Citation Nr: 21000429 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 14-27 863A DATE: January 5, 2021 ORDER An initial compensable rating for bilateral hearing loss prior to July 7, 2018 is denied. An initial rating of 10 percent for bilateral hearing loss is granted, effective July 7, 2018. FINDINGS OF FACT 1. Prior to July 7, 2018, the Veteran's bilateral hearing loss was manifested by a puretone threshold average no higher than 61 decibels in his right ear and 59 decibels in his left ear, as well as a speech discrimination score using the Maryland CNC word list no lower than 78 percent in his right ear and 80 percent in his left ear. 2. As of July 7, 2018, the Veteran's bilateral hearing loss was manifested by puretone thresholds of 55 decibels or higher at 1000 Hertz, 2000 Hertz, 3000 Hertz, and 4000 Hertz. CONCLUSIONS OF LAW 1. Prior to July 7, 2018, the criteria for a compensable, initial rating for bilateral hearing loss have not been satisfied. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.3, 4.85, 4.86, Diagnostic Code 6100. 2. As of July 7, 2018, the criteria for a 10 percent rating, but no higher, for bilateral hearing loss have been satisfied. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.3, 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had unverified active service in the Army from August 1975 to December 1975 and verified service from September 1976 to May 1978 and November 1978 to November 1982. This matter comes before the Board of Veterans’ Appeals on appeal from an April 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran testified at a hearing before the undersigned Veterans Law Judge in March 2018. A transcript is of record. This issue was previously before the Board in May 2018 and May 2020 when it was remanded for further development. That development having been completed, this matter has returned to the Board for further appellate review. 1. An initial compensable rating for bilateral hearing loss prior to July 7, 2018 is denied. 2. An initial rating of 10 percent for bilateral hearing loss is granted, effective July 7, 2018. The Veteran's bilateral hearing loss had been assigned a 0 percent rating, effective from April 24, 2013; however, for the following reasons, the Board finds the criteria for a compensable rating of 10 percent as of July 7, 2018 have been satisfied. VA has adopted a Schedule for Rating Disabilities to evaluate service-connected disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 3.321; see generally, 38 C.F.R. § Part IV. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10. The percentage ratings in the Schedule for Rating Disabilities represent, as far as practicably can be determined, the average impairment in earning capacity resulting from service-connected diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Diagnostic codes in the rating schedule identify various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. All reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Separate ratings for distinct disabilities resulting from the same injury or disease can be assigned so long as the symptomatology for one condition is not "duplicative or overlapping with the symptomatology" of the other condition. See Amberman v. Shinseki, 570 F.3d 1377, 1381 (Fed. Cir. 2009); Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). However, the evaluation of the same disability or its manifestations under various diagnoses, which is known as pyramiding, is to be avoided. 38 C.F.R. § 4.14. Because the level of disability may have varied over the course of the claim, the rating may be "staged" higher or lower for segments of time during the period under review in accordance with such variations. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). In initial rating cases, where the appeal stems from a granted claim of service connection with respect to the initial evaluation assigned, VA assesses the level of disability from the effective date of service connection. See Fenderson, 12 Vet. App. at 125; 38 U.S.C. § § 5110; 38 C.F.R. § 3.400. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102 (providing, in pertinent part, that reasonable doubt will be resolved in favor of the claimant). When the evidence supports the claim, or is in relative equipoise, the claim will be granted. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). If the preponderance of the evidence weighs against the claim, it must be denied. Id. Hearing loss is evaluated under 38 C.F.R. § 4.85, DC 6100. In evaluating service-connected hearing loss, disability ratings are derived from 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). 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 Maryland CNC speech discrimination test 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). 38 C.F.R. § 4.85. To evaluate the degree of disability from defective hearing, the 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, DC 6100. VA audiometric examinations are generally conducted using a controlled speech discrimination test together with the results of a puretone audiometry test. Table VI in 38 C.F.R. § 4.85 is then used to determine the numeric designation of hearing impairment based on the puretone threshold average derived from the audiometry test, and from the results of the speech discrimination test. The horizontal rows in Table VI represent nine categories of the percentage of discrimination based on the controlled speech discrimination test. The vertical columns in Table VI represent nine categories of decibel loss based on the puretone audiometry test. The numeric designation of impaired hearing (Levels I through XI) is determined for each ear by intersecting the horizontal row corresponding to the percentage of discrimination and the vertical column corresponding to the puretone decibel loss. The percentage evaluation is derived from Table VII in 38 C.F.R. § 4.85 by intersecting the vertical column corresponding to the numeric designation for the ear having the better hearing acuity (as determined by Table VI) and the horizontal row corresponding to the numeric designation level for the ear having the poorer hearing acuity (as determined by Table VI). For example, if the better ear has a numeric designation Level of "V" and the poorer ear has a numeric designation Level of "VII," the percentage evaluation is 30 percent. VA regulation also includes two provisions for evaluating certain patterns of hearing impairment that cannot always be accurately assessed under 38 C.F.R. § 4.85 because the speech discrimination test may not reflect the severity of communicative functioning experienced by those with these types of patterns. 64 Fed. Reg. 25203 (May 11, 1999). The Board will address each in turn. Under 38 C.F.R. § 4.86(a), if puretone thresholds in each of the specified frequencies of 1000, 2000, 3000, and 4000 Hertz are 55 decibels or more, an evaluation will be based either on Table VI or Table VIa in 38 C.F.R. § 4.85, whichever results in a higher evaluation. Each ear will be evaluated separately. This provision corrects for the fact that with a 55-decibel threshold level (the level at which speech becomes essentially inaudible) the high level of amplification needed to attempt to conduct a speech discrimination test would be painful to most people, and speech discrimination tests may therefore not be possible or reliable. See 64 Fed. Reg. 25209 (May 11, 1999). Under 38 C.F.R. § 4.86(b), when the puretone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz, the Roman numeral designation for hearing impairment will be chosen from either Table VI or Table VIa under 38 C.F.R. § 4.85, whichever results in the higher Roman numeral, and that numeral will then be elevated to the next higher numeral. This provision accounts for a pattern of hearing impairment that is an extreme handicap in the presence of any environmental noise, as a speech discrimination test conducted in a quiet room with amplification of sound does not always reflect the extent of impairment experienced in the ordinary environment. See 64 Fed. Reg. 25209 (May 11, 1999). The Veteran was afforded a VA audiological examination in April 2013. That examination reflects that he exhibited puretone thresholds, in decibels, as follows: HERTZ 1000 2000 3000 4000 RIGHT 35 40 55 60 LEFT 50 50 60 60 The April 2013 VA examination report shows that based on audiometric and speech discrimination testing, the Veteran's right ear hearing loss was manifested by a puretone threshold average of 48 decibels and a speech discrimination score of 84 percent. His left ear hearing loss was manifested by a puretone threshold average of 55 decibels and a speech discrimination score of 80 percent. Applying these values for the right ear to Table VI, the puretone threshold average of 48 decibels and the speech recognition score of 84 percent together yield a designation of Level II for the right ear. The puretone threshold average of 55 decibels and the speech recognition score of 80 percent yield a designation of Level IV for the left ear. The point where designations II and IV intersect in Table VII yields a 0 percent rating. Because the Veteran's puretone thresholds were not 55 decibels or more at each of the specified frequencies as shown in the April 2013 VA examination, section 4.86(a) does not apply to this period. Similarly, because the Veteran's puretone thresholds at 2000 Hertz were not 70 decibels or more at 2000 Hertz in either ear, section 4.86(b) does not apply. The Veteran underwent a private audiological examination in May 2013 at Putnam ENT. Speech recognition scores are reported, however, it is unclear whether that test conformed to the requirements of 38 C.F.R. § 4.85, which requires the controlled speech discrimination test be done using Maryland CNC. Attempts to clarify these results with the medical provider were unsuccessful, as the doctor had retired and closed his business. See Report of General Information, dated May 12, 2020. The Veteran also underwent private audiological examinations at Florida Medical Hearing Centers in May 2013 and May 2015. The examiner that conducted the testing in May 2015 reported that the results were unreliable. Further, the May 2013 test results are inadequate for rating purposes as no speech recognition scores were reported. See 38 C.F.R. § 4.85. On VA examination on July 7, 2018, the Veteran exhibited puretone thresholds, in decibels, as follows: HERTZ 1000 2000 3000 4000 RIGHT 55 60 65 65 LEFT 55 60 60 60 The July 2018 VA examination report shows that based on audiometric and speech discrimination testing, the Veteran's right ear hearing loss was manifested by a puretone threshold average of 61 decibels and a speech discrimination score of 78 percent. His left ear hearing loss was manifested by a puretone threshold average of 59 decibels and a speech discrimination score of 84 percent. Applying these values for the right ear to Table VI, the puretone threshold average of 61 dB and the speech recognition score of 78 percent together yield a designation of Level IV for the right ear. The puretone threshold average of 59 dB and the speech recognition score of 84 percent yield a designation of Level III for the left ear. The point where designations IV and III intersect in Table VII yields a 10 percent rating. Since the July 2018 VA audiograms show puretone thresholds in the right and left ear of 55 decibels or higher at each of the relevant frequencies, § 4.86(a) applies to the Veteran's right and left ear hearing loss as well. The recorded puretone threshold average for the right ear during the July 2018 examination was 61 decibels, while the highest recorded puretone threshold average for the left ear during this exam was 59 decibels. Applying this value to table VIa yields a designation of IV for the right ear and IV for the left ear. The point where designations IV and IV intersect on Table VII yields a 10 percent rating. See 38 C.F.R. § 4.85, DC 6100. Because the Veteran's puretone thresholds at 2000 Hertz have were not 70 decibels or more at 2000 Hertz in either ear, section 4.86(b) does not apply. This means that prior to July 2018, the Veteran's bilateral hearing loss did not meet or more nearly approximate the criteria for a compensable rating. However, as of July 7, 2018, a 10 percent rating is warranted. Because the preponderance of the evidence weighs against a higher initial evaluation before or after July 7, 2018, the benefit-of-the-doubt rule does not apply. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3; Gilbert, 1 Vet. App. at 55. As the evidence does not support higher ratings at any other point during the period under review, further staging is not warranted. See Hart, 21 Vet. App. at 509-10; Fenderson, 12 Vet. App. at 126. Although a January 2020 VA examination took place, the Veteran’s puretone thresholds could not be tested despite repeated attempts and reinstruction. The test results were not reliable and were not suitable for rating purposes in the examiner’s opinion and were therefore not reported. The test results were strongly suggestive of a non-organic component, but the examiner failed to explain what they meant by this. The test results for speech discrimination score (Maryland CNC word list) were also recorded as “CNT [Could Not Test].” As a result, the Board requested a subsequent examination which took place in June 2020. The June 2020 VA examination reflects the Veteran exhibited puretone thresholds, in decibels, as follows: HERTZ 1000 2000 3000 4000 RIGHT 50 50 65 70 LEFT 50 45 45 70 The June 2020 VA examination report shows that based on audiometric and speech discrimination testing, the Veteran's right ear hearing loss was manifested by a puretone threshold average of 59 decibels and a speech discrimination score of 84 percent. His left ear hearing loss was manifested by a puretone threshold average of 53 decibels and a speech discrimination score of 88 percent. Applying these values for the right ear to Table VI, the puretone threshold average of 59 dB and the speech recognition score of 84 percent together yield a designation of Level III for the right ear. The puretone threshold average of 53 dB and the speech recognition score of 88 percent yield a designation of Level II for the left ear. The point where designations III and II intersect in Table VII yields a 0 percent rating. Because the Veteran's puretone thresholds were not 55 decibels or more at each of the specified frequencies as shown in the June 2020 VA examination, section 4.86(a) does not apply to this period. Similarly, because the Veteran's puretone thresholds at 2000 Hertz have were not 70 decibels or more at 2000 Hertz in either ear, section 4.86(b) does not apply. While the Board acknowledges that the results of the June 2020 VA examination do not meet the criteria for a 10 percent rating, the Board will ultimately resolve this case in the Veteran’s favor given that the puretone thresholds in 2020 are close to those recorded on VA examination in July 2018. With this in mind, the evaluation of the Veteran's bilateral hearing loss does not warrant referral for extraschedular consideration. See 38 C.F.R. § 3.321(b); Thun v. Peake, 22 Vet. App. 111, 114 (2008); aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). In this regard, because the ratings provided under the VA Schedule for Rating Disabilities are averages, it follows that an assigned rating may not completely account for each individual veteran's circumstances, but nevertheless would still be adequate to address the average impairment in earning capacity caused by the disability. Thun, 22 Vet. App. at 114. However, in exceptional situations where the rating is inadequate, it may be appropriate to refer the case for extraschedular consideration. Id. The governing norm in these exceptional cases is a finding that the disability at issue presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. Id. 38 C.F.R. § 3.321(b)(1). These criteria have been broken up into a three-step inquiry: (1) The schedular criteria must be inadequate to describe the claimant's disability level and symptomatology; (2) There must be related factors such marked interference with employment or frequent periods of hospitalization; (3) If so, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination of whether the claimant's disability picture requires the assignment of an extraschedular rating. Thun, 22 Vet. App. at 114. In the March 2018 hearing, the Veteran stated that he was provided hearing aids by VA that did not work. According to an audiology report from April 2015, the Veteran complained about his hearing aids hurting his ears. When the aids were checked, both the batteries were corroded and likely caused his ears to feel plugged. See VA Treatment Records, dated August 2018. The Veteran ultimately went to a private physician to have new hearing aids put in. According to the estimation of the Veteran’s representative, hearing aids should result in a compensable rating. A comparison of the Veteran's bilateral hearing loss disability with the schedular criteria shows that the rating criteria are adequate to capture the disability level and symptomatology. The Veteran's hearing loss and associated functional impairment are reasonably described by 38 C.F.R. § 4.85, DC 6100 and 38 C.F.R. § 4.86. Specifically, his difficulty hearing and use of hearing aids are measured by puretone audiometry and speech recognition testing, the results of which determine the schedular evaluation. See 38 C.F.R. §§ 4.85, 4.86; cf. 64 Fed. Reg. 25209 (May 11, 1999) (indicating that the current rating criteria take into account certain patterns of hearing loss that may be an "extreme" handicap in the presence of "any" environmental noise, which also implies that the presence of environmental noise is also contemplated for other patterns of hearing loss); see Chudy v. O'Rourke, 30 Vet. App. 34, 37-38 (2018); cf. Doucette v. Shulkin, 28 Vet. App. 366, 369 (2017) (holding that the rating criteria applicable to hearing loss contemplated the functional effects of decreased hearing and difficulty understanding speech in an everyday work environment, as these are precisely the effects that audiometric tests are designed to measure). These test results serve as markers of disability in terms of one's ability "to function under the ordinary conditions of daily life including employment," which forms the basis of all disability evaluations. See 38 C.F.R. § 4.10. The fact that a challenge or circumstance is not described in the rating criteria, which generally contain no such description whatsoever, does not in itself indicate an unusual disability picture not contemplated by the rating criteria. Rather, there must be evidence that a given symptom or challenge is not contemplated by the rating criteria such as to render their application impractical. There is no such evidence in this case. The fact that the hearing loss disability may impose external challenges or circumstances unique to the Veteran and not specifically mentioned in the criteria cannot alone show that application of the regular schedular standards is impractical. Neither the Veteran's symptoms nor their severity render application of the ordinary schedular standard impractical. See 38 C.F.R. §§ 3.321(b), 4.85. In making this determination, the Board does not discount or wish to gloss over the severity of the Veteran's hearing loss disability and the challenges it causes. The Board's finding is limited to whether the schedular criteria are adequate to evaluate it for rating purposes under the applicable legal framework. In sum, the evidence does not show symptoms or disabling manifestations of the Veteran's hearing loss different from, or more severe than, what is contemplated by the schedular criteria such as to render their application impractical. This means the first step of the inquiry is not satisfied. See Thun, 22 Vet. App. at 115; 38 C.F.R. § 3.321(b). Therefore, the Board will not refer the evaluation of the Veteran's hearing loss disability for extraschedular consideration. (Continued on the next page)   Accordingly, an initial rating of 10 percent for bilateral hearing loss is granted effective July 7, 2018, but not earlier. P.M. DILORENZO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Gonzalez, Associate Attorney 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.