Citation Nr: 21001554 Decision Date: 01/08/21 Archive Date: 01/08/21 DOCKET NO. 17-36 722 DATE: January 8, 2021 ORDER A rating in excess of 10 percent for bilateral hearing loss prior to May 31, 2017, is denied. REMANDED A rating in excess of 20 percent for bilateral hearing loss since May 31, 2017. FINDINGS OF FACT 1. The Veteran had active service from February 1973 to January 1976 and July 1977 to October 1985. 2. Prior to May 31, 2017, bilateral hearing loss was manifested by Level IV hearing acuity in the right ear and Level IV in the left ear with speech recognition scores of 80 percent in the right ear and 80 percent in the left ear. CONCLUSION OF LAW The criteria for rating in excess of 10 percent for bilateral hearing loss prior to May 31, 2017, have not been met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 4.3, 4.7, 4.85, 4.86, Diagnostic Code (DC) 6100 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSION In October 2020, the Veteran and his former spouse testified before the undersigned Veterans Law Judge. A copy of the transcript has been associated with the claims file. Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Ratings for hearing loss disability 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, in decibels (dB) as measured by pure tone audiometric tests in frequencies 1000, 2000, 3000, and 4000 Hertz (Hz). 38 C.F.R. § 4.85, DC 6100. An examination for hearing impairment for VA purposes must include a controlled speech discrimination test (Maryland CNC). To evaluate the degree of disability from defective hearing, the rating schedule requires assignment of a Roman numeral designation, ranging from I to XI. Other than exceptional cases, VA arrives at the proper designation by mechanical application of Table VI, which determines the designation based on results of standard test parameters. Table VII is then applied to arrive at a rating based upon the respective Roman numeral designations for each ear. Exceptional patterns of hearing impairment allow for assignment of the Roman numeral designation using Table VI or an alternate table, Table VIA, whichever is more beneficial to the veteran. 38 C.F.R. § 4.86. This applies to two patterns of hearing loss, neither of which is applicable here. Turning to the medical evidence, the Veteran underwent audiology consultations in February 2015 and August 2015. At the February 2015 consultation, he reported a 5-week history of an earache and drainage. The average pure tone threshold was 80 in the right ear, and 61.25 in the left ear. Word recognition scores were 72 percent in the right ear and 80 percent in the left ear. At the August 2015 consultation, the Veteran reported a crust or wetness in each external ear canals every day. The audiologist noted that both ears were irritated in the external auditory canal with either scarring or a possible growth. Average pure tone threshold was 93.75 in the right ear, and 75 in the left ear. Word recognition scores were 44 percent in the right ear and 60 percent in the left ear. A May 2017 audiologist was asked to review the February 2015 and August 2015 audiological tests for accuracy as the Veteran was noted to have otitis externa during the examinations. The audiologist reflected that the examinations showed hearing loss in the frequencies above 1000 Hz and it was unlikely that a conductive hearing loss, such as otitis externa, would cause hearing loss at these frequencies. However, the examiner expressed concern about the results of the examinations due to acoustic neuroma or a lesion of the auditory nerve. As there was a question as to the accuracy of those examinations, the Board assigns them less probative weight. In a February 2016 VA examination, the Veteran reported that he had been treated twice since November 2015 for ear drainage and possible external otitis and eczema in his ears. He had been prescribed antibiotics and indicated that the infections and itching had resolved. Pure tone thresholds, in decibels, were reported as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 40 75 80 90 LEFT 25 45 70 70 70 The average pure tone threshold was 71 in the right ear, and 64 in the left ear. Speech audiometry revealed speech recognition ability of 80 percent in the right ear and 80 percent in the left ear. Under the guidelines set forth in 38 C.F.R. § 4.85, the audiometric results from the February 2016 VA audiology examination revealed Level IV hearing acuity in the right ear under Table VI and Level IV hearing acuity in the left ear when evaluating under Table VI. According to Table VII under DC 6100, a 10 percent rating is warranted for the level of hearing impairment demonstrated at the February 2016 VA audiology examination. The Board places high probative value on this examination. It is apparent that the Veteran was experiencing additional ear symptomatology in February 2015 and August 2015 that was impacting his ability to hear. By the time of the February 2016 VA examination, the additional symptoms of infection, draining, and itching had been successfully treated with antibiotics and ear cream. Therefore, the February 2016 VA examination results are the most reflective of his over-all level of hearing disability for the period prior to May 2017. Based on those result, the medical evidence does not support a higher rating. Further, 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. Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). In this regard, the examiner specifically noted the Veteran’s complaint that he had difficulty hearing in restaurants and difficulty understanding conversation on the telephone. In addition, the file contains his own written statements and sworn testimony regarding hearing loss. Therefore, the Board finds that no prejudice to the Veteran in that the functional effects of his hearing loss disability were adequately addressed by the examiner and are sufficient for the Board to consider whether referral for an extra-schedular rating is warranted under 38 C.F.R. § 3.321(b). In addition, the Veteran challenged the method of VA hearing tests and asserted that they did not account for hearing loss in everyday life. In this regard, the Board notes that the rating criteria for hearing loss were last revised, effective June 10, 1999. See 64 Fed. Reg. 25,200 (May 11, 1999). In forming these revisions, VA sought the assistance of the Veteran’s Health Administration (VHA) in developing criteria that contemplated situations in which a Veteran’s hearing loss was of such a type that speech discrimination tests may not reflect the severity of communicative functioning these Veterans experienced or that was otherwise an extreme handicap in the presence of any environmental noise, even with the use of hearing aids. VHA had found through clinical studies of Veterans with hearing loss that when certain patterns of impairment are present, a speech discrimination test conducted in a quiet room with amplification of the sounds did not always reflect the extent of impairment experienced in the ordinary environment. The decibel threshold requirements for application of Table VIA were based on the findings and recommendations of VHA. The intended effect of the revision was to fairly and accurately assess the hearing disabilities of veterans as reflected in a real life industrial setting. 59 Fed. Reg. 17,295 (April 12, 1994). Accordingly, the Board finds that functional impairment due to hearing loss that is compounded by background or environmental noise is a disability picture that is considered in the current schedular rating criteria. Therefore, the Veteran’s struggle to comprehend verbal conversations is a factor contemplated in the regulations and rating criteria as defined, and disability ratings are based on the overall severity and frequency of the disability, to include subjective complaints. Additionally, there is no indication that the average industrial impairment from the Veteran’s disability would be to such a degree as to warrant the assignment of a higher rating for this period. Moreover, the Veteran has not expressly raised the matter of entitlement to an extraschedular rating. His contentions have been limited to those discussed above, i.e., that his hearing loss is more severe than is reflected by the assigned rating. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board’s consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). REASONS FOR REMAND With respect to an increased rating for bilateral hearing loss since May 31, 2017, the most recent VA audiology examination was performed in May 2017. At the October 2020 Board hearing, the Veteran testified that his hearing loss was worse since the last examination. Accordingly, a remand to schedule an examination is in order. The matter is REMANDED for the following actions: 1. Identify and obtain any pertinent, outstanding VA and private medical treatment records that are not already of record in the claims file. 2. Schedule the Veteran for an examination in order to determine the current severity of bilateral hearing loss. All necessary tests should be performed and the results reported. L. HOWELL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Kokolas, 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.