Citation Nr: 20043766 Decision Date: 06/29/20 Archive Date: 06/29/20 DOCKET NO. 15-14 510A DATE: June 29, 2020 ORDER Entitlement to a compensable evaluation for service-connected bilateral hearing loss for the period from April 24, 2013 to September 18, 2018 is denied. Entitlement to an increased evaluation in excess of 20 percent for service-connected bilateral hearing loss for the period since September 18, 2018 is denied. FINDINGS OF FACT 1. The Veteran’s service-connected bilateral hearing loss has been manifested by no worse than level I hearing acuity in the right ear and level I hear acuity in the left ear for the period from April 24, 2013 to September 18, 2018. 2. The Veteran’s service-connected bilateral hearing loss has been manifested by no worse than level V hearing acuity in the right ear and level VI hear acuity in the left ear for the period since September 18, 2018. CONCLUSIONS OF LAW 1. The criteria for a compensable evaluation for bilateral hearing loss for the period from April 24, 2013 to September 18, 2018, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.85, Diagnostic Code 6100. 2. The criteria for an increased rating in excess of 20 percent for bilateral hearing loss for the period from September 18, 2018, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.85, Diagnostic Code 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in active duty service with the Air Force from February 1963 to August 1966. This matter is on appeal from a May 2014 rating decision. The Veteran was afforded an October 2018 hearing before the undersigned Judge. A transcript of the hearing has been associated with the claims record. The Board remanded this appeal in June 2019 for further development. The Board notes that a May 2020 rating decision increased the evaluation of the Veteran’s bilateral hearing loss to 20 percent effective September 18, 2018. As this increase did not constitute a full grant of the benefit sought for the entire appeal period, the Veteran’s claim for a higher evaluation remains in appellate status. See AB v. Brown, 6 Vet. App. 35, 38-39 (1993). As such, the issues on appeal before the Board are for a compensable evaluation for service-connected bilateral hearing loss from April 24, 2013 to September 18, 2018; and an increased evaluation in excess of 20 percent for bilateral hearing loss since September 18, 2018. 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). Increased Rating Disability evaluations are determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. 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. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible. See Fenderson v. West, 12 Vet. App. 119 (1999). Evaluations of defective hearing range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of a controlled speech discrimination test (Maryland CNC) together with the average hearing threshold level measured by puretone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hertz). To evaluate the degree of disability from service-connected defective hearing, the rating schedule establishes 11 auditory hearing acuity levels designated from Level I, for essentially normal hearing acuity, through Level XI, for profound deafness. 38 C.F.R.§ 4.85, Tables VI and VII, Diagnostic Code 6100 (2018). Disability ratings for hearing loss are derived from a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). An exceptional pattern of hearing impairment occurs when the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more. In that situation, 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. 38 C.F.R. § 4.86(a). Further, when the average puretone 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. That numeral will then be elevated to the next higher Roman numeral. Each ear will be considered separately. 38 C.F.R. § 4.86(b). The Veteran is currently service connected for bilateral hearing loss evaluated at non-compensable from April 24, 2013 to September 18, 2018, and at 20 percent since September 18, 2018 under Diagnostic Code 6100. The Veteran was afforded an August 2013 VA examination. The Veteran reported that since his separation from service he has been accused of yelling or speaking very loudly during conversations. Upon testing, the Veteran’s pure tone threshold levels in decibels were measured as followed: HERTZ 1000 2000 3000 4000 AVG RIGHT 5 25 55 80 41 LEFT 10 35 60 65 42 The average pure tone threshold findings at 1000, 2000, 3000, and 4000 Hertz (HZ) was 41 for the right ear and 42 for the left ear. Speech recognition scores based on the Maryland CNC Test was 96 percent for the right ear and 94 percent for the left ear. Applying the air conduction results to the applicable criteria, under Table VI, the right ear pure tone threshold average of 41 decibels combined with the right ear speech discrimination of 96 percent results in a Roman numeral designation of I, and the left ear pure tone threshold average of 42 decibels when combined with the left ear speech recognition of 94 percent results in a Roman numeral designation of I. Application of these findings to Table VII corresponds to a noncompensable rating under 38 C.F.R. § 4.85, Diagnostic Code 6100. The Veteran was afforded a May 2014 VA examination. Upon testing, the Veteran’s pure tone threshold levels in decibels were measured as followed: HERTZ 1000 2000 3000 4000 AVG RIGHT 5 25 45 65 35 LEFT 10 30 50 50 35 The average pure tone threshold findings at 1000, 2000, 3000, and 4000 Hertz (HZ) was 35 for the right ear and 35 for the left ear. Speech recognition scores based on the Maryland CNC Test was 96 percent for the right ear and 94 percent for the left ear. Applying the air conduction results to the applicable criteria, under Table VI, the right ear pure tone threshold average of 35 decibels combined with the right ear speech discrimination of 96 percent results in a Roman numeral designation of I, and the left ear pure tone threshold average of 35 decibels when combined with the left ear speech recognition of 94 percent results in a Roman numeral designation of I. Application of these findings to Table VII corresponds to a noncompensable rating under 38 C.F.R. § 4.85, Diagnostic Code 6100. In a September 2014 statement, the Veteran stated that he wore hearing aids and that he needed to increase the volume on his television in order to understand what was being said. The Veteran also noted that the May 2014 examination took only 15 minutes and disagreed with the “improvement” found in comparison to the 2013 examination. The Veteran submitted a January 2015 private audio examination. The examiner noted the Veteran reported hearing loss for some time but becoming more noticeable in the past 2 years. The examiner noted that the Veteran’s hearing loss would most likely result in difficulty communicating in the presence of ambient noise. Upon testing, the Veteran’s pure tone threshold levels in decibels were measured as followed: HERTZ 1000 2000 3000 4000 AVG RIGHT 25 35 60 75 48.75 LEFT 20 35 60 70 46.25 The average pure tone threshold findings at 1000, 2000, 3000, and 4000 Hertz (HZ) was 48.75 for the right ear and 46.25 for the left ear. Although the private examiner found speech discrimination was 96 percent for both ears, it is unclear whether the speech discrimination scores were conducted under Maryland CNC standards. Even if the speech discrimination scores were found to be held under Maryland CNC standards, the findings as applied to the applicable criteria, under Table VI, would result in a Roman numeral designation of I for the right ear, and a Roman numeral designation of I for the left ear. Application of such findings to Table VII corresponds to a noncompensable rating under 38 C.F.R. § 4.85, Diagnostic Code 6100. The Veteran was afforded a March 2015 VA examination. Upon testing, the Veteran’s pure tone threshold levels in decibels were measured as followed: HERTZ 1000 2000 3000 4000 AVG RIGHT 20 35 55 65 44 LEFT 20 35 55 65 44 The average pure tone threshold findings at 1000, 2000, 3000, and 4000 Hertz (HZ) was 44 for the right ear and 44 for the left ear. Speech recognition scores based on the Maryland CNC Test was 96 percent for the right ear and 84 percent for the left ear. Applying the air conduction results to the applicable criteria, under Table VI, the right ear pure tone threshold average of 44 decibels combined with the right ear speech discrimination of 96 percent results in a Roman numeral designation of I, and the left ear pure tone threshold average of 44 decibels when combined with the left ear speech recognition of 86 percent results in a Roman numeral designation of I. Application of these findings to Table VII corresponds to a noncompensable rating under 38 C.F.R. § 4.85, Diagnostic Code 6100. The Veteran submitted a September 2018 private audiological examination from the same examiner who conducted the January 2015 private examination. The examiner found that the Veteran’s evaluation showed a significant change in hearing since 2015. Although a September 18 audiogram found pure tone findings for 1000, 2000 and 4000 Hz, but not 3000 Hz. The Veteran submitted a document in October 2018 showing the pure tone testing results from the examination that were held for the Veteran. The Board notes the most recent testing shows a date of October 2018, however a followup with the private examiner regarding the speech discrimination score standards show the examiner referring to the September 2018 examination. As such the Board resolves reasonable doubt and finds the October 2018 pure tone threshold level findings dated October 2018 to refer to the examination held in September 2018. The Veteran’s pure tone threshold levels in decibels were measured as followed: HERTZ 1000 2000 3000 4000 AVG RIGHT 55 70 80 85 72.5 LEFT 70 70 80 85 76.25 The average pure tone threshold findings at 1000, 2000, 3000, and 4000 Hertz (HZ) was 72.5 for the right ear and 76.25 for the left ear. Speech recognition scores was 86 percent for the right ear and 82 percent for the left ear. In a later October 2018 followup, the private examiner confirmed the speech recognition scores were based on the Maryland CNC Test standards. Applying the air conduction results to the applicable criteria, under Table VI, the right ear pure tone threshold average of 72.5 decibels combined with the right ear speech discrimination of 88 percent results in a Roman numeral designation of III, and the left ear pure tone threshold average of 76.25 decibels when combined with the left ear speech recognition of 86 percent results in a Roman numeral designation of II. Application of these findings to Table VII corresponds to a noncompensable rating under 38 C.F.R. § 4.85, Diagnostic Code 6100. In an October 2018 statement, the Veteran described his hearing loss caused problems where “people seem to be always mumbling when they talk to me…I often have to ask people to repeat themselves…my family often complain that I have the radio or TV too loud.” The Veteran stated that he could no longer hear normal household sounds such as dripping faucets, running washer or dryers, doorbell ringing or door knocking, and outdoor noises such as the birds singing. The Veteran stated that he would have difficulty understanding conversation in a group of people, restaurant, or telephone conversation. The Veteran further stated that he would have trouble hearing people if they talk while his back is turned to them and has been told that when he speaks it sounds like that he is always yelling. At the October 2018 hearing, the Veteran testified to the same problems as detailed in the submitted October 2018 statement. The Veteran further reported that he needed to read people’s lips to understand them and remarked that he would need to be reminded by his partner several times if she was speaking to him. The Judge noted that the Veteran requested the volume be increased prior to the start of the hearing and that the Veteran would have difficulty understanding the Judge if the Judge turned so that the Veteran would not be able to see the Judge’s lips. In June 2019, the Board remanded the appeal for additional development. The Veteran was afforded a January 2020 VA examination. Upon testing, the Veteran’s pure tone threshold levels in decibels were measured as followed: HERTZ 1000 2000 3000 4000 AVG RIGHT 35 60 75 85 64 LEFT 35 65 70 75 61 The average pure tone threshold findings at 1000, 2000, 3000, and 4000 Hertz (HZ) was 64 for the right ear and 61 for the left ear. Speech recognition scores based on the Maryland CNC Test was 72 percent for the right ear and 60 percent for the left ear. Applying the air conduction results to the applicable criteria, under Table VI, the right ear pure tone threshold average of 64 decibels combined with the right ear speech discrimination of 72 percent results in a Roman numeral designation of V, and the left ear pure tone threshold average of 61 decibels when combined with the left ear speech recognition of 60 percent results in a Roman numeral designation of VI. Application of these findings to Table VII corresponds to a 20 percent evaluation under 38 C.F.R. § 4.85, Diagnostic Code 6100. After review of the record, the Board finds that the preponderance of evidence is against a finding for a compensable evaluation for bilateral hearing loss for the period from April 24, 2013 to September 18, 2018; and against a finding for an increased evaluation in excess of 20 percent for the Veteran’s bilateral hearing loss for the period since September 18, 2018. Based on application of VA’s method for evaluating hearing loss and the private and VA examinations of record, the Board finds that these evaluations do not provide a basis for awarding a compensable evaluation for bilateral hearing loss for the period from April 24, 2013 to September 18, 2018 or an increased evaluation in excess of 20 percent for the Veteran’s bilateral hearing loss for the period since September 18, 2018. Aside from the VA examinations in May 2014, March 2015 and January 2020; and the private examination in September 2018, there are no other audiometric testing results which comply with the requirements of 38 C.F.R. § 4.85 for rating purposes. The Veteran has indicated, stated or testified that his hearing is worse than the criteria associated with a non-compensable rating from April 24, 2013 to September 19, 2018 and or with a 20 percent evaluation for the period since September 18, 2018. However, the rating criteria for hearing loss, as addressed above for evaluation of the severity of the Veteran’s hearing loss, requires the mechanical application of rating criteria to objectively-obtained audiometric testing results. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). The current non-compensable rating from April 24, 2013 to September 19, 2018 and with a 20 percent evaluation for the period since September 18, 2018 is reflected by the rating evidence of record and there is no indication that the findings in the May 2014, March 2015 and January 2020 VA audiological examinations and the September 2018 private audiological examination are inadequate. Accordingly, the evidence is not sufficient to demonstrate that the Veteran’s bilateral hearing loss meets the criteria for a compensable evaluation from April 24, 2013 to September 18, 2018 or an increased evaluation in excess of 20 percent since September 18, 2018. 38 C.F.R. § 4.85. As the preponderance of the evidence is against a compensable evaluation from April 24, 2013 to September 18, 2018, and an increased evaluation in excess of 20 percent since September 18, 2018 for bilateral hearing loss, there is no doubt to be resolved; and an increased rating is not warranted. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Yang, Attorney-Advisor 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.