Citation Nr: 21002396 Decision Date: 01/13/21 Archive Date: 01/13/21 DOCKET NO. 15-13 091 DATE: January 13, 2021 ORDER Entitlement to a disability rating of 20 percent for bilateral hearing loss for the period from February 23, 2015 through September 12, 2019 is granted. Entitlement to a disability rating greater than 10 percent for bilateral hearing loss prior to February 23, 2015 and since September 13, 2019 is denied. FINDINGS OF FACT 1. For the period from February 23, 2015 through September 12, 2019 the Veteran had exceptional patterns of hearing loss in each ear with at least Level V hearing loss in each ear. 2. Prior to February 23, 2015 and since September 13, 2019, the Veteran’s bilateral hearing manifested with hearing acuity of no worse than Level IV in the right ear and Level V in the left ear. CONCLUSIONS OF LAW 1. The criteria for a rating of 20 percent, but no higher, for bilateral hearing loss have been satisfied from February 23, 2015 through September 12, 2019. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100. 2. The criteria for a rating in excess of 10 percent for bilateral hearing loss have not been satisfied prior to February 23, 2015 or since September 13, 2019. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1966 to February 1969. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified during a hearing with the undersigned in October 2018. The Board remanded this appeal in October 2018 and September 2020, and it has now returned for further appellate review. This appeal stems from a May 9, 2014 claim for an increased rating. Disability ratings are determined by evaluating 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, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Different ratings may be assigned for different periods of time for the same disorder if the facts show distinct time periods with different levels of disability. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. See 38 C.F.R. § 4.3. Ratings of defective hearing 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 as measured by pure tone audiometry tests in the frequencies 1000, 2000, 3000 and 4000 Hertz. 38 C.F.R. § 4.85. Under 38 C.F.R. § 4.85, Table VI, Numeric Designation of Hearing Impairment Based on Puretone Threshold Average and Speech Discrimination, is used to determine a Roman numeral designation (I through XI) for hearing impairment based on a combination of the percent of speech discrimination and the pure tone threshold average. The Roman numeral designation is located at the point where the percentage of speech discrimination and pure tone average intersect. 38 C.F.R. § 4.85(b). The pure tone threshold average is the sum of the pure tone thresholds at 1000, 2000, 3000, and 4000 Hertz, divided by 4. Table VII, Percentage Evaluation for Hearing Impairment, is used to determine the rating by combining the Roman numeral designations for hearing impairment of each ear. The horizontal rows represent the ear having the better hearing and the vertical columns the ear having the poor hearing. The disability rating is located at the point where the rows and column intersect. 38 C.F.R. § 4.85(e). When the pure tone threshold at each of the four specified frequencies of 1000, 2000, 3000 and 4000 Hertz is 55 decibels or more, the Roman numeral designation for hearing impairment will be determined from either Table VI or Table VIA, whichever results in the higher numeral. When the pure tone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, the Roman numeral designation for hearing impairment will be determined 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 evaluated separately. 38 C.F.R. § 4.86 (addressing exceptional patterns of hearing). Table VIA can also be used when the examiner certifies that use of the speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc. 38 C.F.R. § 4.85(c). During the appeal process, VA audiological testing was performed on multiple occasions, to include July 2014, February 2015, March 2017, June 2019, and September 2019. Speech Discrimination testing using the Maryland CNC test was only performed during the July 2014 and September 2019 VA examinations. As the Northwestern University Auditory Test No. 6 (NU-6) was applied at the remaining examinations, rating using Speech Discrimination scores is not appropriate regarding the results from those evaluations. 38 C.F.R. § 4.85(a). However, as noted above, if there is an exceptional pattern of hearing loss or the examiner certified that use of the speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc., then rating could be made using Table VIA without consideration of Speech Discrimination scores. 38 C.F.R. § 4.85(c). The Board recognizes that VA audiological testing was performed in March 2014; however, Speech Discrimination testing was not performed at the time and pure tone thresholds were not recorded at 1000 Hertz in the left ear. As such, these testing results cannot be used for rating purposes. 38 C.F.R. § 4.85(a), (d). During a July 2014 VA audiological examination, the Veteran reported difficulty hearing and understanding speech in all listening situations. The results of the examination, as measured by a pure tone audiometry test, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 60 70 70 70 68 LEFT 50 65 65 65 61 As an exceptional pattern of hearing is not present and Speech Discrimination testing was found to be appropriate, VA may not utilize Table VIA. 38 C.F.R. § 4.85(c). Speech recognition was 76 percent in the right ear and 84 percent in the left ear, as measured by the Maryland CNC test. Applying these values to Table VI, the right ear is assigned a Level IV Roman numeral designation and the left ear is assigned a Level III Roman numeral designation. Pursuant to Table VII, these levels correspond with the currently assigned 10 percent disability evaluation. VA audiological testing on February 23, 2015 showed as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 65 80 70 60 69 LEFT 60 75 65 60 65 As the pure tone threshold was 55 or more at each level, VA may utilize Table VIA. 38 C.F.R. § 4.85(c). Applying the values to the table, both ears are assigned a Level V Roman numeral designation. Pursuant to Table VII, these levels correspond to a 20 percent disability evaluation. VA audiological testing in March 2017 showed as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 55 65 80 70 68 LEFT 60 75 70 65 68 As the pure tone threshold was 55 or more at each level, VA may utilize Table VIA. 38 C.F.R. § 4.85(c). Applying the values to the table, each ear is assigned a Level V Roman numeral designation. Pursuant to Table VII, these levels correspond to a 20 percent disability evaluation. VA audiological testing in June 2019 showed as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 65 80 70 60 69 LEFT 60 80 75 70 71 As the pure tone threshold was 55 or more at each level, VA may utilize Table VIA. 38 C.F.R. § 4.85(c). Applying the values to the table, the right ear is assigned a Level V Roman numeral designation and the left ear is assigned a Level VI Roman numeral designation. Again, as above, these levels correspond to a 20 percent disability evaluation. Finally, the Veteran presented for a VA audiological examination on September 13, 2019. The Veteran reported difficulty hearing and understanding, especially while in a group or crowd. The results of the examination were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 55 70 60 60 61 LEFT 55 75 65 65 65 As the pure tone threshold was 55 or more at each level, VA may utilize Table VIA. 38 C.F.R. § 4.85(c). Speech recognition was 88 percent in the right ear and 84 percent in the left ear, as measured by the Maryland CNC test. Applying these values to Table VI, both ears would be assigned a Level III Roman numeral designation. Pursuant to Table VII, these levels correspond with a 10 percent disability evaluation. Applying these values to Table VIA, the right ear would be assigned a Level IV Roman numeral designation and the left ear a Level V. Pursuant to Table VII, these levels correspond with a 10 percent disability evaluation. The Board acknowledges that the Veteran has trouble hearing and sympathizes with his complaints regarding the functional impact of his hearing loss on his daily life, including difficulty understanding conversations. The Board notes, however, that the assignment of disability ratings for hearing impairment is derived from a mechanical formula based on levels of pure tone threshold average and speech discrimination. Thus, the medical evidence of record is more probative than lay contentions as to the extent of the Veteran’s hearing loss. Notably, the VA examiners addressed the functional effects of the Veteran’s hearing loss on his daily activities. Martinak v. Nicholson, 21 Vet. App. 447, 455-56 (2007). For the above reasons, the Board finds that a 20 percent but no higher rating is warranted for the period from February 23, 2015 through September 12, 2019 and that at all other times during the appeal period a rating in excess of 10 percent is not warranted. 38 C.F.R. §§ 4.3, 4.7, 4.85. Nathan Kroes Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Jarman, 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.