Citation Nr: 20052959 Decision Date: 08/10/20 Archive Date: 08/10/20 DOCKET NO. 15-25 005 DATE: August 10, 2020 ORDER An initial compensable rating for bilateral hearing loss prior to October 14, 2019, and a rating in excess of 20 percent thereafter, are denied. FINDINGS OF FACT 1. The Veteran’s bilateral hearing loss has been manifested by no worse than level I hearing impairment in both ears prior to October 14, 2019. 2. The Veteran’s bilateral hearing loss has been manifested by no worse than level V hearing impairment in both ears from October 14, 2019. CONCLUSIONS OF LAW 1. The criteria for an initial compensable rating for bilateral hearing loss prior to October 14, 2019 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.85, Diagnostic Code (DC) 6100. 2. The criteria for a rating in excess of 20 percent for bilateral hearing loss from October 14, 2019 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.85, DC 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1963 to January 1970. The case is on appeal from a May 2014 rating decision. In a February 2019 decision, the Board remanded the claim for further development. This case is properly before the Board in the Legacy appeal system. The Veteran improperly attempted to opt into the Appeals Modernization Act (AMA) system by submitting a Form 20-0996 without the box checked to “opt-in from a SOC/SSOC.” Thus, as the Veteran had already perfected an appeal to the Board with the filing of his June 2015 Form 9, the appeal remains in the Legacy system. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). An initial compensable rating for bilateral hearing loss prior to October 14, 2019; and in excess of 20 percent thereafter. General Legal Criteria Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999). 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. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3. Specific Rating Criteria Disability evaluations for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Examinations are conducted using the controlled speech discrimination tests together with the results of the pure tone audiometry test. See 38 C.F.R. § 4.85. The results are analyzed using tables contained in 38 C.F.R. § 4.85, DC 6100. The rating schedule for hearing loss provides that evaluations of hearing loss range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests together with average hearing threshold levels as measured by pure tone audiometry tests in the frequencies 1000, 2000, 3000 and 4000 cycles per second (Hertz). To evaluate the degree of disability from defective hearing, the rating schedule 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, DC 6100. 38 C.F.R. § 4.86(a) provides that when the pure tone 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 hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral. The provisions of 38 C.F.R. § 4.86(b) provide that 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. That numeral will then be elevated to the next higher Roman numeral. Each ear will be evaluated separately. Analysis Prior to the original claim, a private audiology test administered in August 2013 reported the following pure tone thresholds: HERTZ 1000 2000 3000 4000 Right 25 30 30 35 Left 20 30 45 50 Thus, the average pure tone thresholds were 30 for the right ear and 36.25 for the left ear. Speech discrimination scores were 96 percent bilaterally. The results correspond to level I hearing impairment I for both ears, even assuming the speech recognition scores were Maryland CNC. When combined, the Veteran’s hearing loss is considered noncompensably disabling. See Table VII. In addition, the findings do not show an exceptional pattern of hearing impairment and, thus, 38 C.F.R. § 4.86 is not applicable. 38 C.F.R. §§ 4.85, 4.86, DC 6100. During an April 2014 VA examination conducted in connection with the claim, the Veteran reported difficulty hearing his wife and grandchildren and having to ask for repetition. The examiner reported the following pure tone thresholds in decibels: HERTZ 1000 2000 3000 4000 Right 25 35 50 50 Left 20 35 60 65 The average pure tone threshold was 40 in the right ear and 45 in the left ear. Speech discrimination scores were 96 percent bilaterally. The results correspond to level I hearing loss in both ears. When combined, the Veteran’s hearing loss is considered noncompensably disabling. See Table VII. In addition, the findings do not show an exceptional pattern of hearing impairment and, thus, 38 C.F.R. § 4.86 is not applicable. 38 C.F.R. §§ 4.85, 4.86, DC 6100. Medical records provide that, in June 2014, a VA physician found the Veteran hearing impaired and that the Veteran was fitted for hearing aids in August 2014. In his June 2015 VA Form 9, the Veteran reported that his hearing has worsened since his last VA examination for hearing loss in April 2014, as evidenced by his being issued hearing aids for both ears by VA in August 2014. Pursuant to the Board’s remand, the Veteran was afforded another VA audiological examination in regard to his claim in October 2019. The Veteran reported that he constantly asks others to repeat themselves, that he cannot hear and/or understand his grandchildren, and that he avoids social situations because of his difficulty hearing and communicating with others. The examiner reported the following pure tone thresholds, in decibels: HERTZ 1000 2000 3000 4000 Right 50 80 90 100 Left 35 80 90 100 The average pure tone threshold was 80 in the right ear and 76 in the left ear. Speech discrimination scores were 80 percent bilaterally. The results correspond to level V hearing loss in both ears. When combined, the Veteran’s hearing loss is considered 20 percent disabling. In addition, the findings do not show an exceptional pattern of hearing impairment and, thus, 38 C.F.R. § 4.86 is not applicable. 38 C.F.R. §§ 4.85, 4.86, DC 6100. Although the 20 percent level was not mechanically shown until the date of the October 14, 2019 VA examination, an effective date for an increased rating should not be assigned mechanically based on the date of a diagnosis. Rather, all of the facts should be examined to determine the date that the disability first manifested. the effective date for an increased rating—as well as for an initial rating or for staged ratings—is predicated on when the increase in the level of disability can be ascertained. Swain v. McDonald, 27 Vet. App. 219, 224 (2015); DeLisio v. Shinseki, 25 Vet. App. 45, 56 (2011). While the April 2014 VA examination report persuasively shows that no more than a noncompensable rating is warranted for that time period, by the time the Veteran went to VA audiology on June 12, 2014, an increase in severity appears to have occurred. At that time, he was scheduled for fitting new hearing aids in August 2014. Thus, when resolving reasonable doubt in the Veteran’s favor, the Board finds that a factually ascertainable increase to the 20 percent level occurred on June 12, 2014. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Swain, 27 Vet. App. at 224. In sum, the Board finds an effective date for the 20 percent rating of June 12, 2014, is warranted. However, the preponderance of evidence is against a compensable rating prior to June 12, 2014, or in excess of 20 percent thereafter. The benefit of the doubt doctrine has been applied and not further applicable. RYAN T. KESSEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Becton, 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.