Citation Nr: 21000505 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 14-06 410 DATE: January 5, 2021 ORDER Entitlement to an initial compensable rating prior to January 15, 2020, for service-connected bilateral hearing loss is denied. Entitlement to a 10 percent disability rating, but no higher, for service-connected bilateral hearing loss, is granted, effective January 15, 2020, subject to the rules and regulations governing the payment of monetary benefits. FINDINGS OF FACT 1. Prior to January 15, 2020, the Veteran’s service-connected bilateral hearing loss was manifested, at its worst, by Level I hearing in the right ear and Level IV hearing in the left ear. 2. Beginning January 15, 2020, the Veteran’s service-connected bilateral hearing loss was manifested, at its worst, by Level III hearing in the right ear and Level V hearing in the left ear. CONCLUSIONS OF LAW 1. The criteria for an initial rating for service-connected bilateral hearing loss prior to January 15, 2020, are not met. 38 U.S.C. § 1155, 5107 (2012); 38 C.F.R. §§ 3.655, 4.1, 4.3, 4.85, 4.86, Diagnostic Code 6100 (2019). 2. The criteria for a 10 percent disability rating for service-connected bilateral hearing loss are met, effective January 15, 2020. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.655, 4.1, 4.3, 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1968 to June 1997. The Board notes that, in response to a November 2019 letter sent by the AOJ, the Veteran submitted a VA Form 21-4142, General Release for Medical Provider Information to the Department of Veterans Affairs (VA), indicating that he received treatment from an ear, nose, and throat specialist and a surgery center. Records were received from the ear, nose, and throat specialist in December 2019. Later in December 2019, the surgery center responded that the request for records could not be processed because there were no records for the dates listed by the Veteran on his VA Form 21-4142. In October 2020, the AOJ contacted the Veteran to notify him of the surgery center’s response. He informed the AOJ that the records from the surgery center were not pertinent to his claim for a higher rating for his service-connected bilateral hearing loss. As such, because it appears that all pertinent evidence has been associated with the claims file, the Board will proceed to the merits of the appeal. Increased Ratings 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 evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7. Reasonable doubt will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. A veteran’s entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are appropriate when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). In the May 2012 rating decision on appeal, the agency of original jurisdiction (AOJ) granted service connection for bilateral hearing loss and assigned an initial noncompensable disability rating pursuant to 38 C.F.R. § 4.85, Diagnostic Code 6100. 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 puretone 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. § 4.8(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 puretone 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 puretone 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 puretone threshold at 1000, 2000, 3000, and 4000 Hertz is 55 decibels or more, or when the puretone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz. 38 C.F.R. § 4.86. Specifically, 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 is determined from either Table VI or Table VIA, whichever results in the higher numerical. 38 C.F.R. § 4.86(b). That numeral will then be elevated to the next higher Roman numeral, and then each ear will be evaluated separately. Id. In Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007), the Court held that relevant to VA audiological examinations, 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. Id. Pertinent evidence includes VA examination reports dated in May 2011 and January 2018, VA treatment records, and the Veteran’s lay statements. In connection with his claim for service connection, the Veteran underwent a May 2011 VA examination, which revealed the following puretone thresholds, in decibels:   1000 2000 3000 4000 RIGHT 10 25 45 50 LEFT 15 45 60 65 The puretone threshold averages were 33 in the right ear and 46 in the left ear. Speech recognition testing using the Maryland CNC Word List revealed speech recognition ability of 94 percent bilaterally. The Veteran was diagnosed with sensorineural hearing loss bilaterally. With regard to the functional impact of hearing loss, the Veteran reported difficulty hearing when background noise is present, as well as difficulty hearing in noisy environments. These audiometry test results equate to Level I in the right ear and Level I in the left ear using Table VI. 38 C.F.R. § 4.85. Applying the percentage ratings for hearing impairment found in Table VII, the May 2011 VA examination results do not warrant a compensable disability rating. 38 C.F.R. § 4.85. A May 2014 VA audiological assessment revealed the following puretone thresholds, in decibels:   1000 2000 3000 4000 RIGHT 20 30 50 65 LEFT 20 35 65 75 The puretone threshold averages were 41 in the right ear and 49 in the left ear. Speech recognition testing using the Maryland CNC Word List revealed speech recognition ability of 100 percent bilaterally. These audiometry test results equate to Level I in the right ear and Level I in the left ear using Table VI. 38 C.F.R. § 4.85. Applying the percentage ratings for hearing impairment found in Table VII, the May 2014 results do not warrant a compensable disability rating. 38 C.F.R. § 4.85. During his April 2017 hearing before the undersigned Veterans Law Judge, the Veteran reported trouble hearing when in a room with a lot of background noise, as well as difficulty hearing female voices. A November 2017 VA audiological assessment revealed the following puretone thresholds, in decibels:   1000 2000 3000 4000 RIGHT 30 45 60 70 LEFT 30 55 70 80 The puretone threshold averages were 51 in the right ear and 59 in the left ear. Speech recognition testing using the Maryland CNC Word List revealed speech recognition ability of 92 percent in the right ear, 88 percent in the left ear at 85 decibels, 76 percent in the left ear at 80 decibels. Using Table VI, these audiometry test results equate to Level I in the right ear; Level III in the left ear using the 88 percent; and Level IV using the 76 percent. 38 C.F.R. § 4.85. Applying the percentage ratings for hearing impairment found in Table VII, the November 2017 results warrant a noncompensable disability rating using either speech recognition result. 38 C.F.R. § 4.85. In January 2018, the Veteran underwent another VA audiological examination, which revealed the following puretone thresholds, in decibels:   1000 2000 3000 4000 RIGHT 30 50 60 70 LEFT 30 55 70 80 The puretone threshold averages were 53 in the right ear and 59 in the left ear. Speech recognition testing using the Maryland CNC Word List revealed speech recognition ability of 96 percent in the right ear, and 94 percent in the left ear. The Veteran was diagnosed with sensorineural hearing loss bilaterally. With regard to the functional impact of hearing loss, the Veteran reported interference with word understanding in any type of competing noise. The examiner noted that he had difficulty hearing spoken guidance, instructions, or comments from other workers when in noise. The examiner also noted that he would have difficulty when he could not read lips and facial expressions, like talking on a telephone. These audiometry test results equate to Level I in the right ear and Level II in the left ear using Table VI. 38 C.F.R. § 4.85. Applying the percentage ratings for hearing impairment found in Table VII, the January 2018 VA examination results warrant a 10 percent disability rating. 38 C.F.R. § 4.85. A May 2018 VA audiological assessment revealed the following puretone thresholds, in decibels:   1000 2000 3000 4000 RIGHT 35 50 55 75 LEFT 30 50 70 80 The puretone threshold averages were 54 in the right ear and 58 in the left ear. Unfortunately, speech recognition testing was not performed; as such, the May 2018 results cannot be utilized in rating the Veteran’s bilateral hearing loss. A January 2020 VA audiological assessment revealed the following puretone thresholds, in decibels:   1000 2000 3000 4000 RIGHT 50 60 65 65 LEFT 55 65 70 75 The puretone threshold averages were 60 in the right ear and 66 in the left ear. Speech recognition testing using the Maryland CNC Word List revealed speech recognition ability of 88 percent in the right ear, 76 percent in the left ear. Using Table VI, these audiometry test results equate to Level III in the right ear; and Level IV in the left ear. 38 C.F.R. § 4.85. Because the Veteran’s puretone thresholds in his left ear were at 55 decibels or more, Table VIa is also for application, as these results demonstrate an exceptional pattern of hearing impairment. See 38 C.F.R. § 4.86. When applying the thresholds to Table VIa, the Veteran’s test results equate to Level V in the left ear. Applying the Level III in the right ear and the Level V in the left ear to Table VII, the January 2020 results warrant a 10 percent disability rating, but no higher. 38 C.F.R. § 4.85. Based on the audiological examinations of record prior to January 15, 2020, the Board finds that the severity of the Veteran’s bilateral hearing loss disability was not to a level so as to warrant a higher disability rating under the rating criteria. Thus, a compensable disability rating prior to January 15, 2020, for bilateral hearing loss is not warranted. Effective January 15, 2020, however, the Board finds that a 10 percent disability rating is warranted based on the January 2020 VA audiological results. It must be emphasized that schedular disability ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designation assigned after audiometry results are obtained. Hence, the Board must predicate its determination on the basis of the results of the audiology studies of record. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). Here, the audiometry results show a level of hearing loss that is compatible with no more than a noncompensable rating prior to January 15, 2020; and no more than a 10 percent disability rating, effective January 15, 2020. The Board acknowledges the Veteran’s statements regarding the difficulty his hearing loss has caused in his daily life. The Board has carefully considered these statements, and in no way discounts the Veteran’s asserted hearing difficulties, to include when there is background noise, or when he is in noisy environments. However, the Veteran’s complaints, although understandably difficult, are contemplated by the rating schedule. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). In sum, the Board finds that a 10 percent disability rating, but no higher, is granted effective January 15, 2020. However, the claim for an initial compensable rating prior to January 15, 2020 must be denied. V. Chiappetta Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board James R. Springer, 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.