Citation Nr: 20021869 Decision Date: 03/27/20 Archive Date: 03/27/20 DOCKET NO. 20-01 713 DATE: March 27, 2020 ORDER A rating in excess of 30 percent for bilateral hearing loss prior to May 23, 2019 is denied. FINDING OF FACT For the period on appeal prior to May 23, 2019, the Veteran was shown to have an exceptional pattern of hearing loss which, pursuant to VA regulations, corresponds to Level VII hearing for the right ear and Level VI for the left ear. CONCLUSION OF LAW The criteria for a rating in excess of 30 percent for bilateral hearing loss prior to May 23, 2019 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.85, 4.86. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from April 1953 to April 1955. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a December 2018 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The RO, in pertinent part, granted service connection and a 30 percent rating for bilateral hearing loss, effective May 18, 2018. The Veteran appealed, contending that a higher rating was warranted. A subsequent November 2019 decision review officer (DRO) decision assigned a 60 percent rating for the Veteran’s hearing loss, effective May 23, 2019. Thereafter, in a January 2020 VA Form 9, the Veteran reported that he was satisfied with the 60 percent rating, and indicated that he was seeking that rating for the entire period on appeal. A claimant can limit his or her claim to a specific disability rating. See AB v. Brown, 6 Vet. App. 35 (1993). Consequently, the Board has construed the present appeal as one for a rating in excess of 30 percent prior to May 23, 2019. Entitlement to a rating in excess of 30 percent for bilateral hearing loss prior to May 23, 2019 Disability evaluations are determined by the application of a schedule of ratings, which is in turn based on the average impairment of earning capacity caused by a given disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the evaluations to be assigned to the various disabilities. If 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. If different disability ratings are warranted for different periods of time over the life of a claim, “staged” ratings may be assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). Hearing loss is evaluated under Diagnostic Code 6100. The condition is normally rated on the basis of controlled speech discrimination tests (Maryland CNC), together with the results of puretone audiometry tests. See 38 C.F.R. § 4.85. Ordinarily, the results of these tests are charted on Table VI, as set out in the Rating Schedule, to determine the appropriate Roman numeral designation (I through XI) to be assigned for the hearing impairment in each ear. These numeric designations are then charted on Table VII to determine the rating to be assigned. Id. See, e.g., Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992) (indicating that evaluations of hearing loss are determined by a mechanical application of the rating schedule). However, not all patterns of hearing loss are rated in this manner. For example, if the puretone threshold at 1000, 2000, 3000, and 4000 Hertz is 55 decibels or more, the Roman numeral designation for that ear is taken from either Table VI or VIa, whichever results in the higher numeral. 38 C.F.R. § 4.86(a). See also 38 C.F.R. §§ 4.85(c) and 4.86(b) (indicating that alternative methodologies also apply when the examiner certifies that use of the speech discrimination test is not appropriate or when the puretone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz). Pursuant to 38 C.F.R. § 4.85(a), an examination for hearing impairment for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination (Maryland CNC) test and a puretone audiometry test. In this case, the Veteran was afforded a VA fee-basis audiometric examination in December 2018 consistent with these requirements. No other evaluation of the Veteran's hearing impairment satisfies these requirements for the period prior to May 23, 2019. Various treatment records reference audiological evaluations, but do not set out the data necessary for a proper evaluation of the Veteran’s disability. The December 2018 VA audiometric examination revealed puretone thresholds, in decibels, as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 65 80 80 85 77.5 LEFT 60 70 70 80 70 Speech recognition scores were 84 percent for both ears. As all of the aforementioned puretone thresholds were in excess of 55 Hertz at the four specified frequencies, the Veteran had an exceptional pattern of hearing loss in both ears as set out in 38 C.F.R. § 4.86(a). Thus, both Table VI and Table VIa are for consideration, and whichever results in the higher numeral is to be used. The December 2018 examination results correspond to Level III hearing for both ears under Table VI. However, under Table VIa, the results correspond to Level VII hearing for the right ear and Level VI for the left ear. Accordingly, the results from Table VIa are more favorable. The findings of Level VII hearing for the right ear and Level VI for the left ear correspond to a 30 percent rating under Table VII. In light of the foregoing, it is the Board’s conclusion that the preponderance of the evidence is against the Veteran’s claim for an initial rating in excess of 30 percent for bilateral hearing loss prior to May 23, 2019. As set forth above, the only available audiometric report relating to that period demonstrates entitlement to nothing more than a 30 percent rating. The Board acknowledges that the Veteran reported in both his Notice of Disagreement (NOD) and VA Form 9 that he waited to appeal the assigned rating until he had the opportunity to determine the effectiveness of his hearing aids. As there was no improvement, he contended that a higher rating was warranted. Although the Board is sympathetic, the effectiveness of hearing aids is not part of the applicable rating criteria. Moreover, as a general rule, the audiological evaluations that are utilized for rating purposes are conducted without the use of hearing aids. Therefore, the Board must find that this is not a basis for assigning a higher rating. The Veteran also contended in his January 2020 VA Form 9 that the November 2019 VA examination which was the basis for the 60 percent evaluation was “more thorough” than the December 2018 VA examination, and that the latter results should be used to evaluate his service-connected hearing loss for the entire period on appeal. However, no error or deficiency in the testing conducted on the December 2018 examination was identified by the Veteran, nor is such demonstrated by the other evidence of record. Further, he does not contend, nor does the record otherwise reflect, that the December 2018 examiner did not have the requisite qualifications to conduct the evaluation. Moreover, the November 2019 examination include a notation to the effect that the different results were due to a worsening of the hearing loss. Consequently, the Board concludes the findings of the December 2018 examination are adequate for rating purposes. Finally, the Board finds that the type of hearing problems described by the Veteran, to include in his NOD and VA Form 9, appear consistent with the functional effects of decreased hearing and difficulty understanding speech in an everyday work environment that is contemplated by the schedular criteria. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). For all these reasons, the Board finds the Veteran is entitled to a rating of no more than 30 percent for his hearing loss prior to May 23, 2019. The appeal is denied. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board John Kitlas, 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.