Citation Nr: 20040407 Decision Date: 06/12/20 Archive Date: 06/12/20 DOCKET NO. 18-55 240 DATE: June 12, 2020 ORDER Entitlement to an initial compensable disability rating for bilateral hearing loss prior to July 27, 2017 is denied. Entitlement to a 10 percent disability rating for bilateral hearing loss is granted effective July 27, 2017. Entitlement to a disability rating higher than 10 percent for bilateral hearing loss is denied from July 27, 2017 to present. FINDINGS OF FACT 1. Audiometric testing establishes that from June 2014 to July 26, 2017, the Veteran’s bilateral hearing loss disability manifested as no worse than level “IV” in his right ear and level “II” in his left ear. 2. Audiometric testing establishes that beginning July 27, 2017, the Veteran’s bilateral hearing loss disability has manifested as not better than level “IV” in his right ear and level “III” in his left ear, but not worse than level “V” in his right ear and level “IV” in his left ear. CONCLUSIONS OF LAW 1. The criteria for an initial compensable rating for bilateral hearing loss were not met prior to July 26, 2017. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.85, Diagnostic Code (DC) 6100, 4.86. 2. The criteria for a disability rating of 10 percent, but not higher, for bilateral hearing loss beginning July 27, 2017 have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.85, Diagnostic Code (DC) 6100, 4.86. 3. The criteria for a disability rating higher than 10 percent for bilateral hearing loss have not been met for any time period from July 27, 2017 to present. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.85, Diagnostic Code (DC) 6100, 4.86. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from July 1958 to July 1960 and from January 1991 to July 1991. This matter is before the Board of Veterans’ Appeals (Board) on appeal from an April 2015 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). This appeal has been advanced on the Board’s docket. 38 U.S.C. § 7107(a)(2); 38 C.F.R. § 20.900(c)(1). In March 2020, the Board remanded the issue on appeal for the RO to obtain, if they existed, the specific audiological findings from the Veteran’s May 2019 VA audiological evaluation. Per a VA note dated April 2020, no record of the specific test results appears to exist. The Board finds the RO substantially complied with the remand instructions and further remand is not required. See Stegall v. West, 11 Vet. App. 268 (1998); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (noting that Stegall requires substantial compliance with remand orders, rather than absolute compliance). The Board has thoroughly reviewed all evidence in the claims file. The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim, and the Board’s reasons for rejecting evidence favorable to the Veteran. The Veteran must not assume the Board has overlooked evidence not explicitly discussed herein. The RO provided the Veteran with the pertinent regulations for consideration in the December 2018 statement of the case and May 2020 supplemental statement of the case and they are not repeated here in full. Neither the Veteran nor the Veteran’s representative has raised any issues not addressed herein, to include regarding the duty to notify or the duty to assist, or with the conduct of the Veteran’s Board hearing, nor have any other issues been reasonably raised by the record.   See Doucette v. Shulkin, 28 Vet. App. 366, 69-70 (2017) (confirming Board not required to address issues unless specifically raised by claimant or reasonably raised by evidence of record). Higher Disability Ratings for Bilateral Hearing Loss In the April 2015 rating decision on appeal, the RO in relevant part granted the Veteran’s claim for service connection for bilateral hearing loss and assigned the Veteran a noncompensable disability rating (0 percent) effective June 18, 2014, which was the date of the Veteran’s claim. The Veteran timely appealed the assigned rating and in October 2019 the RO issued a rating decision that increased the Veteran’s rating from 0 percent to 10 percent effective January 9, 2019. That, however, was not the highest possible rating, so the appeal continues. See AB v. Brown, 6 Vet. App. 35, 39 (1993) (Veteran is presumed to be seeking the highest possible rating unless he or she expressly indicates otherwise). For the reasons set forth below, the Board finds that (1) the Veteran was not entitled to an initial compensable rating for bilateral hearing loss prior to July 26, 2017; (2) resolving reasonable doubt in favor of the Veteran, he was entitled to a 10 percent disability rating for bilateral hearing loss effective July 26, 2017 (rather than the January 9, 2019 effective date assigned by the RO; but (3) the criteria for a disability rating higher than 10 percent have not been met for any time period from July 26, 2017 to present. Disability ratings are determined by the application of VA’s Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Reasonable doubt as to the degree of disability 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 ratings shall be applied, the higher rating 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. Hearing loss disability ratings range from 0 percent to 100 percent based on objective audiometric testing of puretone threshold averages in the frequencies 1000, 2000, 3000 and 4000 Hertz, and controlled speech discrimination testing (Maryland CNC) by a state-licensed audiologist. 38 C.F.R. § 4.85(a). Disability ratings for hearing impairment are derived by a mechanical application of audiometric evaluation results to the rating schedule. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Diagnostic Code 6100 provides two tables for rating purposes (Table VI and Table VIA) used to determine a Roman numeral designation (I through XI) for the level of hearing impairment in each ear. See 38 C.F.R. § 4.85. Table VI is used by default. When the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more, the rating specialist will determine the Roman numeral designation for the level of hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral. 38 C.F.R. § 4.86(a). When the pure tone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral, and then that numeral will then be evaluated to the next higher Roman numeral. 38 C.F.R. § 4.86(b). Table VIA is also utilized when the audiologist certifies that the use of the speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc. 38 C.F.R. § 4.85(c). Table VII is then used to determine the percentage rating by combining the Roman numeral designations for hearing impairment of each ear. 38 C.F.R. § 4.85. The Veteran underwent a VA audiological examination for his hearing loss claim in February 2015. His puretone threshold averages were 56 decibels in the right ear and 58 decibels in the left ear. His Maryland CNC speech discrimination scores were 84 percent in the right ear and 92 percent in the left ear. Applying these results to Table VI, right ear hearing impairment was level “II” and his left ear hearing impairment was level “II.” See 38 C.F.R. § 4.85, DC 6100. However, 38 C.F.R. § 4.86(a) is applicable because the puretone threshold in the Veteran’s right ear was 55 decibels or more for all four specified frequencies (1000, 2000, 3000, and 4000 Hertz). Thus, applying the right ear test results to Table VIA, right ear hearing impairment was level “IV.” See 38 C.F.R. § 4.86(a). 38 C.F.R. § 4.86(b) is not applicable because his puretone threshold was not 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz in either ear. Pursuant to Table VII, level “IV” right ear hearing loss (which is used because it is the higher of the two calculated levels using Tables VI and VIA) and level “II” left ear hearing loss equate to a 0 percent rating. The Board notes that at these levels, the Veteran’s hearing impairment was right on the cusp. An increase in either ear to the next level of impairment would have resulted in a 10 percent rating, and any decrease in the Veteran’s word recognition score percentage in either ear would have increased the level of impairment in that ear to the next level assuming no change in the puretone threshold average for that ear. A March 2015 VA audiology note states that the Veteran reported difficulty hearing on the phone, in background noise and when communicating with his girlfriend. The note indicates that audiological testing was performed, but no specific puretone threshold results or word recognition scores were noted. However, the audiologist noted that the Veteran’s hearing acuity was essentially stable since previous testing performed in January 2013, though the VA treatment note for that prior testing likewise contains no specific puretone threshold results or word recognition scores. A July 26, 2017 VA audiology treatment note entered in connection with a hearing aid check and audiological evaluation states that when compared to his previous audiological evaluation performed in March 2015, the Veteran’s hearing acuity was stable at the frequencies relevant for VA disability purposes though no specific puretone threshold results from audiometric testing were noted. However, the Veteran’s word recognition scores were noted as 84 percent for the right ear and 88 percent for the left ear. Based on the audiologist’s statement that the Veteran’s puretone threshold results were “stable” as compared to his March 2015 results, which themselves were obtained shortly after the February 2015 VA audiological examination, and resolving reasonable doubt in favor of the Veteran, the Board finds that it is reasonable to infer in this particular case (but not as a general rule) that the February 2015 official VA examination puretone threshold results are a valid proxy for the Veteran’s puretone thresholds in July 2017. Therefore, the Board will use those puretone thresholds along with the word recognition scores from July 2017, since those showed a decrease in speech recognition for the left ear. Applying Table VI, right ear hearing impairment (56 dB and 84 percent) was level “II” and his left ear hearing impairment (58 dB and 88 percent) was level “III.” However, 38 C.F.R. § 4.86(a) is applicable because the puretone threshold in the Veteran’s right ear was 55 decibels or more for all four specified frequencies (1000, 2000, 3000, and 4000 Hertz), such that under Table VIA his right ear hearing impairment was level “IV.” 38 C.F.R. § 4.86(b) is not applicable because his puretone threshold was not 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz in either ear. Pursuant to Table VII, level “IV” right ear hearing loss (which is used because it is the higher of the two calculated levels using Tables VI and VIA) and level “III” left ear hearing loss equate to a 10 percent rating. The Veteran underwent another VA audiological examination in January 2019. His puretone threshold averages were 63 decibels in the right ear and 59 decibels in the left ear. His Maryland CNC speech discrimination scores were 84 percent in the right ear and 76 percent in the left ear. Applying these results to Table VI, right ear hearing impairment was level “III” and his left ear hearing impairment was level “IV.” See 38 C.F.R. § 4.85, DC 6100. However, 38 C.F.R. § 4.86(a) is applicable because the puretone threshold in both of the Veteran’s ears was 55 decibels or more for all four specified frequencies (1000, 2000, 3000, and 4000 Hertz). Thus, applying the test results to Table VIA, right ear hearing impairment was level “V” and left ear hearing impairment was level “IV.” See 38 C.F.R. § 4.86(a). 38 C.F.R. § 4.86(b) is not applicable because his puretone threshold was not 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz in either ear. Pursuant to Table VII, level “V” right ear hearing loss and level “IV” left ear hearing loss (which are used because they are the higher of the two calculated levels using Tables VI and VIA) equate to a 10 percent rating. A May 2019 VA audiology note made in connection with what was described as a “comprehensive audiologic re-evaluation” states that the Veteran’s bilateral hearing loss had “remained fairly stable when compared to his previous audiologic results obtained in [July] 2017.” As with the July 2017 treatment note, the May 2019 treatment note did not record any specific puretone threshold results from audiometric testing and, as noted in the introduction in regard to the Board’s March 2020 remand, such results do not appear to have been recorded elsewhere. However, the Veteran’s word recognition scores were noted as 76 percent for the right ear and 80 percent for the left ear. Based on the relatively short amount of time that had transpired between the January 2019 VA audiological examination and the May 2019 VA hearing evaluation done in connection with treatment, and resolving reasonable doubt in favor of the Veteran, the Board finds that it is reasonable to infer in this particular case (but not as a general rule) that the January 2019 puretone testing results are a valid proxy for the Veteran’s puretone thresholds in May 2019. Applying these results to Table VI, his right ear hearing impairment (63 dB and 76 percent) was level “IV” and his left ear hearing impairment (59 dB and 80 percent) was level “IV.” See 38 C.F.R. § 4.85, DC 6100. Again, 38 C.F.R. § 4.86(a) is applicable because the puretone threshold in both of the Veteran’s ears was 55 decibels or more for all four specified frequencies (1000, 2000, 3000, and 4000 Hertz). Thus, applying the test results to Table VIA, right ear hearing impairment was level “V” and left ear hearing impairment was level “IV.” See 38 C.F.R. § 4.86(a). 38 C.F.R. § 4.86(b) is not applicable because his puretone threshold was not 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz in either ear. Pursuant to Table VII, level “V” right ear hearing loss and level “IV” left ear hearing loss (which are used because they are the higher of the two calculated levels using Tables VI and VIA) equate to a 10 percent rating. Summarizing the foregoing, the RO increased the Veteran’s disability rating for bilateral hearing loss from 0 percent to 10 effective January 9, 2019 based on the results of the January 2019 VA audiological examination. However, between the time the Veteran submitted his notice of disagreement with the April 2015 rating decision in August 2015 and the time he was scheduled for that VA examination more than three years later, he underwent audiometric testing at VA in July 2017 the specific results of which, through no fault of the Veteran, were apparently not recorded. There is no evidence that the Veteran’s hearing acuity improved during that time. To the contrary, the VA audiologist who conducted the July 2017 testing noted that his audiometric testing results had remained “stable” since 2015, and resolving reasonable doubt in favor of the Veteran, the February 2015 VA audiometric results are, in this case, a valid proxy for his July 2017 puretone threshold test results. The Board considered the Veteran’s statements and reports regarding his subjective functional impairments caused by his hearing loss. However, the Board finds that the evidence as a whole does not indicate that his hearing acuity and hearing loss disability warranted a compensable rating under VA’s tables for rating hearing loss disabilities at any time prior to July 27, 2017, nor a rating higher than 10 percent at any time since that date. Accordingly, the Veteran is not entitled to a compensable rating for bilateral hearing loss from the effective date of service connection until July 26, 2017, but is entitled to a disability rating of 10 percent, but no higher, beginning July 26, 2017. To that extent, the appeal is granted. MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Leamon 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.