Citation Nr: 21001206 Decision Date: 01/07/21 Archive Date: 01/07/21 DOCKET NO. 17-20 088 DATE: January 7, 2021 ORDER Entitlement to a compensable evaluation prior to February 14, 2020 and an evaluation in excess of 20 percent thereafter for bilateral hearing loss is denied. FINDINGS OF FACT 1. Prior to February 14, 2020, the Veteran’s bilateral hearing loss manifested by no more than Level I hearing loss bilaterally. 2. Since February 14, 2020, the Veteran’s bilateral hearing has been manifested by hearing acuity of no worse than Level IV in the right ear and no worse than Level VIII in the left ear. CONCLUSIONS OF LAW 1. Prior to February 14, 2020, the criteria for a compensable evaluation for bilateral hearing loss was not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.7, 4.85, 4.86, Diagnostic Code 6100. 2. Since February 14, 2020, the criteria for an evaluation in excess of 20 percent for bilateral hearing loss has not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.7, 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from February 1979 to February 1999. In January 2020, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is of record. The Board previously remanded this case for additional development in March 2020. The matter has now returned to the Board for appellate review. Entitlement to a compensable evaluation prior to February 14, 2020 and an evaluation in excess of 20 percent thereafter for bilateral hearing loss. Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is reviewed when making disability evaluations. See generally, 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Evidence to be considered in the appeal of an initial assignment of a disability rating was not limited to that reflecting the then current severity of the disorder. Fenderson v. West, 12 Vet. App. 119 (1999). In Fenderson, the Court also discussed the concept of the "staging" of ratings, finding that in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. Fenderson at 126-28; see also Hart v. Mansfield, 21 Vet. App. 505 (2007) (applying the concept of staged ratings to instances in which entitlement to compensation has previously been established). The Veteran's service-connected bilateral hearing loss has been evaluated with an initial noncompensable rating and a 20 percent evaluation beginning on February 14, 2020 under the provisions of Diagnostic Code 6100. See 38 C.F.R. § 4.85. In evaluating hearing loss under the schedular criteria, disability ratings are derived by a mechanical application of the ratings schedule to the numeric designations assigned after audiometric evaluations are rendered. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). The ratings schedule provides a table for ratings purposes (Table VI) to determine a Roman numeral designation (I through XI) for hearing impairment. Table VII is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment in both ears. 38 C.F.R. § 4.85. When the pure tone threshold at each of the four specified frequencies (1,000, 2,000, 3,000, and 4,000 Hertz) is 55 decibels or more, Table VI or Table VIa is to be used, whichever results in the higher numeral. 38 C.F.R. § 4.86 (a). Additionally, when the pure tone threshold is 30 decibels or less at 1,000 Hertz, and 70 decibels or more at 2,000 Hertz, Table VI or Table VIa is to be used, whichever results in the higher numeral. Thereafter, that numeral will be elevated to the next higher numeral. 38 C.F.R. § 4.86(b). At the outset, the Board notes that service connection was originally granted for left ear hearing loss with a noncompensable evaluation in November 1999. In November 2012, service connection was granted for right ear hearing loss, and a noncompensable evaluation was assigned for bilateral hearing loss at that time. The Veteran filed a claim for an increased rating for bilateral hearing loss in October 2015. Turning to the record, the Veteran was afforded a VA examination in December 2015 to determine the severity of his bilateral hearing loss. At that time, pure tone thresholds, in decibels, were as follows:   Frequency 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz Right 35 40 35 45 40 Left 25 30 60 65 65 Speech audiometry revealed speech recognition ability of 100 percent in the right ear and of 94 in the left ear. The average decibel loss in the right ear was 40 and the average decibel loss in the left ear was 55. Entering the average pure tone thresholds and speech recognition abilities above into Table VI reveals the highest numeric designation of hearing impairment was I for both the right and left ear. See 38 C.F.R. § 4.86(a). Entering the category designations for each ear into Table VII results in a noncompensable evaluation under Diagnostic Code 6100. In February 2016, the Veteran submitted a new claim for an increased rating and a Statement in Support of Claim asserting that the December 2015 audiological examination was unfair and inaccurate. In a March 2016 rating decision, the Agency of Original Jurisdiction (AO)J confirmed and continued the previous noncompensable rating for bilateral hearing loss. The Veteran submitted an April 2016 Notice of Disagreement (NOD) asserting that he suffers from severe hearing loss that makes conversation difficult and affects his work in customer service. The Veteran was afforded a new VA examination in March 2017 to determine the severity of his bilateral hearing loss. At that time, pure tone thresholds, in decibels, were as follows: Frequency 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz Right 35 40 40 50 40 Left 25 35 65 65 60 Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 94 in the left ear. The average decibel loss in the right ear was 43 and the average decibel loss in the left ear was 56. Entering the average pure tone thresholds and speech recognition abilities above into Table VI reveals the highest numeric designation of hearing impairment was I for both the right and left ear. See 38 C.F.R. § 4.86(a). Entering the category designations for each ear into Table VII results in a noncompensable evaluation under Diagnostic Code 6100. In January 2019, the Veteran filed another claim for an increased rating for his bilateral hearing loss. He was then afforded a new VA examination in January 2019 to determine the severity of his bilateral hearing loss. At that time, pure tone thresholds, in decibels, were as follows: Frequency 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz Right 30 40 50 50 50 Left 30 40 60 60 60 Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 84 in the left ear. The average decibel loss in the right ear was 48 and the average decibel loss in the left ear was 55. Entering the average pure tone thresholds and speech recognition abilities above into Table VI reveals the highest numeric designation of hearing impairment was I for the right ear and II for the left ear. See 38 C.F.R. § 4.86(a). Entering the category designations for each ear into Table VII results in a noncompensable evaluation under Diagnostic Code 6100. During the January 2020 Board hearing, the Veteran stated that his hearing acuity worsened since the January 2019 VA examination. He stated that his hearing aids were not providing much relief and he has difficulty distinguishing syllables especially when using the telephone. He also testified that his hearing loss impacted his ability to function at work, to include being transferred from his job duty as a Dispatcher at the Police Department to Human Resources. The Veteran subsequently submitted a private audiology examination dated February 14, 2020. However, the examination did not indicate whether the Maryland CNC word list was used for speech recognition testing. Therefore, the examination, is not fully adequate for rating purposes. However, the audiological results indicated a potential increase in his disability since his last VA examination. Therefore, in its March 2020 decision, the Board remanded the issue for further development to include a new VA examination to ascertain the current severity of the Veteran’s bilateral hearing loss. The Veteran underwent a VA audiological examination in July 2020. At that time, pure tone thresholds, in decibels, were as follows: Frequency 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz Right 45 45 45 55 45 Left 30 45 75 75 75 Speech audiometry revealed speech recognition ability of 70 percent in the right ear and of 48 in the left ear. The average decibel loss in the right ear was 48 and the average decibel loss in the left ear was 68. Entering the average pure tone thresholds and speech recognition abilities above into Table VI reveals the highest numeric designation of hearing impairment is IV for the right ear and VIII for the left ear. See 38 C.F.R. § 4.86(a). Entering the category designations for each ear into Table VII results in a 20 percent evaluation under Diagnostic Code 6100. In an August 2020 rating decision, the AOJ increased the evaluation for bilateral hearing loss to 20 percent effective February 14, 2020, the date of the private examination suggesting a worsening in hearing acuity. The Board acknowledges the Veteran's contentions that his service-connected bilateral hearing loss warrants higher evaluations. However, in determining the actual degree of disability, an objective examination is more probative of the degree of the Veteran's impairment. Furthermore, the opinions and observations of the Veteran alone cannot meet the burden imposed by the rating criteria under 38 C.F.R. § 4.85 with respect to determining the severity of his service-connected hearing loss. See Moray v. Brown, 2 Vet. App. 211, 214 (1993); see also Davidson v. Shinseki, 581 F.3d 1313 (2009). The Board finds the December 2015, March 2017, January 2019 and July 2020 VA examinations to be highly probative as the examiners certified that the test results were valid for rating purposes and the use of speech discrimination score was appropriate. The results were also consistent with the Veteran's description of his worsening hearing loss during the applicable periods. Therefore, the Board finds that the Veteran's bilateral hearing loss is most accurately depicted by a noncompensable evaluation prior to February 14, 2020 and a 20 percent evaluation thereafter. There is no other audiological evidence of record to support higher evaluations during any time period on appeal. Likewise, the Board finds that February 14, 2020 is the is the earliest date as of which it is factually ascertainable that an increase in disability has occurred. There is no evidence of record to support a compensable rating for the Veteran's service-connected bilateral hearing loss prior to that date. Accordingly, a compensable rating is not warranted for the period prior to February 14, 2020, and a rating in excess of 20 percent is not warranted for the period   thereafter. See 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. The preponderance of the evidence is against his claim for increased evaluations. Consequently, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (U.S. 1990). Michael D. Lyon Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Sneeringer, 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.