Citation Nr: 20060294 Decision Date: 09/14/20 Archive Date: 09/14/20 DOCKET NO. 19-38 370 DATE: September 14, 2020 ORDER Entitlement to a 60 percent evaluation for bilateral hearing loss for the period from November 21, 2017, to January 6, 2020, is granted. Entitlement to a rating greater than 60 percent for bilateral hearing loss for the period beginning on November 21, 2017, is denied. FINDING OF FACT The most probative evidence of record indicates the Veteran has had Level IX hearing loss in both ears for the entirety of the period on appeal. CONCLUSION OF LAW The criteria for entitlement to a 60 percent evaluation for bilateral hearing loss, but no higher, have been met for the entire appeal period beginning on November 21, 2017. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.7, 4.85, 4.86, Diagnostic Code (DC) 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1967 to August 1972. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The claimant has not raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). 1. Entitlement to a rating greater than 30 percent for bilateral hearing loss for the period from November 21, 2017 to January 12, 2018, a compensable rating for the period from January 12, 2018 to January 6, 2020, and greater than a 60 percent evaluation thereafter. The Veteran contends that he is entitled to a 60 percent evaluation for the entire appeal period beginning on November 21, 2017. Currently, the Veteran’s bilateral hearing loss is rated as 30 percent disabling from November 21, 2017 to January 12, 2018; noncompensable from January 12, 2018 to January 6, 2020, and 60 percent disabling thereafter. The Board finds that the Veteran is entitled to a 60 percent disability rating for his bilateral hearing loss for the entire appeal period commencing on November 21, 2017. Ratings for service-connected hearing loss range from noncompensable (0 percent) to 100 percent. These ratings are based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination testing together with the average hearing threshold level as measured by pure tone audiometry tests in the frequencies 1,000, 2,000, 3,000 and 4,000 cycles per second. In evaluating service-connected hearing loss, disability ratings are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are performed. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Diagnostic Code 6100 provides a table for rating purposes (Table VI) to determine a Roman numeral designation (I through XI) for hearing impairment. The hearing impairment is established by a state licensed audiologist including a controlled speech discrimination and the pure tone threshold average, which is the sum of the pure tone thresholds at 1000, 2000, 3000, and 4000 Hertz (Hz), divided by four. See 38 C.F.R. § 4.85. Table VII is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment of each ear. The horizontal row represents the ear having the poorer hearing and the vertical column represents the ear having the better hearing. Id.  Under 38 C.F.R. § 4.86 (a) (exceptional patterns of hearing impairment), when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hz) 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. Each ear is to be evaluated separately. The provisions of 38 C.F.R. § 4.86 (b) provide that when the pure tone threshold is 30 decibels or less at 1000 Hz, 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 evaluated to the next higher Roman numeral. The date of claim in this case is November 29, 2017. As of the date of claim, the Veteran was in receipt of a noncompensable evaluation for bilateral hearing loss. The Board observes that the Veteran’s brief award of a 30 percent evaluation was based on a private audiological examination, dated November 21, 2017, accompanying the claim. The Veteran underwent a VA audiological examination less than two months later, in January 2018, the results of which indicated noncompensable hearing loss. Consequently, the Veteran’s disability evaluation was reduced to a noncompensable evaluation as of the date of that examination. However, the Veteran has challenged the validity of the examination, citing the examiner’s conduct and failure to accord due consideration to the Veteran’s lay contentions during the examination. Thus, another VA audiological examination was ordered, and completed in January 2020. At that examination, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 55 60 70 75 85 LEFT 60 65 75 80 90 Speech audiometry revealed speech recognition ability of 36 percent in the right ear and of 40 in the left ear. Based on the results of these tests, a Roman numeral IX is designated for the right ear and a Roman numeral IX for the left ear from Table VI of 38 C.F.R. § 4.85. Intersecting the numeric designations to the applicable row and column for the right and left ear, a 60 percent rating is derived from Table VII of 38 C.F.R. § 4.85. The provisions of 38 C.F.R. § 4.86 (b) are not applicable as the examination does not show simultaneous puretone threshold of 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz in either ear. Thus, the Veteran was awarded a 60 percent evaluation from January 2020. However, in reviewing the totality of the evidence relevant to the period at issue, the Board agrees with the Veteran that entitlement to a 60 percent evaluation has been warranted for the entire appeal period. Indeed, the Veteran’s severe hearing loss as confirmed by a VA audiological examination is not of recent vintage. The private audiological examination accompanying the claim for increase shows substantially greater hearing loss than was assessed a mere two months later at the January 2018 VA examination. The record as it stands currently shows that January 2018 examination to be an outlier. It is implausible that the Veteran’s hearing loss improved markedly between the date of claim and January 2018, then took a sharp turn for the worse in the period between that examination and January 2020. Far more likely is that the Veteran’s hearing loss has been as severe as he has claimed all the while. Moreover, based on the disparity in the results between VA examinations, and the agreement between the private audiological examination and the more recent VA examination, the Board finds that the January 2020 VA audiological examination to be the only valid audiological examination conducted during the appeal period. Thus, a review of the evidence in a light most favorable to the Veteran compels a finding that entitlement to a 60 percent evaluation has been warranted for the entire appeal period. GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Z. Sahraie, 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.