Citation Nr: 21001051 Decision Date: 01/06/21 Archive Date: 01/06/21 DOCKET NO. 15-18 008 DATE: January 6, 2021 ORDER Entitlement to an increased initial rating for bilateral hearing loss, rated as noncompensable prior to March 30, 2015, is denied. Entitlement to an increased initial rating for bilateral hearing loss, rated as 30 percent from March 30, 2015 to September 10, 2019, is denied. Entitlement to an increased initial rating for bilateral hearing loss, rated as 70 percent, but no higher, from September 10, 2019 to October 7, 2019, is granted. Entitlement to an increased initial rating for bilateral hearing loss, rated as 70 percent since October 7, 2019, is denied. FINDINGS OF FACT 1. Prior to March 30, 2015, the preponderance of evidence does not show the Veteran’s bilateral hearing loss manifested to a compensable level. 2. From March 30, 2015 to September 10, 2019, the preponderance of evidence shows the Veteran’s hearing loss was manifested by hearing acuity of no worse than level VII in the right ear and no worse than level V in the left ear. 3. From September 10, 2019 to October 7, 2019, evidence of record showed the Veteran’s hearing loss manifested as level XI in the right ear and level VIII in the left ear. 4. Since October 7, 2019, the Veteran’s hearing loss was manifested by hearing acuity of no worse than level XI in the right ear and no worse than level VIII in the left ear. CONCLUSIONS OF LAW 1. The criteria for entitlement to an increased initial rating for bilateral hearing loss, rated as noncompensable prior to March 30, 2015, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.7, 4.85, Diagnostic Code (DC) 6100. 2. The criteria for entitlement to an increased initial rating for bilateral hearing loss, rated as 30 percent from March 30, 2015 to September 10, 2019, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.7, 4.85, DC 6100. 3. The criteria for entitlement to an increased initial 70 percent rating, but no higher, for bilateral hearing loss, from September 10, 2019 to October 7, 2019, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.7, 4.85, DC 6100. 4. The criteria for entitlement to an increased initial rating for bilateral hearing loss, rated as 70 percent since October 7, 2019, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.7, 4.85, DC 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from November 1964 to January 1965. The issues come before the Board of Veterans’ Appeals (Board) on appeal from a September 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a Board hearing before the undersigned Veterans Law Judge in August 2018. A transcript has been associated with the claims file. In February 2019, the Board remanded to provide a VA examination to determine the current severity of the Veteran’s bilateral hearing loss. In a June 2020 rating decision, the RO increased the Veteran’s initial evaluation to 70 percent disabling from October 7, 2019. The Board again remanded in August 2020 to obtain outstanding medical records. In an October 2020 rating decision, the RO granted an increased initial rating of 50 percent disabling, effective from September 10, 2019 to October 7, 2019. Increased Rating VA has adopted a Schedule for Rating Disabilities to evaluate service-connected disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 3.321; v. generally, 38 C.F.R. § Part IV. The Board determines the extent to which a veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 C.F.R. § 4.10. The degrees of disabilities are based on the average impairment of earning capacity and individual disabilities are assigned diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various percentage ratings for each disability and the criteria for specific ratings. Where there is a question of which of two ratings should 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. Additionally, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In a claim for a greater original rating after an initial award of service connection, all evidence submitted in support of the veteran’s claim is to be considered. See Fenderson v. West, 12 Vet. App. 119 (1999); 38 C.F.R. § 4.2. However, consideration must be given as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. See Fenderson v. West, 12 Vet. App. 119 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2007). 1. Entitlement to an increased initial rating for bilateral hearing loss, rated as noncompensable prior to March 30, 2015 The Veteran contends he is entitled to a compensable rating for his service-connected bilateral hearing loss prior to March 30, 2015. Under DC 6100, 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). To evaluate the degree of disability from service-connected defective hearing, the rating schedule establishes 11 auditory hearing acuity levels designated from level I, for essentially nonimpaired hearing acuity, through level XI, for profound deafness. 38 C.F.R. § 4.85, Tables VI and VII, Diagnostic Code 6100. For VA purposes, an examination for hearing impairment must be conducted by a state-licensed audiologist and must include the Maryland CNC speech recognition test and a puretone audiometry test. 38 C.F.R. § 4.85(a). Further, additional considerations apply when exceptional patterns of hearing impairment are demonstrated. Exceptional patterns of hearing impairment occur when the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more. In that situation, 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. 38 C.F.R. § 4.86(a). Also, when the average puretone 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 considered separately. 38 C.F.R. § 4.86(b). The Board notes that the examinations from March 2015 and October 2019 show an exceptional pattern of hearing loss in one or both ears. Thus, Table VI and Table VIa can be applied. 38 C.F.R. § 4.86. In addition to dictating objective test results, a VA audiologist must describe the functional effects caused by a hearing disability in his or her final report. Martinak v. Nicholson, 21 Vet. App. 447 (2007). If an audiologist’s description of the functional effects of a veteran’s hearing disability was somehow defective, the Veteran bears the burden of demonstrating any prejudice caused by a deficiency in the examination. Id. The Veteran submitted a private audiological examination from May 2009. The private audiologist interpreted the Veteran’s audiogram reflected mild-severe bilateral hearing loss. While the audiogram provided puretone thresholds, the examination did not record speech recognition scores using Maryland CNC. The record contains a VA audiological evaluation from May 2014. While the audiogram provided puretone thresholds, the examination used CDW-22 for speech recognition scores. The Veteran submitted a private audiological examination from January 2015. The private audiologist interpreted the Veteran’s audiogram reflected mild-severe bilateral hearing loss. While the audiogram provided puretone thresholds, the examination did not record speech recognition scores using Maryland CNC. Although the audiological examinations for the period under consideration show evidence of hearing loss, the examinations did not test the Veteran’s hearing using the Maryland CNC test. Therefore, none of the VA and private examinations are valid for rating purposes. The medical evidence of record does not show any other testing that provided puretone threshold averages and speech recognition percentages necessary for a compensable disability rating prior to March 30, 2015. Thus, the Veteran’s bilateral hearing loss, as reported prior to March 30, 2015 is appropriately evaluated as a noncompensable disability rating under Diagnostic Code 6100. 38 C.F.R. § 4.85. The Board sympathizes with the Veteran’s reported functional impact of encountering difficulty hearing and understanding people. However, the assignment of disability ratings for hearing impairment is derived from a mechanical formula based on levels of puretone threshold average and speech discrimination. Thus, the Board concludes that the preponderance of evidence is against the claim and the benefit of the doubt doctrine does not apply. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). Accordingly, a compensable rating for bilateral hearing loss prior to March 30, 2015 is not warranted. 2. Entitlement to an increased initial rating for bilateral hearing loss, rated as 30 percent from March 30, 2015 to September 10, 2019 In March 2015, the Veteran received a VA hearing loss examination. On the authorized audiological evaluation, puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 50 60 60 75 95 LEFT 45 50 60 70 75 Speech audiometry revealed speech recognition ability of 64 percent in the right ear and of 74 percent in the left ear. The Veteran reported great difficulties understanding conversational speech in noise or at distances without visual cues. A private hearing examination from February 2016 is included in the record. While the audiogram provided puretone thresholds, the examination did not record speech recognition scores using Maryland CNC. Applying the March 2015 examination results to Table VI, a level VII hearing is provided for the right ear and a level V for the left ear, the combination of which in Table VII returns a 30 percent disability rating. As the Veteran’s examination showed an exceptional pattern in the right ear, Table VIa may be applied. However, in applying Table VIa, level VI is provided for the right ear. Therefore, the Board applies the higher numeral provided in Table VI, giving the Veteran a 30 percent disability rating. In August 2018, the Veteran testified before the Board that his hearing was deteriorating. The Veteran stated that he was diagnosed with an acoustic neuroma in his left eardrum. The Veteran testified that he began wearing hearing aids in 2015. He noted that even with the hearing aids he has difficulty hearing people. The Veteran testified that his private doctor told him the Veteran would definitely lose the hearing in his left ear. The medical evidence of record does not show any other testing that provided puretone threshold averages and speech recognition percentages for VA rating purposes from March 30, 2015 to September 10, 2019. Accordingly, the Veteran’s bilateral hearing loss, as reported from March 30, 2015 to September 10, 2019, is appropriately evaluated as 30 percent under Diagnostic Code 6100. 38 C.F.R. § 4.85. The Board sympathizes with the Veteran’s reported functional impact of hearing loss, and recognizes the Veteran’s impairment required hearing aids since 2015. However, the assignment of disability ratings for hearing impairment is derived from a mechanical formula based on levels of puretone threshold average and speech discrimination. Thus, the Board concludes that the preponderance of evidence is against an initial rating in excess of 30 percent, and the benefit of the doubt doctrine does not apply. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). 3. Entitlement to an increased initial rating for bilateral hearing loss, rated as 70 percent, but no higher, from September 10, 2019 to October 7, 2019, is granted. 4. Entitlement to an increased initial rating for bilateral hearing loss, rated as 70 percent, but no higher, since October 7, 2019 The record contains a VA audiological evaluation from September 2019. The reported puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 70 80 90 100 105+ LEFT 60 80 90 90 95 Speech audiometry, using the CDW-22 material, revealed speech recognition ability of 24 percent in the right ear and of 60 in the left ear. Pursuant to the Board remand, in October 2019, the Veteran underwent a VA hearing loss examination. The Veteran’s audiological evaluation, with puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 70 80 90 100 105+ LEFT 60 80 90 90 95 Speech audiometry revealed speech recognition ability of 26 percent in the right ear and of 52 percent in the left ear. Again, the Veteran described the functional impact of his hearing loss as great difficulties understanding conversational speech in noise at distances and without visual cues. Applying the October 2019 examination results to Table VI, a level XI hearing is provided for the right ear and a level VIII for the left ear, the combination of which in Table VII returns a 70 percent disability rating. As the Veteran’s examination showed an exceptional hearing pattern in both ears, Table VIa may apply. However, Table VIa provides level IX for the right ear and level VIII for the left. Therefore, the Board applies the higher numeral giving the Veteran a 70 percent. Here, the evidence of record demonstrates the Veteran’s puretone threshold averages were the same in September and October 2019. However, the disability rating hinges on the use of the Maryland CNC speech recognition test less than one month after the previous hearing examination. Resolving reasonable doubt in favor of the Veteran, the Board finds the Veteran’s hearing loss recorded in October 2019 as 70 percent disabling, accurately depicts the Veteran’s impairment since September 10, 2019. An initial evaluation in excess of 70 percent is not warranted since September 10, 2019, as no other medical evidence shows the Veteran’s hearing loss worsened beyond the impairment recorded in the Veteran’s VA hearing examinations during this time. The Board sympathizes with the Veteran’s reported functional impact of difficulties understanding conversational speech. However, the medical evidence of record does not show any other testing that provided puretone threshold averages and speech recognition percentages justifying an evaluation in excess of 70 percent. In light of the above, the evidence of record supports an initial rating of 70 percent, but no higher, since September 10, 2019. In reaching this conclusion, the Board considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against a rating in excess of that currently assigned, the doctrine does not apply. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A.V. Bona, 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.