Citation Nr: 21002051 Decision Date: 01/12/21 Archive Date: 01/12/21 DOCKET NO. 16-53 130 DATE: January 12, 2021 ORDER Entitlement to an initial rating in excess of 20 percent prior to December 20, 2019, and in excess of 80 percent as of December 20. 2019, for bilateral hearing loss is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that bilateral hearing loss was worse than Level XI hearing acuity in the right ear and Level III in the left ear using Table VI prior to December 20, 2019. 2. The preponderance of the evidence is against finding that bilateral hearing loss is worse than Level XI hearing acuity in the right ear and Level IX in the left ear using Table VI as of December 20, 2019. CONCLUSION OF LAW The criteria for entitlement to an initial rating in excess of 20 percent prior to December 20, 2019, and in excess of 80 percent as of December 20, 2019, for bilateral hearing loss are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.383, 3.385, 4.85, 4.86. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1991 to June 1995. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. Entitlement to an initial rating in excess of 20 percent for bilateral hearing loss prior to December 20, 2019, and in excess of 80 percent as of December 20, 2019 The Veteran contends that he is entitled to increased ratings for bilateral hearing loss because the claimed disability is worse than contemplated by the currently assigned ratings. Under the applicable criteria, ratings for hearing loss are determined in accordance with the findings obtained on audiometric evaluations. Ratings for hearing impairment range from 0 percent to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests, together with the average hearing threshold level as measured by pure tone audiometry tests in the frequencies 1000, 2000, 3000, and 4000 Hertz. To rate the degree of disability from hearing impairment, the rating schedule establishes eleven auditory acuity levels designated from Level I for essentially normal acuity through Level XI for profound deafness. 38 C.F.R. § 4.85, Diagnostic Code 6100 (2017). Hearing tests will be conducted without hearing aids, and the results of above-described testing are charted on Table VI and Table VII. 38 C.F.R. § 4.85. An adequate evaluation of impairment of hearing acuity rests upon the results of controlled speech discrimination tests, together with tests of the average hearing threshold levels at certain specified frequencies. 38 C.F.R. § 4.85, Diagnostic Code 6100. The assignment of disability ratings for hearing impairment are to be derived by the mechanical application of the Ratings Schedule to the numeric designations assigned after audiometry evaluations are conducted. Lendenmann v. Principi, 3 Vet. App. 345 (1992). Numeric designations of Levels I through XI are assigned by application of Table VI, in which the percentage of discrimination is intersected with the pure tone decibel loss. 38 C.F.R. § 4.85, Table VI. The results are then applied to Table VII, for a percentage rating. Pure tone threshold average, as used in Tables VI and VIA, is the sum of the pure tone thresholds at 1000, 2000, 3000, and 4000 Hertz, divided by four. That average is used in all cases, including those in 38 C.F.R. § 4.86, to determine the Roman numeral designation for hearing impairment from Table VI or Table VIA. 38 C.F.R. § 4.85(d). Where pure tone thresholds are 55 decibels or more at each of the four specified frequencies of 1000, 2000, 3000, and 4000 Hertz, either Table VI or Table VIA is applied, and whichever results in the higher numeral shall be applied. 38 C.F.R. § 4.86 (a). When the pure tone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz, the higher numeral of Table VI or Table VIA is also applied. 38 C.F.R. § 4.86 (b). In addition to dictating objective test results, a VA audiologist should fully describe the functional effects caused by a hearing disability in the final report because of the potential application of 38 C.F.R. § 3.321(b) in considering whether referral for consideration of the assignment of an extraschedular rating is warranted. Unlike the rating schedule for hearing loss, 38 C.F.R. § 3.321(b) does not rely exclusively on objective test results to determine whether a referral for an extra-schedular rating is warranted. Martinak v. Nicholson, 21 Vet. App. 447 (2007). At an October 2013 private audiology examination, the Veteran exhibited audiometric findings of: HERTZ AVG 1000 2000 3000 4000 RIGHT 86.66 85 85 -- 90 LEFT 60 45 65 -- 70 At an April 2014 private audiology examination, the Veteran exhibited audiometric findings of: HERTZ AVG 1000 2000 3000 4000 RIGHT 86.66 90 85 -- 85 LEFT 48.33 35 35 -- 75 A review of this record shows the October 2013 and April 2014 audiograms are not adequate for VA rating purposes as the evidence does not show the criteria set forth in 38 CFR § 4.85 are met. An examination for hearing impairment for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a pure tone audiometry test. The examinations did not include speech recognition with the Maryland CNC test and did not include all four applicable frequencies of audiometric testing. Therefore, those tests are not valid for rating purposes. At an October 2014 VA audiology examination, the Veteran exhibited audiometric findings of: HERTZ AVG 1000 2000 3000 4000 RIGHT 96.25 100 90 100 95 LEFT 72.5 45 75 80 90 Speech audiometry testing using a Maryland CNC word list found speech recognition ability of 0 percent in the right ear, and 88 percent in the left ear. Applying the method for evaluating hearing loss to the results of the Veteran’s audiology evaluation, the October 2014 audiometric evaluation found Level XI hearing acuity in the right ear and Level III in the left ear using Table VI. Application of those findings to Table VII corresponds to a 20 percent rating under Diagnostic Code 6100. 38 C.F.R. § 4.85. An exceptional pattern of hearing loss was not shown for the left ear. While an exceptional pattern of hearing loss was shown for the right ear, the use of Table VI is more advantageous. The VA examiners specifically set forth the functional effects of the Veteran’s hearing disability. The Veteran reported that he can no longer possess a commercial driver’s license due to hearing loss. The Veteran also reported a loss of communication with family members and co-workers. The examiner noted that the Veteran also has difficulty “localizing where the sound/voice” was coming from, used closed caption when watching television, and had an inability to hear if there was background noise. Medical treatment records show that the Veteran has been prescribed hearing aids. There is a May 2016 private audiogram of record. However, a review of this record shows it is not adequate for VA rating purposes as the evidence does not show the criteria set forth in 38 CFR § 4.85 are met. At an August 2016 VA audiology examination, the Veteran exhibited audiometric findings of: HERTZ AVG 1000 2000 3000 4000 RIGHT 83.75 90 85 80 80 LEFT 71.25 45 70 75 95 Speech audiometry testing using a Maryland CNC word list found speech recognition ability of 20 percent in the right ear, and 88 percent in the left ear. Applying the method for evaluating hearing loss to the results of the Veteran’s audiology evaluation, the August 2016 audiometric evaluation found Level XI hearing acuity in the right ear and Level III in the left ear using Table VI. Application of those findings to Table VII corresponds to a 20 percent rating under Diagnostic Code 6100. 38 C.F.R. § 4.85. An exceptional pattern of hearing loss was not shown for the left ear. An exceptional pattern of hearing loss was shown for the right ear, but and the use of Table VI is more advantageous. The VA examiners specifically set forth the functional effects of the Veteran’s hearing disability, including a finding that the Veteran’s bilateral hearing loss made it difficult to hear without hearing aids. The examiner also noted the Veteran’s difficulty hearing when any background noise was present and that he had to ask his son to repeat himself. At a December 2019 VA audiology examination, the Veteran exhibited audiometric findings of: HERTZ AVG 1000 2000 3000 4000 RIGHT 91.25 95 95 90 85 LEFT 87.5 65 85 95 105+ Speech audiometry testing using a Maryland CNC word list found speech recognition ability of 0 percent in the right ear, and 48 percent in the left ear. Applying the method for evaluating hearing loss to the results of the Veteran’s audiology evaluation, the August 2016 audiometric evaluation found Level XI hearing acuity in the right ear and Level IX in the left ear using Table VI. Application of those findings to Table VII corresponds to an 80 percent rating under Diagnostic Code 6100. 38 C.F.R. § 4.85. An exceptional pattern of hearing loss was shown in both ears, but the use of Table VI is more advantageous to the Veteran. The VA examiners specifically set forth the functional effects of the Veteran’s hearing disability, including a finding that the Veteran was not able to keep a commercial driving license and had to obtain other work, that the Veteran was unable to talk to anyone without hearing aids, and that the Veteran was unable to understand clearly in most situations without looking directly at a person. The medical evidence of record shows that the Veteran’s audiometric findings have consistently corresponded to a 20 percent rating prior to December 20, 2019, and an 80 percent rating as of December 20, 2019. The Board acknowledges the Veteran’s documented use of hearing aids. A Veteran is competent to describe symptoms of which he has first-hand knowledge. Charles v. Principi, 16 Vet. App. 370 (2002); Washington v. Nicholson, 19 Vet. App. 362 (2005). As the Board finds that hearing loss and its symptomatology are something that the Veteran, as a layperson, is competent to describe, his statements regarding the effects he has experienced due to hearing loss carry probative weight. Barr v. Nicholson, 21 Vet. App. 303 (2007); Falzone v. Brown, 8 Vet. App. 398 (1995). However, the Board is bound in its decisions regarding schedular ratings for hearing loss by the VA regulations for the rating of hearing loss. 38 U.S.C. § 7104(c). Rating hearing loss requires the use of the Maryland CNC speech discrimination test and the pure tone threshold average determined by an audiometry test. The Board does not discount the difficulties that the Veteran experiences as a result of service-connected bilateral ear hearing loss. However, disability ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned based on audiometric evaluations. The Board has no discretion in the matter and is bound by law to apply VA’s rating schedule based on the Veteran’s audiometry results. 38 U.S.C. § 1155; 38 C.F.R. § 4.1; Lendenmann v. Principi, 3 Vet. App. 345 (1992) The Veteran’s hearing loss symptoms and manifestations are fully contemplated by the rating criteria of Diagnostic Code 6100. In this case, the Veteran’s hearing loss symptoms and manifestations of difficulty having conversations and having to wear hearing aids are neither unusual nor exceptional. The schedular rating criteria specifically provide for ratings based on all levels of hearing loss and as measured by both audiometric testing and speech recognition testing. The rating criteria for hearing loss contemplate the functional effects of difficulty hearing and understanding speech. Doucette v. Shulkin, 28 Vet. App. 366 (2017). Accordingly, based on the Veteran’s audiological examinations, the Board concludes that the preponderance of the evidence is against entitlement to an initial rating in excess of 20 percent rating prior to December 20, 2019 and in excess of 80 percent rating as of December 20, 2019. The October 2014, August 2016, and December 2019 VA audiometric examinations did not exhibit findings that warranted a rating greater than the currently assigned ratings and the Veteran has not alleged that his condition has worsened since this examination. Although the Veteran argued that the VA audiology examination was inadequate in a March 2018 VA Form 9, Substantive Appeal to the Board, the RO obtained additional medical evaluations of the Veteran’s hearing loss disability, which did not show any material difference from the previously obtained audiological evaluations. The Board finds that the Veteran’s hearing loss is not shown to result in marked interference with employment or frequent hospitalization such that any higher ratings would be warranted on an extraschedular basis. 38 C.F.R. § 3.321(b)(1). Accordingly, the Board finds that the preponderance of the evidence is against the assignment of any higher ratings for hearing loss. Therefore, the appeal must be denied. Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Cross, 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. Department of Veterans Affairs YOUR RIGHTS TO APPEAL OUR DECISION The attached decision by the Board of Veterans' Appeals (Board) is the final decision for all issues addressed in the "Order" section of the decision. The Board may also choose to remand an issue or issues to the local VA office for additional development. If the Board did this in your case, then a "Remand" section follows the "Order." However, you cannot appeal an issue remanded to the local VA office because a remand is not a final decision. The advice below on how to appeal a claim applies only to issues that were allowed, denied, or dismissed in the “Order.” If you are satisfied with the outcome of your appeal, you do not need to do anything. Your local VA office will implement the Board’s decision. However, if you are not satisfied with the Board's decision on any or all of the issues allowed, denied, or dismissed, you have the following options, which are listed in no particular order of importance: • Appeal to the United States Court of Appeals for Veterans Claims (Court) • File with the Board a motion for reconsideration of this decision • File with the Board a motion to vacate this decision • File with the Board a motion for revision of this decision based on clear and unmistakable error. Although it would not affect this BVA decision, you may choose to also: • Reopen your claim at the local VA office by submitting new and material evidence. There is no time limit for filing a motion for reconsideration, a motion to vacate, or a motion for revision based on clear and unmistakable error with the Board, or a claim to reopen at the local VA office. Please note that if you file a Notice of Appeal with the Court and a motion with the Board at the same time, this may delay your appeal at the Court because of jurisdictional conflicts. If you file a Notice of Appeal with the Court before you file a motion with the Board, the Board will not be able to consider your motion without the Court's permission or until your appeal at the Court is resolved. How long do I have to start my appeal to the court? You have 120 days from the date this decision was mailed to you (as shown on the first page of this decision) to file a Notice of Appeal with the Court. If you also want to file a motion for reconsideration or a motion to vacate, you will still have time to appeal to the court. As long as you file your motion(s) with the Board within 120 days of the date this decision was mailed to you, you will have another 120 days from the date the Board decides the motion for reconsideration or the motion to vacate to appeal to the Court. You should know that even if you have a representative, as discussed below, it is your responsibility to make sure that your appeal to the Court is filed on time. Please note that the 120-day time limit to file a Notice of Appeal with the Court does not include a period of active duty. If your active military service materially affects your ability to file a Notice of Appeal (e.g., due to a combat deployment), you may also be entitled to an additional 90 days after active duty service terminates before the 120-day appeal period (or remainder of the appeal period) begins to run. How do I appeal to the United States Court of Appeals for Veterans Claims? Send your Notice of Appeal to the Court at: Clerk, U.S. Court of Appeals for Veterans Claims 625 Indiana Avenue, NW, Suite 900 Washington, DC 20004-2950 You can get information about the Notice of Appeal, the procedure for filing a Notice of Appeal, the filing fee (or a motion to waive the filing fee if payment would cause financial hardship), and other matters covered by the Court's rules directly from the Court. You can also get this information from the Court's website on the Internet at: http://www.uscourts.cavc.gov, and you can download forms directly from that website. The Court's facsimile number is (202) 501-5848. To ensure full protection of your right of appeal to the Court, you must file your Notice of Appeal with the Court, not with the Board, or any other VA office. How do I file a motion for reconsideration? You can file a motion asking the Board to reconsider any part of this decision by writing a letter to the Board clearly explaining why you believe that the Board committed an obvious error of fact or law, or stating that new and material military service records have been discovered that apply to your appeal. It is important that your letter be as specific as possible. A general statement of dissatisfaction with the Board decision or some other aspect of the VA claims adjudication process will not suffice. If the Board has decided more than one issue, be sure to tell us which issue(s) you want reconsidered. Issues not clearly identified will not be considered. Send your letter to: Litigation Support Branch Board of Veterans' Appeals P.O. Box 27063 Washington, DC 20038 VA FORM DEC 2016 4597 Page 1 CONTINUED ON NEXT PAGE Remember, the Board places no time limit on filing a motion for reconsideration, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to vacate? You can file a motion asking the Board to vacate any part of this decision by writing a letter to the Board stating why you believe you were denied due process of law during your appeal. See 38 C.F.R. 20.904. For example, you were denied your right to representation through action or inaction by VA personnel, you were not provided a Statement of the Case or Supplemental Statement of the Case, or you did not get a personal hearing that you requested. You can also file a motion to vacate any part of this decision on the basis that the Board allowed benefits based on false or fraudulent evidence. Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. Remember, the Board places no time limit on filing a motion to vacate, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to revise the Board's decision on the basis of clear and unmistakable error? You can file a motion asking that the Board revise this decision if you believe that the decision is based on "clear and unmistakable error" (CUE). Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. You should be careful when preparing such a motion because it must meet specific requirements, and the Board will not review a final decision on this basis more than once. You should carefully review the Board's Rules of Practice on CUE, 38 C.F.R. 20.1400-20.1411, and seek help from a qualified representative before filing such a motion. See discussion on representation below. Remember, the Board places no time limit on filing a CUE review motion, and you can do this at any time. How do I reopen my claim? You can ask your local VA office to reopen your claim by simply sending them a statement indicating that you want to reopen your claim. However, to be successful in reopening your claim, you must submit new and material evidence to that office. See 38 C.F.R. 3.156(a). Can someone represent me in my appeal? Yes. You can always represent yourself in any claim before VA, including the Board, but you can also appoint someone to represent you. An accredited representative of a recognized service organization may represent you free of charge. VA approves these organizations to help veterans, service members, and dependents prepare their claims and present them to VA. An accredited representative works for the service organization and knows how to prepare and present claims. You can find a listing of these organizations on the Internet at: http://www.va.gov/vso/. You can also choose to be represented by a private attorney or by an "agent." (An agent is a person who is not a lawyer, but is specially accredited by VA.) If you want someone to represent you before the Court, rather than before the VA, you can get information on how to do so at the Court’s website at: http://www.uscourts.cavc.gov. The Court’s website provides a state-by-state listing of persons admitted to practice before the Court who have indicated their availability to the represent appellants. You may also request this information by writing directly to the Court. Information about free representation through the Veterans Consortium Pro Bono Program is also available at the Court’s website, or at: http://www.vetsprobono.org, mail@vetsprobono.org, or (855) 446-9678. Do I have to pay an attorney or agent to represent me? An attorney or agent may charge a fee to represent you after a notice of disagreement has been filed with respect to your case, provided that the notice of disagreement was filed on or after June 20, 2007. See 38 U.S.C. 5904; 38 C.F.R. 14.636. If the notice of disagreement was filed before June 20, 2007, an attorney or accredited agent may charge fees for services, but only after the Board first issues a final decision in the case, and only if the agent or attorney is hired within one year of the Board’s decision. See 38 C.F.R. 14.636(c)(2). The notice of disagreement limitation does not apply to fees charged, allowed, or paid for services provided with respect to proceedings before a court. VA cannot pay the fees of your attorney or agent, with the exception of payment of fees out of past-due benefits awarded to you on the basis of your claim when provided for in a fee agreement. Fee for VA home and small business loan cases: An attorney or agent may charge you a reasonable fee for services involving a VA home loan or small business loan. See 38 U.S.C. 5904; 38 C.F.R. 14.636(d). Filing of Fee Agreements: If you hire an attorney or agent to represent you, a copy of any fee agreement must be sent to VA. The fee agreement must clearly specify if VA is to pay the attorney or agent directly out of past-due benefits. See 38 C.F.R. 14.636(g)(2). If the fee agreement provides for the direct payment of fees out of past-due benefits, a copy of the direct-pay fee agreement must be filed with the agency of original jurisdiction within 30 days of its execution. A copy of any fee agreement that is not a direct-pay fee agreement must be filed with the Office of the General Counsel within 30 days of its execution by mailing the copy to the following address: Office of the General Counsel (022D), Department of Veterans Affairs, 810 Vermont Avenue, NW, Washington, DC 20420. See 38 C.F.R. 14.636(g)(3). The Office of the General Counsel may decide, on its own, to review a fee agreement or expenses charged by your agent or attorney for reasonableness. You can also file a motion requesting such review to the address above for the Office of the General Counsel. See 38 C.F.R. 14.636(i); 14.637(d). VA FORM DEC 2016 4597 Page 2 SUPERSEDES VA FORM 4597, APR 2015, WHICH WILL NOT BE USED