as that would result in impermissible pyramiding. 38 C.F.R. § 4.14. For these reasons, the Board finds that the preponderance of the evidence is against the award of a 20 percent rating prior to October 19, 2017, and in excess of 40 percent thereafter, for bilateral hearing loss. As the evidence preponderates against the claim, the benefit of the doubt doctrine is not for application. 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 M. Ruddy, 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.