Citation Nr: 20028051 Decision Date: 04/22/20 Archive Date: 04/22/20 DOCKET NO. 14-02 588 DATE: April 22, 2020 ORDER An initial rating higher than 40 percent for bilateral hearing loss is denied. FINDING OF FACT The Veteran’s right ear hearing loss was no worse than a level VIII hearing impairment and his left ear hearing loss was no worse than a level VII hearing impairment. CONCLUSION OF LAW The criteria for an initial rating higher than 40 percent for bilateral hearing loss are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.85, 4.86, Diagnostic Code (DC) 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1943 to October 1945. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In that decision, the RO granted service connection for bilateral hearing loss and assigned a 40 percent rating, effective February 22, 2013. In January 2015, a Board hearing was held before a Veterans Law Judge (VLJ). In a March 2018 letter, the Veteran was advised that the VLJ who conducted the January 2015 hearing was no longer available. He was afforded the opportunity for another Board hearing and was advised that if he did not respond within 30 days of the letter, it would be assumed that he did not want another hearing. In March 2018, the Veteran submitted a statement indicating that he does not want a hearing before a different VLJ and to consider his appeal on the evidence of record. In April 2015, November 2015, and May 2018, the Board remanded the Veteran’s appeal for further development. Most recently, in May 2018, the Board remanded the appeal to obtain VA treatment records and to afford him a VA examination to assess the severity of his service-connected bilateral hearing loss. Following the Board’s May 2018 remand, VA treatment records were associated with the record and the Veteran was afforded a VA examination in November 2018. The November 2018 VA hearing loss VA examination provided sufficient details to adequately decide the Veteran’s appeal. For the reasons stated above, the agency of original jurisdiction (AOJ) complied with the Board’s remand instructions. Stegall v. West, 11 Vet. App. 268, 271 (1998). Higher Initial Ratings Disability evaluations are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Rating Schedule. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. When the appeal arises from an initial assigned rating, consideration must be given to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). Staged ratings are also appropriate in any increased rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). 1. An initial rating higher than 40 percent for bilateral hearing loss. The Veteran’s bilateral hearing loss is rated as 40 percent disabling under 38 C.F.R. §§ 4.85, 4.86, DC 6100, Tables VI, VIA, and VII of VA’s rating schedule. Hearing loss is rated on the basis of examination results including a controlled speech discrimination test (Maryland CNC), and a pure tone audiometric test of pure tone decibel thresholds at 1000, 2000, 3000, and 4000 Hz with an average pure tone threshold obtained by dividing these thresholds by four. 38 C.F.R. § 4.85. Once these test results have been obtained, employing Table VI, a Roman numeral designation of hearing impairment is ascertained based on a combination of the percent of speech discrimination and pure tone threshold average. Once a Roman numeral designation of auditory acuity level for each ear has been determined, Table VII is used to determine the percentage evaluation for bilateral hearing loss by combining the Roman numeral designations of auditory acuity level for hearing impairment of each ear. Id. Table VIA, a “Numeric Designation of Hearing Impairment Based Only on Puretone Threshold Average,” is only used to determine a Roman numeral designation (I though XI) for hearing impairment based on the puretone threshold average. Table Via will be used when the examiner certifies that the use of speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc., or when indicated under the provisions of 38 C.F.R. § 4.86. 38 C.F.R. § 4.85(c). There is an alternative method of rating hearing loss in defined instances of exceptional hearing loss. In such exceptional cases, the Roman numeral designation for hearing loss of an ear may be based only on pure tone threshold average, using Table VIA, or from Table VI, whichever results in the higher Roman numeral. Exceptional hearing loss exists when the pure tone threshold at the frequencies of 1000, 2000, 3000, and 4000 Hertz is 55 decibels or more; or where the pure tone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz. In the latter situation, the higher Roman numeral, determined from Table VI or VIA, will then be elevated to the next higher Roman numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86. The assignment of a rating for hearing loss is achieved by a mechanical application of the rating schedule to the numeric designations assigned after audiometric valuations are rendered. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). In Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007), however, the United States Court of Appeals for Veterans Claims (Court) held that in addition to dictating objective test results in a VA audiology examination, a VA audiologist should describe the functional effects caused by a hearing disability in his or her final report. In an April 2013 VA audiology examination, audiometric testing revealed the following pure tone thresholds, in decibels: HERTZ 1000 2000 3000 4000 Average RIGHT 75 80 100 100 89 LEFT 75 75 85 90 81 The April 2013 examiner indicated that the use of speech discrimination score was not appropriate for the Veteran because of language difficulties, cognitive problems, inconsistent speech discrimination scores, etc., that would make the combined use of puretone average and speech discrimination scores inappropriate. The examiner opined that the Veteran’s bilateral hearing loss impacts his ordinary conditions of daily life, including his ability to work. The examiner explained that the Veteran was unable to communicate without asking to repeat words close to his ears. Results of the April 2013 VA audiogram reflect that there was an exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 in both ears, as puretone thresholds at the four specified frequencies were greater than 55 decibels. As indicated above, Table VIA or Table VI is applied when there is an exceptional pattern of hearing impairment; however, in this case, the April 2013 examiner explained that the use of speech discrimination scores were not appropriate for the Veteran. Therefore, Table VIA is applicable. Applying the results to Table VIa yields level VIII in the right ear and level VII in the left ear. Combining level VIII hearing and level VII hearing according to Table VII yields a 40 percent rating. In a November 2018 VA audiology examination, audiometric testing revealed the following pure tone thresholds, in decibels: HERTZ 1000 2000 3000 4000 Average RIGHT 60 70 70 70 68 LEFT 40 65 80 75 65 The examiner indicated that the use of speech discrimination score was not appropriate for the Veteran because of language difficulties, cognitive problems, inconsistent speech discrimination scores, etc., that would make the combined use of puretone average and speech discrimination scores inappropriate. The examiner opined that the Veteran’s bilateral hearing loss impacts his ordinary conditions of daily life, including his ability to work. The examiner explained that the Veteran relied on lip reading and frequently asked others to repeat themselves. Results of the November 2018 audiology examination show an exceptional pattern of hearing impairment in the right ear. Similar as to the April 2013 VA examination, the November 2018 examiner indicated that the use of speech discrimination score was not appropriate for the Veteran. Therefore, Table VIA will be applied for both ears. Applying the results to Table VIa yields a level V for both ears. Combining level V hearing for both ears according to Table VII yields a 20 percent rating. Based on the evidence above, a rating higher than 40 percent for the Veteran’s bilateral hearing loss is not warranted. The Board in no way discounts the difficulties that the Veteran experiences as a result of his bilateral hearing loss; however, the disability ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designation assigned after audiometry results are obtained. Hence, the Board must base its determination on the results of the pertinent VA audiology studies. See Lendenmann, 3. Vet. App. at 345. In other words, the Board is bound by law to apply VA’s rating schedule based on the Veteran’s audiometry results. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Based on the application of the criteria to the audiometric findings above, and the record presents no basis for a rating higher than 40 percent for the Veteran’s bilateral hearing loss. In Martinak, 21 Vet. App. At 447, the Court addressed a challenge to VA’s audiological testing practices, specifically, whether VA’s policy of conducting all audiometry testing of hearing loss claimants in a sound-controlled room was valid. The Court also addressed the requirements for an adequate VA audiological examination report. The Court upheld VA’s policy of conducting audiometry testing in a sound-controlled room. The Court also 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. As to the facts in this case, during the April 2013 and November 2018 VA examinations, the Veteran expressed his difficulties with hearing, as he relied on lip reading and frequently asked others to repeat themselves. This is sufficient to comply with Martinak. Furthermore, the Veteran’s bilateral hearing complaints of reduced hearing acuity and clarity are contemplated in the rating assigned. See Rossy v. Shulkin, 29 Vet. App. 142, 145 (2017). The applicability of the benefit-of-the-doubt doctrine has been considered; however, given the mechanical method in which ratings for bilateral hearing loss are derived, that doctrine is not applicable, a rating higher than 40 percent for the Veteran’s bilateral hearing loss is denied. See 38 U.S.C.§ 5107(b); 38 C.F.R. § 3.102. JAMES L. MARCH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Castillo, 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.