Citation Nr: 20052938 Decision Date: 08/10/20 Archive Date: 08/10/20 DOCKET NO. 11-01 941 DATE: August 10, 2020 ORDER Entitlement to an initial compensable rating for bilateral hearing loss is denied. FINDING OF FACT The most probative evidence indicates the Veteran’s bilateral hearing loss disability has been manifested by loss of hearing acuity measured at no worse than Level I hearing, bilaterally. CONCLUSION OF LAW The criteria for an initial compensable rating for bilateral hearing loss have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.86, Diagnostic Code 6100 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from January 1967 to January 1971. This matter is on appeal from a March 2010 rating decision. In August 2012, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of this hearing is of record. In November 2013, December 2017, and March 2019, this matter was remanded by the Board for further development. It is now ready for adjudication. Increased Rating Claim Disability ratings are determined by the application of the VA's Schedule for Rating Disabilities. Separate diagnostic codes identify the various disabilities, which are based, as far as practically can be determined, on average impairment in earning capacity. 38 U.S.C. § 1155 (2012); 38 C.F.R. Part 4 (2019). When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Board will also consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 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 (2019). Reasonable doubt regarding the degree of disability will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3 (2019). In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21 (2019). At the time of an initial rating, separate ratings can be assigned for separate periods of time based on facts found, a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999). The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14 (2019). The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). The Veteran contends that his service-connected bilateral hearing loss is more severe than his initial noncompensable (zero percent) rating would indicate. Disability ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are made. Bruce v. West, 11 Vet. App. 405 (1998); Lendenmann v. Principi, 3 Vet. App. 345 (1992). The regulations set forth eleven auditory acuity levels, designated from Roman numerals I to XI, in escalating order of hearing impairment. 38 C.F.R. § 4.85 (2019). The appropriate auditory acuity level is determined based on a combination of the percentage of speech discrimination and the puretone threshold average. Additional considerations apply when exceptional patterns of hearing loss are demonstrated, which are defined as either a) puretone averages of 55 or greater at 1000, 2000, 3000, and 4000 Hertz, or; b) a puretone threshold of 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz. 38 C.F.R. § 4.86 (a) (2019). Once an acuity level is established for each ear, Table VII, Percentage Evaluations for Hearing Impairment, is used to determine the appropriate disability evaluation. The appropriate rating is determined based on a combination of the levels of hearing impairment established for each ear. Hearing loss disabilities are rated by application of a mechanical process that is explained here. Initially, VA must determine the Roman numerical designation for the degree of hearing impairment in each ear based upon a combination of the percent of speech discrimination and the pure tone threshold average. 38 C.F.R. § 4.85. In general, the Roman numerical designation is determined through application of 38 C.F.R. § 4.85 (h), Table VI. Under Table VI, the horizontal rows represent eight separate ranges of pure tone threshold averages, as demonstrated through audiometric testing for the frequencies at 1000, 2000, 3000, and 4000 Hertz. The average pure tone threshold is calculated by determining the sum of the pure tone thresholds demonstrated at the four aforementioned frequencies and dividing that sum by four. The vertical columns under Table VI represent nine separate ranges of speech discrimination percentage, as determined through Maryland CNC testing. The Roman numerical designation of impaired efficiency is determined for each ear by intersecting the horizontal row appropriate for the calculated pure tone threshold average and the vertical column appropriate for the demonstrated percentage of speech discrimination. 38 C.F.R. § 4.85 (b) (2019). Table VIA, which assigns a Roman numeral designation based solely on the puretone threshold average, is used when the examiner certifies that 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). In addition, where audiometric testing reveals an exceptional pattern of hearing impairment, Roman numerical designations may be determined under 38 C.F.R. § 4.85 (h), Table VIA (2019). Pursuant to 38 C.F.R. § 4.86 , an exceptional pattern of hearing impairment exists where audiometric testing reveals either: (1) pure tone thresholds of 55 decibels or more at each of the frequencies at 1000, 2000, 3000, and 4000 Hertz; or (2) a pure tone threshold at 30 decibels or less at 1000 Hertz and 70 decibels or greater at 2000 Hertz. 38 C.F.R. §§ 4.85 (h); 4.86 (2019). After the Roman numerical designation has been determined for each ear, VA then determines the appropriate disability rating through application of 38 C.F.R. § 4.85 (h), Table VII (2019). Table VII is applied by intersecting the appropriate horizontal row (which represents the Roman numerical designation for the poorer ear) with the appropriate vertical column (which represents the Roman numerical designation for the better ear). 38 C.F.R. § 4.85 (e) (2019). In Martinak v. Nicholson, 21 Vet. App. 447 (2007), the Court 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. Martinak, 21 Vet. App. at 455. The Court also noted, however, that even if an audiologist's description of the functional effects of the veteran’s hearing disability was somehow defective, the veteran bears the burden of demonstrating any prejudice caused by a deficiency in the examination. Id. On September 2008 private audiometric examination, puretone thresholds for the right ear, in decibels, at 1000, 2000, 3000, and 4000 Hz were as follows: 25, 40, 40, and 40 decibels; the average puretone decibel loss was 36 decibels. The pure tone thresholds for the left ear, in decibels, at 1000, 2000, 3000, and 4000 Hz as follows: 35, 45, 45, and 45 decibels; the average puretone decibel loss was 43 decibels. However, since it is unclear if Maryland CNC standards were used these findings are inadequate for rating purposes. VA treatment records include a December 2009 audiology consult report. The assessment was hearing within normal limits through 1000 Hz with a bilateral mild high frequency sensorineural hearing loss. Speech recognition scores were 100% bilaterally. On December 2009 VA audio Disability Benefits Questionnaire (DBQ) examination, puretone thresholds for the right ear, in decibels, at 1000, 2000, 3000, and 4000 Hz were as follows: 25, 35, 45, and 40 decibels; the average puretone decibel loss was 36 decibels. The pure tone thresholds for the left ear, in decibels, at 1000, 2000, 3000, and 4000 Hz as follows: 25, 40, 45, and 40 decibels; the average puretone decibel loss was 38 decibels. The CNC word list speech recognition score was 98%, bilaterally. The audiologist diagnosed mild to moderate bilateral hearing loss. Under Table VI, these audiometric findings correspond to Level I hearing loss, bilaterally. Those Roman numerical designations equate to a noncompensable disability rating under Table VII. Regarding the functional impact of the bilateral hearing loss disability, the Veteran reported hearing difficulty and the audiologist opined that the bilateral hearing loss disability had significant effects on his occupation. VA treatment records include a September 2010 audiology note which indicates a significant communication disorder due to hearing loss. The audiologist opined that he would benefit from amplification and audiologist management of the hearing loss. In October 2010, he was fitted for and issued hearing aids. On September 2010 VA audio examination puretone thresholds for the right ear, in decibels, at 1000, 2000, 3000, and 4000 Hz were as follows: 30, 40, 50, and 50 decibels; the average puretone decibel loss was 36 decibels. The pure tone thresholds for the left ear, in decibels, at 1000, 2000, 3000, and 4000 Hz as follows: 30, 40, 50, and 50 decibels; the average puretone decibel loss was 38 decibels. The CNC word list speech recognition score was 96% in the right ear and 100% in the left ear. Mild to moderate sensorineural hearing loss, bilaterally, was diagnosed. Under Table VI, these audiometric findings correspond to Level I hearing loss, bilaterally. Those Roman numerical designations equate to a noncompensable disability rating under Table VII. Regarding the functional impact of the bilateral hearing loss disability, the examining audiologist indicated that it had significant effects on his occupation. On April 2011 VA audio examination, puretone thresholds for the right ear, in decibels, at 1000, 2000, 3000, and 4000 Hz were as follows: 30, 45, 50, and 50 decibels; the average puretone decibel loss was 44 decibels. The pure tone thresholds for the left ear, in decibels, at 1000, 2000, 3000, and 4000 Hz as follows: 25, 40, 45, and 40 decibels; the average puretone decibel loss was 38 decibels. The CNC word list speech recognition score was 94% in the right ear and 96% in the left ear. Regarding the functional impact of the bilateral hearing loss disability, the examining audiologist indicated that it had significant effects on his occupation in due to difficulty hearing. Under Table VI, these audiometric findings correspond to Level I hearing loss, bilaterally. Those Roman numerical designations equate to a noncompensable disability rating under Table VII. In August 2012, the Veteran testified that he had trouble hearing background noise. He also had trouble distinguishing what direction sounds were coming from. He had difficulty hearing without his hearing aids. Pursuant to the Board’s November 2013 remand, on December 2013 VA hearing loss and tinnitus DBQ examination, puretone thresholds for the right ear, in decibels, at 1000, 2000, 3000, and 4000 Hz were as follows: 30, 45, 45, and 45 decibels; the average puretone decibel loss was 41 decibels. The pure tone thresholds for the left ear, in decibels, at 1000, 2000, 3000, and 4000 Hz as follows: 30, 45, 50, and 50 decibels; the average puretone decibel loss was 44 decibels. The CNC word list speech recognition score was 92% in the right ear and 90% in the left ear. Under Table VI, these audiometric findings correspond to Level I hearing loss, bilaterally. Those Roman numerical designations equate to a noncompensable disability rating under Table VII. Regarding the functional impact of the bilateral hearing loss disability, the disability impacted ordinary conditions of daily life, including work. He had difficulty understanding speech clearly in noisy settings with competing sounds. He preferred to look at someone’s face when speaking to them to help him hear better. The examining audiologist diagnosed mild to moderate hearing loss with good speech discrimination in both ears which the audiologist opined allowed him to communicate adequately in quiet settings without background interference. He opined that he would do better in close proximity to the speaker and would improve his speech understanding if he could read lips. He would have communicative difficulties in high noise environments due to a decreased general ability to understand speech clearly. He would be able to use a telephone adequately and use a volume control to improve hearing. In the past, he worked as a barber, a tire tester (road driving), and in a warehouse. He would be able to perform those duties with his current hearing loss although he would have difficulty hearing with hearing protection in noisy settings for alarms/signalers. One-to-one communication would be preferable for a working environment. On February 2017 VA hearing loss and tinnitus DBQ examination, puretone thresholds for the right ear, in decibels, at 1000, 2000, 3000, and 4000 Hz were as follows: 40, 45, 45 and 50 decibels; the average puretone decibel loss was 45 decibels. The pure tone thresholds for the left ear, in decibels, at 1000, 2000, 3000, and 4000 Hz as follows: 30, 40, 40, and 50 decibels; the average puretone decibel loss was 40 decibels. The CNC word list speech recognition score was 100%, bilaterally. Under Table VI, these audiometric findings correspond to Level I hearing loss, bilaterally. Those Roman numerical designations equate to a noncompensable disability rating under Table VII. Regarding functional impact, the Veteran’s bilateral hearing loss disability impacted ordinary conditions of daily life, including the ability to work. He used hearing aids, but had difficulty hearing his wife when he removed them. People had to repeat themselves without hearing aids. On August 2017 private audiogram, puretone thresholds for the right ear, in decibels, at 1000, 2000, 3000, and 4000 Hz were as follows: 35, 45, 50, and 50 decibels; the average puretone decibel loss was 45 decibels. The pure tone thresholds for the left ear, in decibels, at 1000, 2000, 3000, and 4000 Hz as follows: 35, 45, 45, and 45 decibels; the average puretone decibel loss was 43 decibels. While the speech recognition threshold was 100% bilaterally, it is unclear if Maryland CNC standards were used. As such, these findings are inadequate for rating purposes. VA treatment records include a November 2018 VA audiogram which the VA audiologist noted was inadequate for rating purposes. Pursuant to the Board’s March 2019 remand, on November 2019 VA hearing loss and tinnitus DBQ examination, puretone thresholds for the right ear, in decibels, at 1000, 2000, 3000, and 4000 Hz were as follows: 45, 50, 55, and 50 decibels; the average puretone decibel loss was 50 decibels. The pure tone thresholds for the left ear, in decibels, at 1000, 2000, 3000, and 4000 Hz as follows: 40, 45, 45, and 50 decibels; the average puretone decibel loss was 45 decibels. The CNC word list speech recognition score was 94%, bilaterally. Under Table VI, these audiometric findings correspond to Level I hearing loss, bilaterally. Those Roman numerical designations equate to a noncompensable disability rating under Table VII. Regarding functional impact, the bilateral hearing loss disability impacted the Veteran’s ordinary conditions of daily life, including the ability to work. He stated that if he was watching television and someone said something to him, he was unable to understand the television and the speaker. When his wife spoke to him, he had to look at her to understand her. Applying the relevant rating criteria, the Board notes that an initial compensable rating, for the Veteran’s bilateral hearing loss is not warranted. The Board is mindful that an audiologist must provide a description of the functional effects caused by a hearing loss disability. Martinak v. Nicholson, 21 Vet. App. 447 (2007). On September 2010, April 2011, December 2013, February 2017, and November 2019 VA examination, the Veteran complained of difficulty understanding speech, hearing without hearing aids, and hearing in noisy environments. The Board finds these comments are sufficient to comply with the applicable VA policies. Id. The Board notes that the Veteran is competent to report complaints such as difficulty hearing as this observation comes to him through his senses. Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Board also acknowledges the Veteran's belief that his symptoms are of such severity as to warrant a higher rating and has taken these contentions seriously. However, the Veteran is not competent to identify a specific level of disability of his bilateral hearing loss according to the appropriate diagnostic code. On the other hand, such competent evidence concerning the nature and extent of the Veteran’s bilateral hearing loss has been provided by the examining VA audiologists who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports) directly addresses the criteria under which this disability is evaluated. (Continued on the next page)   Finally, neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Adams, 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.