Citation Nr: 21001970 Decision Date: 01/12/21 Archive Date: 01/12/21 DOCKET NO. 14-31 645 DATE: January 12, 2021 ORDER Entitlement to increases in the staged (0 percent from May 1, 2013 to September 30, 2019, and 10 percent from September 30, 2019) ratings assigned for bilateral hearing loss is denied. FINDINGS OF FACT 1. From May 1, 2013 to September 30, 2019, the Veteran’s bilateral hearing loss is not shown to have been manifested by auditory acuity worse than level VIII in the right ear and level I in the left ear. 2. From September 30, 2019, the Veteran’s bilateral hearing loss has been manifested by auditory acuity no worse than level X in the right ear and level II in the left ear. CONCLUSION OF LAW A compensable rating for bilateral hearing from May 1, 2013 to September 30, 2019, and a rating in excess of 10 percent from September 30, 2019 are not warranted. 38 U.S.C.§§ 1155, 5107(b); 38 C.F.R. §§ 3.321, 4.1, 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant is a Veteran who served on active duty from June 1986 to October 1999 (and had more than 7 years of prior active service). This matter is before the Board of Veterans’ Appeals (Board) on appeal from a February 2013 rating decision that reduced the rating for his bilateral hearing loss from 10 to 0 percent, effective May 1, 2013. In June 2015, a videoconference hearing was held before the undersigned; a transcript is in the Veteran’s record. At the hearing, the Veteran raised the matter of a compensable rating since May 1, 2013. In February 2018, this matter was remanded for additional development. An interim (October 2019) rating decision increased the rating for the hearing loss from 0 to 10 percent, effective September 30, 2019. The issue is characterized to reflect that staged ratings are assigned, and that both “stages” are on appeal. [A February 2018 Board decision denied an appeal challenging the propriety of the reduction for bilateral hearing loss from 10 to 0 percent, effective May 1, 2013. The Veteran appealed the Board decision to the U.S. Court of Appeals for Veterans Claims (CAVC), resulting in a March 2019 Joint Motion for Partial Remand (JMPR) by the parties. A March 2019 CAVC Order vacated the Board’s denial of entitlement to restoration of a 10 percent rating for the hearing loss, and remanded the matter for compliance with the JMPR instructions. In August 2019, the Board again denied the appeal challenging the propriety of the reduction of the rating for bilateral hearing loss from 10 percent to 0 percent, effective May 1, 2013. The Veteran did not appeal that decision to CAVC; accordingly, that matter is no longer before the Board, and what remains for consideration is entitlement to increases in the staged ratings assigned from May 1, 2013.] Entitlement to increases in the staged ratings assigned for bilateral hearing loss is denied. Legal Criteria Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity caused by the given disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where entitlement to compensation has already been established and increase in disability is at issue (as raised at the June 2015 Board hearing), the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). In a claim for an increased rating, “staged” ratings may be warranted where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). When a question arises as to which of two ratings applies under a particular code, the higher rating 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, including regarding degree of disability, is resolved in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. § § 3.102, 4.3. Disability ratings for hearing loss are derived by 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). Hearing loss disability evaluations range from 0 to 100 percent based on organic impairment of hearing acuity, as measured by controlled speech discrimination tests in conjunction with the average hearing threshold, as measured by puretone audiometric tests in the frequencies 1000, 2000, 3000 and 4000 cycles per second. The rating schedule establishes 11 auditory acuity levels designated from Level I for essentially normal hearing acuity, through Level XI for profound deafness. VA audiometric examinations are conducted using a controlled speech discrimination test together with the results of a puretone audiometric test. The horizontal lines in Table VI (in 38 C.F.R. § 4.85) 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 audiometric test. The numeric designation of impaired hearing (Levels I through XI) is determined for each ear by intersecting the horizontal row appropriate for the percentage of discrimination and the vertical column appropriate to the puretone decibel loss. Table VIA (in 38 C.F.R. § 4.85) is used when speech discrimination tests are inappropriate due to language difficulties, inconsistent speech discrimination scores, etc., or where there is an exceptional pattern of hearing loss (as defined in 38 C.F.R. § 4.86). One such pattern occurs when puretone thresholds at each of the four specified frequencies is 55 decibels or more. The percentage evaluation is found from Table VII (in 38 C.F.R. § 4.85) by intersecting the horizontal row appropriate for the numeric designation for the ear having the better hearing acuity and the appropriate vertical column to the numeric designation level for the ear having the poorer hearing acuity. See 38 C.F.R. § 4.85(e). Factual Background On November 2012 VA audiological examination, audiometry revealed that puretone thresholds, in decibels, were: HERTZ 1000 2000 3000 4000 RIGHT 85 75 80 80 LEFT 25 40 40 30 The average puretone thresholds were 80 decibels for the right ear and 34 for the left. Speech discrimination (using Maryland CNC word list) was 96 percent in each ear. Under 38 C.F.R. § 4.85(c), Table VI, right ear hearing loss acuity was Level II and left ear hearing loss acuity was Level I. As the right ear puretone thresholds were 55 decibels or more at each of the four specified frequencies (showing an exceptional pattern of hearing impairment), under Table VIA the right ear hearing impairment was Level VII. Under Table VII, the combination of Level I hearing in the left (better) ear with Level VII in the right (poorer) ear warrants a 0 percent rating. The examiner opined that the effect of the hearing loss on the Veteran’s usual occupation was “significant effects” due to “hearing difficulty.” She noted there was no effect on his usual daily activities. A January 2013 VA ENT treatment record notes a “repeat audiogram” showed “No change in hearing.” The Veteran reported that he used to have a right ear hearing aid, but that it “became ineffective.” There were no otorrhea, otalgia, or balance issues. Audiogram showed “normal sloping to mild” sensorineural hearing loss in the left ear and moderate-severe conductive hearing loss on the right with “20-40 dB A[V]G.” [An audiogram chart/table was not associated/recorded in the treatment record.] Surgery and amplification were discussed; the Veteran “desires neither.” The plan was to recheck in a year. With his April 2013 Notice of Disagreement, the Veteran included a report of a March 2013 service department audiology evaluation which notes that speech audiometry testing (using the Maryland CNC) found 100 percent speech discrimination in each ear. The audiogram is incomplete: right ear masked scores are noted at all frequencies; however, right ear unmasked scores are only noted at 1000 Hz, and above. Therefore, the report is incomplete and is inadequate for rating purposes. A March 2014 VA audiology record notes both ears were clear of wax; both tympanic membranes were visible and intact. “Basic comprehensive hearing test indicates borderline normal hearing [left] and moderaate (sic) severe mixed HL [right].” “Thresholds unchanged vs. 1/2013 hearing test.” On August 2014 VA audiological examination, audiometry revealed that puretone thresholds were: HERTZ 1000 2000 3000 4000 RIGHT 85 75 95 95 LEFT 25 30 40 30 The average puretone thresholds were 88 decibels for the right ear and 31 for the left. Speech discrimination was 88 percent in the right ear and 96 percent in the left ear. Under 38 C.F.R. § 4.85(c), Table VI, right ear hearing loss acuity was Level IV and left ear hearing loss acuity was Level I. As the right ear puretone thresholds showed an exceptional pattern of hearing impairment, under Table VIA the right ear hearing impairment was Level VIII. Under Table VII, the combination of Level I hearing in the left (better) ear with Level VIII in the right (poorer) ear warrants a 0 percent rating. The Veteran reported that the effect of his hearing loss on the ordinary conditions of daily life is that his hearing is bad. In his September 2014 VA Form 9 (formal appeal) on the matter of propriety of the reduction, the Veteran requested a 10% rating for his hearing loss. A June 2, 2015 VA clinical record notes that the Veteran was upset that his hearing loss rating was reduced. He believed that there was “no change in hearing.” The summary note states that left ear was “normal to mild sensorineural hearing loss. Right ear severe to profound mixed hearing loss. Speech recognition scores 100% left and 84% right. Audiogram stable since 2013.” The clinician noted possible otosclerosis in the right ear; she stated that the Veteran would benefit from amplification, and probably surgery on the right, but did not feel that he needed either at this time. An audiogram showed left ear puretone thresholds were: HERTZ 1000 2000 3000 4000 LEFT 25 35 40 40 The average puretone thresholds were 35 decibels for the left ear. Speech discrimination was 84 percent in the right ear and 100 percent in the left ear; it is not clear whether the scores were derived using the Maryland CNC word list. The audiogram is additionally incomplete because right ear unmasked scores are not noted. Therefore, the report is inadequate for rating purposes. At the June 2015 Board videoconference hearing regarding the propriety of the reduction, the Veteran argued for a compensable rating. [The undersigned acknowledged his contention and noted that the Board could consider the matter of entitlement to a compensable rating (in addition to the now final matter of the reduction from 10 to 0 percent effective May 1, 2013).] He testified that his hearing loss manifests in difficulty hearing orders at the bar that he owns. He testified that he believes his hearing loss has worsened since 2012. In February 2018, the Board remanded the matter of entitlement to a compensable rating from May 1, 2013 for additional development, including to obtain any outstanding records and for an examination to ascertain the current severity of his bilateral hearing loss. [As explained above, the February 2018 Board decision also denied the appeal challenging the propriety of the reduction for bilateral hearing loss from 10 to 0 percent, effective May 1, 2013. Following an appeal to the CAVC and a March 2019 JMPR, the Board again, in August 2019, denied the appeal challenging the propriety of the reduction, and that decision is final.] A September 20, 2018 treatment record notes the Veteran’s complaint of difficulty hearing. He related that in a quiet environment “he understands if he can look at [the] speaker’s face.” He uses his cellphone on high volume and his wife complains that he sets TV volume very loud. The audiologist noted the right ear canal was ¾ occluded with cerumen and the left ear canal was fully occluded. The ears were cleaned, and the cerumen was removed. On audiometry several days later, left ear puretone thresholds were: HERTZ 1000 2000 3000 4000 LEFT 35 45 55 45 The average puretone thresholds were 45 decibels for the left ear. Speech discrimination was 64 percent in the right ear and 96 percent in the left ear; it is not clear whether such scores were derived using the Maryland CNC word list. The audiometry is further incomplete as right ear unmasked scores beyond 250 Hz are not noted. The audiologist noted that the “results are inconsistent with air conduction thresholds in the right ear,” and that, “Responses were consistent re[garding] level responses but unreliable across test and acoustic principles.” Therefore, the report is incomplete and inadequate for rating purposes. On September 30, 2019 VA audiological examination, the Veteran reported that he has a hard time hearing what people are saying, and sometimes does not hear them at all. Audiometry revealed that puretone thresholds were: HERTZ 1000 2000 3000 4000 RIGHT 105 105 105 100 LEFT 45 65 60 70 The average puretone thresholds were 104 decibels for the right ear and 60 for the left. Speech discrimination was 66 percent in the right ear and 94 percent in the left ear. Under 38 C.F.R. § 4.85(c), Table VI, right ear hearing loss acuity was Level VIII and left ear hearing loss acuity was Level II. As the right ear puretone threshold showed an exceptional pattern of hearing impairment, under Table VIA the right ear hearing impairment was Level X. Under Table VII the combination of Level II hearing in the left (better) ear with Level X in the right (poorer) ear warrants a 10 percent rating. The examiner opined that the effect of the Veteran’s hearing loss on his functioning “is consistent” with the level of hearing impairment shown by audiometry “and probably depends on which side of the Veteran is closer to the speaker.” [The Veteran reported that he still works as a bar owner (for more than two decades).] A November 19, 2019 Report of General Information notes that the AOJ planned to contacted the clinic that conducted the March 2013 and September 2018 audiograms to request that the audiogram graphs be converted into a table, and to verify which kind of speech recognition test was used. A November 22, 2019 Report of General Information notes that an employee at that clinic stated they were unable to convert the tests due to HIPAA, and that there was no other way to convert the data. The clinic employee did not indicate which kind of speech recognition test was used. [The Board acknowledges that VA must not reject a private audiological evaluation for failure to apply the Maryland CNC word test without making a diligent effort to determine whether it was applied. Savage v. Shinseki, 24 Vet. App. 259 (2011). However, remand to further attempt to ascertain such information is not necessary as the March 2013 and September 2018 non-VA audiograms are incomplete (missing significant portions of right ear unmasked scores) so evidence to the contrary is ;lacking. Furthermore, as outlined above, the September 2018 audiologist explained that the results of that test were unreliable. Accordingly, the reports remain inadequate for rating purposes, even if the Maryland CNC word list was used.] Analysis May 1, 2013 to September 30, 2019 Based on the foregoing, the Board finds that a compensable rating for bilateral hearing loss is not warranted prior to September 30, 2019. No audiometry (adequate for rating purposes) prior to September 30, 2019 found that the Veteran’s bilateral hearing loss disability met the schedular criteria for the next higher (10 percent) rating. The Board notes the Veteran’s lay accounts describing difficulty hearing and understanding conversation; he is competent to report that he has difficulty hearing. However, he is not competent to by his own observation establish the Level of hearing impairment present. That is a medical determination made based on findings on regulation-mandated diagnostic studies. See Moray v. Brown, 2 Vet. App. 211, 214 (1993). The rating for hearing impairment is derived by the mechanical application of the Rating Schedule to the numeric designations assigned based on objective audiometric test results. The Board has considered the Veteran’s June 2015 Board hearing testimony of worsening since 2012. However, on examination just days prior, he reported that there was “no change in hearing,” and the clinician who conducted audiometric testing wrote, “Audiogram stable since 2013.” The record does not contain a report of audiometric studies that would warrant a compensable rating prior to September 30, 2019. Symptoms/impairment not encompassed by the schedular criteria are not shown (or specifically alleged); the difficulty hearing, particularly with background noise, such as in a bar setting, are not inconsistent with the rating assigned. A compensable rating prior to September 30, 2019 is not warranted. From September 30, 2019 No audiometry from September 30, 2019 shows that the Veteran’s bilateral hearing loss disability met the schedular criteria for the next higher (20 percent) rating. The Board acknowledges his reports of difficulty understanding people and missing portions of conversations. However, as explained above, his reports are not competent to establish the Level of hearing impairment present; that is a medical determination made based on findings on official audiometry. See Moray v. Brown, supra. Symptoms/impairment not encompassed by the schedular criteria are not shown (or specifically alleged) at any time during the period; the difficulty hearing conversation described is a manifestation encompassed by the rating assigned. The record does not show, nor does the Veteran contend, that he is unemployable due to his service-connected bilateral hearing loss; notably, he still works. Consequently, the matter of entitlement to a TDIU rating is not raised by the record in the context of the instant claim for increase. The preponderance of the evidence is against this claim; the appeal in the matter must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Dupont, 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.