Citation Nr: 20044516 Decision Date: 07/02/20 Archive Date: 07/02/20 DOCKET NO. 15-25 833 DATE: July 2, 2020 ORDER 1. Entitlement to a compensable rating for a bilateral hearing loss disability prior to October 30, 2017 is denied. 2. Entitlement to a rating of 10 percent for a bilateral hearing loss disability from October 30, 2017 is granted. FINDINGS OF FACT 1. Prior to October 30, 2017, the Veteran demonstrated, at worst, level I hearing acuity in his right ear and level II hearing acuity in his left ear throughout the appeal period. 2. From October 30, 2017, the Veteran demonstrated a combination of hearing acuity levels that results in a 10 percent rating. CONCLUSIONS OF LAW 1. The criteria for entitlement to a compensable rating for a bilateral hearing loss disability prior to October 30, 2017 have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.10, 4.85, Diagnostic Code 6100, 4.86 (2018). 2. The criteria for entitlement to a rating of 10 percent, but no higher, for a bilateral hearing loss disability from October 30, 2017 have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.10, 4.85, Diagnostic Code 6100, 4.86 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1969 to February 1970. The Veteran testified at a video conference hearing before the undersigned Veteran’s Law Judge in February 2018. A transcript of the hearing was prepared and associated with the claims file. The Board remanded these matters in July 2018 for additional development. In consideration of the appeal, the Board is satisfied there was substantial compliance with the remand directives and will proceed with review. Stegall v. West, 11 Vet. App. 268 (1998). Following the July 2018 remand, a June 2019 rating decision increased the assigned rating for the bilateral hearing loss disability to 10 percent from May 16, 2019. The Board acknowledges that additional VA treatment record have been associated with the claims file since the most recent supplemental statement of the case (SSOC) was issued and the claims being transferred to the Board. However, the Veteran waived AOJ review of these records in a May 2020 statement, and the Board will proceed with review. Increased Rating 1. – 2. Entitlement to a compensable rating for a bilateral hearing loss disability prior to October 30, 2017 and a 10 percent rating thereafter Disability evaluations are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) at 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 civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Reasonable doubt as to the degree of the disability will be resolved in the veteran’s favor. 38 C.F.R. § 4.3. The U.S. Court of Appeals for Veterans Claims (Court) has held that, in determining the present level of a disability for an increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. Ratings of hearing loss range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of speech discrimination tests combined with the average hearing threshold levels as measured by pure tone audiometry tests in the frequencies 1000, 2000, 3000, and 4000 cycles per second. To rate the degree of disability for service-connected hearing loss, the Rating Schedule has established eleven auditory acuity levels, designated from level I, for essentially normal acuity, through level XI, for profound deafness. 38 C.F.R. § 4.85(h), Table VI. In order to establish entitlement to a compensable rating for hearing loss, it must be shown that certain minimum levels of the combination of the percentage of speech discrimination loss and average pure tone decibel loss are met. The assignment of disability ratings for hearing impairment is derived by a mechanical application of the Rating Schedule to the numeric designations assigned after audiometric evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). The criteria for rating hearing impairment use controlled speech discrimination tests (Maryland CNC) together with the results of pure tone audiometry tests. These results are then charted on Table VI, Table VIA, in exceptional cases as described in 38 C.F.R. § 4.86, and Table VII, as set out in the Rating Schedule. 38 C.F.R. § 4.85. An exceptional pattern of hearing loss occurs when the pure tone threshold at 1000, 2000, 3000, and 4000 Hertz is 55 decibels or more, or when the pure tone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz. 38 C.F.R. § 4.86 (a) Prior to October 30, 2017 Audiological testing was completed in July 2013; the pure tone thresholds for the Veteran’s ears were as follows: HERTZ 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz RIGHT 30 30 30 35 55 LEFT 45 45 50 55 75 The average over the four relevant frequencies (1000 Hz to 4000 Hz) for the left ear was 56 decibels. The average of the four relevant frequencies in the right ear was 37 decibels. Speech recognition scores were 96 percent in the left ear and 92 percent in the right ear. Based on these results, the Veteran does not have exceptional hearing loss in either ear per the guidelines of 38 C.F.R. § 4.86. Application of 38 C.F.R. § 4.85, Table VI to the July 2013 measurements results in assignment of Roman Numeral I to the right ear and Roman Numeral II to the left ear for the purposes of determining a disability rating. This results in a noncompensable rating by intersecting row I with column II of Table VII. 38 C.F.R. § 4.85, Table VII. Additional testing was completed in regard to the Veteran’s hearing loss at a March 2014 VA examination. The pure tone thresholds for the Veteran’s ears were as follows: HERTZ 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz RIGHT 25 35 30 40 60 LEFT 40 45 45 45 60 The average of the four relevant frequencies in the left ear was 49 decibels. The average of the four relevant frequencies in the right ear was 41 decibels. Speech recognition scores were 98 percent in the left ear and 94 percent in the right ear. Based on these results, the Veteran, again, does not have exceptional hearing in either ear per the guidelines of 38 C.F.R. § 4.86. Application of 38 C.F.R. § 4.85, Table VI to the March 2014 measurements results in assignment of Roman Numeral I to the both the left and right ears. This results in a noncompensable rating by intersecting row I with column I of Table VII. 38 C.F.R. § 4.85, Table VII. VA Records from April 2015 to November 2015 specifically document that the Veteran did not have ongoing hearing changes, and the next audiological testing was completed in September 2016. The pure tone thresholds for the Veteran’s ears were as follows: HERTZ 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz RIGHT 30 35 35 55 70 LEFT 45 55 45 90 75 The average of the four relevant frequencies in the left ear was 66 decibels. The average of the four relevant frequencies in the right ear was 49 decibels. Speech recognition scores were not recorded at this time. Based on these results, the Veteran, again, does not have exceptional hearing in either ear per the guidelines of 38 C.F.R. § 4.86. As there are no speech recognition scores, 38 C.F.R. § 4.85, Table VIA would generally be used to determine the Roman Numeral designation. However, Table VIa is to be used when an examiner certifies that use of the speech discrimination test is not appropriate. 38 C.F.R. § 4.85(c). In this case, the Veteran has numerous instances in which speech discrimination tests have been used, and at no point, including on both VA examinations, is it documented that speech recognition scores would be inappropriate. Thus, the Board finds that the lack of speech discrimination scores noted with this audiology testing is not likely due to their inappropriateness, but rather, because the hearing test was not performed for evaluation purposes. Thus, the Board is unable to assess, based on this audiology test alone, whether a higher rating is available. Disability ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric ratings are rendered. Lendenmann, 3 Vet. App. 345. The Veteran had no other VA examinations and there are no other reports of audiological testing in the claims file for this period on appeal. Thus, based on the audiometric findings throughout the appeal period, a compensable rating for a bilateral hearing loss disability is denied prior to October 30, 2017. (b) From October 30, 2017 Audiological testing was again conducted in October 2017. The pure tone thresholds for the Veteran’s ears were as follows: HERTZ 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz RIGHT 45 50 55 65 75 LEFT 45 50 45 50 65 The average of the four relevant frequencies in the left ear was 53 decibels. The average of the four relevant frequencies in the right ear was 61 decibels. Speech recognition scores were 68 percent in the left ear and 76 percent in the right ear at 80 decibels and 72 percent in the left ear and 80 percent in the right ear at the 85 decibel level. Based on these results, the Veteran, again, does not have exceptional hearing in either ear per the guidelines of 38 C.F.R. § 4.86. Application of 38 C.F.R. § 4.85, Table VI to the October 2017 measurements results in assignment of Roman Numeral V to the left ear and Roman Numeral Level IV right ear (using either speech recognition score). This results in a 10 percent rating by intersecting row IV with column V of Table VII. 38 C.F.R. § 4.85, Table VII. Thus, this allows for an earlier date to be awarded for the 10 percent rating. Audiological testing was again conducted in January 2018. The pure tone thresholds for the Veteran’s ears were as follows: HERTZ 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz RIGHT 40 40 40 55 65 LEFT 30 30 35 50 55 The average of the four relevant frequencies in the left ear was 43 decibels. The average of the four relevant frequencies in the right ear was 50 decibels. Speech recognition scores were 64 percent in the left ear and 92 percent in the right ear. The VA treatment provider noted this did not suggest significant changes in hearing sensitivity since the October 2017 audiological testing. Based on these results, the Veteran, again, does not have exceptional hearing in either ear per the guidelines of 38 C.F.R. § 4.86. Application of 38 C.F.R. § 4.85, Table VI to the January 2018 measurements results in assignment of Roman Numeral V to the left ear and Roman Numeral I in the right ear. This results in a noncompensable rating by intersecting row I with column V of Table VII. 38 C.F.R. § 4.85, Table VII. The Veteran testified at a video conference hearing in February 2018. The Veteran testified that his hearing loss was getting worse, noting that he could not hear people talking without his hearing aids and could no longer hear his alarm clock. Audiological testing was again completed at a VA examination in May 2019; the pure tone thresholds for the Veteran’s ears were as follows:   HERTZ 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz RIGHT 35 30 35 45 60 LEFT 55 55 75 70 80 The average over the four relevant frequencies for the left ear was 70 decibels. The average of the four relevant frequencies in the right ear was 43 decibels. Speech recognition scores were 86 percent in the left ear and 88 percent in the right ear. Here, the Veteran’s left ear exhibits exceptional hearing loss per the guidelines of 38 C.F.R. § 4.86 as the Veteran has specified frequencies of 55 from 1000 Hz to 4000 Hz. As a result, 38 C.F.R. § 4.86 directs the rating specialist to determine the Roman Numeral designation for hearing impairment from either Table VI or Table Via, whichever results in the higher numeral. Table VI results in the assignment of Roman Numeral III for the left ear. Table Via results in the assignment of Roman Numeral VI. Thus, the Board will use Roman Numeral VI for the left ear. Application of 38 C.F.R. § 4.85, Table VI to the May 2019 measurements for the right ear results in assignment of Roman Numeral II. This results in a 10 percent rating by intersecting row II with column VI of Table VII. 38 C.F.R. § 4.85, Table VII. Additional testing was completed in regard to the Veteran’s hearing loss in June 2019. The pure tone thresholds for the Veteran’s ears were as follows: HERTZ 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz RIGHT 40 45 35 50 65 LEFT 50 60 60 65 80 The average of the four relevant frequencies in the left ear was 67 decibels. The average of the four relevant frequencies in the right ear was 49 decibels. Speech recognition scores were 80 percent in the left ear and 84 percent in the right ear. Here, again, the Veteran’s left ear exhibits exceptional hearing loss per the guidelines of 38 C.F.R. § 4.86 as the Veteran has specified frequencies of above 55 from 1000 Hz to 4000 Hz. As a result, 38 C.F.R. § 4.86 directs the rating specialist to determine the Roman Numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. Table VI results in the assignment of Roman Numeral IV for the left ear. Table VIa results in the assignment of Roman Numeral V. Thus, the Board will use Roman Numeral V for the left ear. Application of 38 C.F.R. § 4.85, Table VI to the June 2019 measurements for the right ear results in assignment of Roman Numeral II. This results in a 10 percent rating by intersecting row II with column V of Table VII. 38 C.F.R. § 4.85, Table VII. As the audiological testing from October 30, 2017 document that the Veteran’s hearing loss warrants a 10 percent rating, the Board has assigned a 10 percent rating from that date. The Board acknowledges the Veteran’s contentions as to the worsening of his hearing loss and has assigned a 10 percent rating from October 30, 2017. The January 2018 hearing test would not entitle the Veteran to a 10 percent rating; however, the Board finds that because the October 2017 and May 2019 hearing tests both show entitlement to a 10 percent rating, it has resolved reasonable doubt in the Veteran’s favor in keeping him at the 10 percent rating, as it is unlikely his hearing improved between the two tests. To the extent that the Veteran believes a rating higher than 10 percent should be granted, disability ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric ratings are rendered. Lendenmann, 3 Vet. App. 345. Thus, based on the audiometric findings during this part of the appeal period, a rating in excess of 10 percent for a bilateral hearing loss disability from October 30, 2017 is denied. A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Keninger, 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.