Citation Nr: 20034085 Decision Date: 05/15/20 Archive Date: 05/15/20 DOCKET NO. 11-28 585 DATE: May 15, 2020 ORDER Entitlement to a disability rating for bilateral hearing loss in excess of 30 percent as of January 25, 2010 and in excess of 50 percent as of August 17, 2017 is denied. FINDINGS OF FACT 1.As of January 25, 2010, the Veteran had, at worst, Level IV hearing loss in the left ear, and Level XI hearing loss in the right ear. 2. As of September 10, 2013 the Veteran had at worst, Level I hearing loss in the left ear, and Level XI hearing loss in the right ear. 3. As of August 17, 2017, the Veteran had, at worst, Level VIII hearing in the left ear and Level IX hearing in the right ear. CONCLUSION OF LAW The criteria for a disability rating in excess of 30 percent for bilateral hearing loss as of January 25, 2010 and in excess of 50 percent as of August 17, 2017 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from September 1972 to June 1979. In an August 2010 Rating Decision, the Regional Office (RO) increased the Veteran’s evaluation for service-connected hearing loss from 10 percent to 30 percent, effective January 25, 2010. The Veteran appealed for an increased evaluation, and a subsequent rating decision assigned a 50 percent rating as of August 17, 2017. In May 2018, the Board remanded this appeal for development. The Board finds that the RO substantially complied with the 2018 remand instructions. See Stegall v. West, 11 Vet. App. 268 (1998). Specifically, the RO obtained the requested VA outpatient audiometric data. The Board has thoroughly reviewed all the evidence in the Veteran’s VA files. In every decision, the Board must provide a statement of the reasons or bases for its determination, adequate to enable an appellant to understand the precise basis for the Board’s decision, as well as to facilitate review by the Court. 38 U.S.C. § 7104 (d)(1); see Allday v. Brown, 7 Vet. App. 517, 527 (1995). Although the entire record must be reviewed by the Board, the Court has repeatedly found that the Board is not required to discuss, in detail, every piece of evidence. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001) (rejecting the notion that the Veterans Claims Assistance Act mandates that the Board discuss all evidence). Rather, the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The points below focus on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake, supra. Disability ratings are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Where there is a reasonable doubt as to the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. §§ 3.102, 4.3. Where 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. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Also, “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. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Disability ratings for hearing loss generally must be based on objective audiometric testing of puretone threshold averages and controlled speech discrimination testing (Maryland CNC) by a state-licensed audiologist. 38 C.F.R. § 4.85(a). Under 38 C.F.R. § 4.85(d), the puretone threshold average is the sum of the puretone thresholds at 1000, 2000, 3000 and 4000 Hertz divided by four. These averages, together with the speech recognition ability, are combined pursuant to 38 C.F.R. § 4.85, Table VI, to obtain a Roman numeral designation. In some circumstances, the rating specialist may use Table VIA instead of Table VI. Specifically, Table VIA may be used where the examiner certifies that use of the speech discrimination test was not appropriate because of language difficulties, inconsistent speech discrimination scores, etc., or when indicated under the provisions of 38 C.F.R. § 4.86. See 38 C.F.R. § 4.85(c). Also, in cases presenting exceptional patterns of hearing impairment, a rating specialist may use Table VIA. 38 C.F.R. § 4.86. Exceptional patterns of hearing impairment include circumstances where the hearing thresholds are 55 decibels or more in each of the four frequencies from 1000 to 4000 Hertz or where a Veteran has a hearing threshold of 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz. 38 C.F.R. § 4.86. In this case, the Veteran has undergone multiple audiological evaluations throughout the period on appeal, as summarized below. On the April 2010 VA audiological examination, puretone thresholds, in decibels, were as follows: 1000 Hertz 2000 Hertz 3000 Hertz 4000 Hertz Average Right Ear 95 100 105 100 100 Left Ear 30 40 75 75 55 The Veteran’s speech discrimination scores (using the Maryland CNC word list) were 0 percent in the right ear and 80 percent in the left ear. When Table VI is applied the Veteran is properly assigned a Roman numeral of XI (Level XI) in his right ear, and a Roman numeral of IV in his left ear (Level IV). However, on the April 2010 examination the Veteran exhibited what amounts to an exceptional pattern of hearing loss in his right ear. 38 C.F.R. § 4.86(a). When such a pattern is evident, the Veteran’s hearing loss also needs to be analyzed under Table VIA. 38 C.F.R. § 4.86(a). When that Table, Table VIA, is applied to the Veteran’s right ear, he would receive a Roman numeral of X (Level X) for average puretone threshold of 100 decibels, so using Table VI is more advantageous to him. Therefore, with a Roman numeral of XI (Level XI) in the right ear and a Roman numeral of IV (Level IV) in the left ear, Table VII shows the Veteran’s hearing loss warrants a 30 percent rating. During that same April 2010 VA examination, the Veteran was also subjected to the puretone bone conduction test. The 2010 exam was done by a private contractor – QTC – and results were reported for both air and bone conduction audiometric testing. However, VA generally only uses air conduction results, as shown on VA’s examination forms. The 2013 and 2017 exams were performed at a VA medical facility, and those reports were completed using VA’s standardized DBQ’s, which explicitly solicit “air conduction only.” Because the 2010 contractor did not follow VA’s DBQ format, they provided bone conduction results as well. Those results were as follows: 1000 Hertz 2000 Hertz 3000 Hertz 4000 Hertz Average Right Ear 105 85 75 85 88 Left Ear 25 40 70 75 53 Again, the Veteran’s speech discrimination scores (using the Maryland CNC word list) were 0 percent in the right ear and of 80 percent in the left ear. The Veteran would still be assigned a Roman numeral of XI (Level XI) in the right ear, and a Roman numeral of IV (Level IV) in the left ear, equating to a 30 percent rating. Use of Table VI is more advantageous to the Veteran, since the bone conduction results showed an exceptional pattern of hearing loss for the right ear that would be assigned Level VIII. On the September 2013 VA examination, puretone thresholds, in decibels, were as follows: 1000 Hertz 2000 Hertz 3000 Hertz 4000 Hertz Average Right Ear 95 95 100 95 96 Left Ear 30 50 70 70 55 The Veteran’s speech discrimination scores (using the Maryland CNC word list) were 0 percent in the right ear and 96 percent in the left ear. Relying on the applicable subsection of 38 C.F.R. § 4.85, the Veteran is assigned a Roman numeral of XI (Level XI) in the right ear, and a Roman numeral of I (Level I) in the left ear. Here again, the Veteran exhibited an exceptional pattern of hearing loss in his right ear, and as such needs to have his hearing loss evaluated under Table VIA. 38 C.F.R. § 4.86(a). The Veteran received a puretone threshold average score of 96 and because of that he warrants a Roman numeral of IX (Level IX) under Table VIA. When analyzing the Veteran’s hearing loss under Table VI and Table VIA the highest Roman numeral will be used. 38 C.F.R. § 4.86(a). Therefore, when analyzing the Veteran’s hearing loss under Table VII for the right ear, the Veteran warrants a Roman numeral of XI (Level XI) and a Roman numeral of I (Level I) for the left ear. When those figures are applied to Table VII, those results would equal a 10 percent rating, not the 30 percent rating the Veteran has already been assigned for this time period. Therefore, a rating higher than 30 percent is not warranted. On the August 21, 2017 VA audiological examination, puretone thresholds, in decibels, were as follows: 1000 Hertz 2000 Hertz 3000 Hertz 4000 Hertz Average Right Ear 90 95 95 100 95 Left Ear 65 65 75 80 71 The Veteran’s left ear speech discrimination score (using the Maryland CNC word list) was 54 percent. Relying on the puretone threshold average the Veteran received in his left ear and the Maryland CNC score the Veteran received for that ear, the Veteran is assigned a Roman numeral of VIII (Level VIII) on Table VI. 38 C.F.R. § 4.85(b). That said, the Veteran exhibited an exceptional pattern of hearing loss in the left ear as well as the right ear. 38 C.F.R. § 4.86(a). Evaluating the Veteran’s hearing loss for his left ear under Table VIA would result in a Roman numeral of VI (Level VI). Therefore, use of Table VI is more advantageous to him. With respect to the Veteran’s right ear, the examiner stated she could not use the Maryland CNC test. Specifically, the examiner found that use of the speech discrimination test was not appropriate for the right ear because of language difficulties, inconsistent word discrimination scores etc., that make combined use of puretone average and word recognition scores inappropriate. 38 C.F.R. § 4.85(c). Thus, use of Table VIA is appropriate for the right ear. 38 C.F.R. § 4.85(c). When Table VIA is applied, the Veteran received a Level IX in his right ear. Therefore, under Table VII, Roman numeral of IX (Level IX) for the right ear and a Roman numeral of VIII (Level VIII) for the left ear would equal a 50 percent rating. The Board had previously remanded this case to obtain audiogram findings from April 10, 2009, September 14, 2012, and June 13, 2016, as referenced in VA medical records. These records have been obtained, but unfortunately those exams were inadequate for VA evaluation purposes because they did not include the Maryland CNC test for speech recognition. 38 C.F.R. § 3.385(a). The April 2009 test reflects the NU-6 word list was used, and the September 2012 and June 2016 tests used the CIDW-22 word list. The weight of the medical evidence is against granting a disability rating in excess of 30 percent as of January 25, 2010 and in excess of 50 percent as of August 17, 2017. The evidence is not in equipoise, so the benefit-of-the-doubt rule does not apply. See Gilbert v. Derwinski, 1 Vet. App. at 53-56. Accordingly, the claim is denied. The Veteran has not raised any specific issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Robinson, 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.