Citation Nr: 21002558 Decision Date: 01/14/21 Archive Date: 01/14/21 DOCKET NO. 17-07 923 DATE: January 14, 2021 ORDER Entitlement to an initial rating in excess of 10 percent for bilateral hearing loss prior to July 1, 1981 is dismissed. Entitlement to a 40 percent rating, but no higher, for bilateral hearing loss from July 1, 1981 to October 22, 2007 is granted, subject to the laws and regulations governing the award of monetary benefits. FINDINGS OF FACT 1. On October 6, 2020, prior to the promulgation of a decision in the appeal, the Board received notification from the appellant, through her authorized representative, that a withdrawal of the appeal for entitlement to an initial rating in excess of 10 percent for bilateral hearing loss prior to July 1, 1981 was requested. 2. For the period from July 1, 1981 to October 22, 2007 the Veteran’s bilateral hearing loss was manifested by symptoms approximating Literal Designation D in the left ear and Literal Designation E in the right ear. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal for entitlement to an initial rating in excess of 10 percent for bilateral hearing loss prior to July 1, 1981 by the appellant, through her authorized representative have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. 2. For the period from July 1, 1981 to October 22, 2007, the criteria for an initial rating of 40 percent, but no higher, for bilateral hearing loss were met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.85, 4.86 Diagnostic Code (DC) 6100; 1945 Schedule for Rating Disabilities, Extension 8-B (March 23, 1956), DCs 6277 to 6297, later codified at 38 C.F.R. §§ 4.85-4.87a (effective from May 22, 1964). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1948 to May 1952 and is the recipient of the Purple Heart and Combat Infantryman Badge. He died in January 2019. The appellant is his surviving spouse, and she was granted substitution to pursue this claim in November 2019. This matter is before the Board of Veterans’ Appeals (Board) on appeal of an August 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This case was previously before the Board in October 2017 and November 2018. In October 2017, the Board denied entitlement to a rating in excess of 10 percent for bilateral hearing loss prior to October 23, 2007. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). In a June 2018 Order, the Court granted a Joint Motion for Remand (JMR) of the Veteran and the Secretary of Veterans Affairs (the Parties) to vacate and remand the portion of the Board’s decision that denied entitlement to a rating in excess of 10 percent for bilateral hearing loss prior to October 23, 2007. In November 2018 the Board remanded the appeal for further development consistent with the terms of the June 2018 JMR. The issue has now been returned to the Board. Entitlement to an initial rating in excess of 10 percent for bilateral hearing loss prior to July 1, 1981 is dismissed. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the appellant or by his authorized representative. 38 C.F.R. § 20.204. In correspondence received October 6, 2020, prior to the promulgation of a decision in the appeal, the appellant, through her representative, informed the Board that she wished to withdraw the appeal as to the issue of entitlement to an initial rating in excess of 10 percent for bilateral hearing loss prior to July 1, 1981. Hence, there remain no allegations of errors of fact or law for appellate consideration as to that period and the issue is dismissed. Entitlement to a 40 percent rating, but no higher, for bilateral hearing loss since July 1, 1981 is granted, subject to the laws and regulations governing the award of monetary benefits. The appellant contends that the Veteran’s hearing loss was more severely disabling than represented by the 10 percent rating assigned from July 1, 1981 to October 22, 2007. Disability evaluations are determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1999). Nevertheless, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as “staged” ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). The analysis is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods within the period on appeal. Where there is a question as to which of the two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Disability ratings for hearing loss are generally derived from a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing. See Lendemann v. Principi, 3 Vet. App. 345 (1992). The rating criteria for evaluating hearing loss have undergone a number of revisions prior to and during the period on appeal, which began July 1, 1981. Below, the substantive changes to the rating criteria for each revision during this time are discussed in further detail. There is no indication that any of the revised criteria are intended to have retroactive effect, and accordingly, the claim should be evaluated according to each set of revised criteria beginning only on the effective date of those new criteria. See VAOPGCPREC 3-2000 (2000) and 7-2003 (2003). Historically, the rating criteria for the evaluation of bilateral hearing loss are set forth under the 1945 VA Schedule for Rating Disabilities, as well as the provisions of Extension 8 to the 1945 rating schedule, effective on February 27, 1952. The 1945 criteria originally provided that hearing loss was to be evaluated in terms of the number of feet at which ordinary conversational voice was heard. Under the February 1952 revision, a new system was implemented whereby either the results of controlled speech reception testing, or puretone audiometry, were to be used in evaluating hearing loss. Such examinations were intended to replace the former conversational voice test wherever practicable. Controlled speech reception examinations involved, for each ear separately, measurements of the threshold of intensity in terms of speech reception decibel loss, and the percentage of word discrimination. Puretone audiometry compared the average decibel loss in each ear at three frequencies: 500, 1000, and 2000 Hertz (Hz). The rating schedule then established six levels of auditory acuity, from Level A, for lesser degrees of hearing impairment, through Level F, for greater degrees of hearing impairment. After determining the designated level of auditory acuity in each ear (based on either controlled speech reception test results or puretone audiometry), those levels were combined to arrive at an overall evaluation for bilateral hearing loss. The criteria for the evaluation of hearing loss were again revised, effective March 23, 1956, with the issuance of Extension 8-B. These were the rating criteria in effect at the time of March 30, 1966, effective date of the Veteran’s grant of service connection for bilateral hearing loss, as well as the beginning of the period on appeal, July 1, 1981. This amendment retained the use of controlled speech reception tests and puretone audiometry as the methods for measurement of auditory acuity, and clarified that the results of conversational voice testing would not be utilized for rating purposes except in unusual cases where no other data was available. A chart for purposes of determining an overall evaluation of speech reception decibel loss and word discrimination scores were utilized (Table I), was added to the rating criteria. A previously-existing chart for determining an overall evaluation where puretone audiometry was used (Table II), was updated to reflect revised levels of impairment corresponding to each available percentage rating. [The 1945 VA rating schedule was also amended by Extension 8-A, dated October 27, 1952 (consideration of bone-conduction retention in some circumstances for audiometric testing), and extension 8-C, dated June 22, 1956 (renumbering of diagnostic codes pertaining to hearing loss), although these particular amendments do not substantively affect the consideration of the present claim.] All of these provisions were later incorporated into VA regulations, effective May 22, 1964, through December 17, 1987. See 38 C.F.R. § 4.85-4.87a Diagnostic Codes 6277 to 6297 (1965). Effective December 18, 1987, the relevant regulations were again amended such that evaluations of defective hearing ranging from noncompensable to 100 percent based on organic impairment of hearing acuity were to be measured by the results of speech discrimination tests, together with the average hearing threshold levels as measured by puretone audiometry tests at 1000, 2000, 3000, and 4000 Hz. To evaluate the degree of disability for service-connected hearing loss, the rating schedule established eleven (11) auditory acuity levels, designated from level I for essentially normal acuity through level XI for profound deafness. 38 C.F.R. § 4.85. These rating criteria were again revised, effective June 10, 1999. However, the substantive provisions under the more recent criteria have not significantly changed. See 38 C.F.R. § 4.87 (1998), and 38 C.F.R. § 4.85 (1998). As such, currently, to evaluate the degree of disability from bilateral hearing loss, the Rating Schedule establishes 11 auditory hearing acuity levels based upon average puretone thresholds and speech discrimination. See 38 C.F.R. § 4.85, DC 6100. 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 puretone audiometry test. Examinations are conducted without the use of hearing aids. 38 C.F.R. § 4.85 (a). 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 (horizontal rows) and the puretone threshold average (vertical columns). The Roman numeral designation is located at the point where the row and column intersect. 38 C.F.R. § 4.85 (b). Table VIa, “Numeric Designation of Hearing Impairment Based Only on Puretone Threshold Average,” is used to determine a Roman numeral designation (I through XI) for hearing impairment based only on puretone threshold average. Table VIa is used when the examiner certifies that the use of the speech discrimination test is not appropriate due to language difficulties, inconsistent speech discrimination scores, etc., or when indicated under the provisions of § 4.86. 38 C.F.R. § 4.85 (c). “Puretone threshold average” as used in Tables VI and VIa is the sum of the puretone thresholds at 1000, 2000, 3000 and 4000 Hertz and divided by four. This average is used in all cases (including those under § 4.86) to determine a Roman numeral designation from Tables VI and VIa. 38 C.F.R. § 4.85 (d). Table VII, “Percentage Evaluations of Hearing Impairment,” is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment in each ear. The horizontal rows represent the ear having the better hearing and the vertical columns represent the ear having the poorer hearing. The percentage evaluation is located at the point where the row and the column intersect. 38 C.F.R. § 4.85 (e). Provisions for evaluating exceptional patterns of hearing impairment are as follows: (a) When the puretone thresholds at each of the four specified frequencies (1000, 2000, 3000 and 4000 Hertz ) are 55 decibels or more, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. Each ear will be evaluated separately; (b) When the puretone thresholds are 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral; the numeral will then be elevated to the next higher Roman numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86. In this case, the Veteran was afforded a VA audiology examination in May 1966. In pertinent part, puretone thresholds were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 65 70 80 100 10 LEFT 10 10 10 65 45 The examiner did not provide speech reception or word discrimination scores. In an August 2016 statement the Veteran’s wife reported that the Veteran’s hearing loss worsened noticeably in the early 1980s. She observed that the Veteran was having more difficulty understanding others, leading him to participate in a research study at that time. She observed that the Veteran would walk away from other people, unaware that they were talking to him, and was unable to judge the volume of his own voice. The Veteran’s wife specifically noted that at a 4th of July barbecue, the Veteran’s sister remarked that the Veteran’s hearing loss was getting worse and questioned why the Veteran had not gotten a hearing aid. In an August 2016 statement, the Veteran reported that he participated in a research project in 1981, where he was told that his hearing loss was “significant” and that he was deaf in his right ear and had loss of high tone hearing in the left ear. The Veteran stated that from his perspective his hearing had “always been as bad as it is now.” In October 2020 a private audiologist, Dr. J.L. opined that it was at least as likely as not that the Veteran’s hearing loss worsened to the moderately severe range starting in 1981, with a puretone average between 56-62, correlating to a numeric designation of IV for his better ear. Dr. J.L. did not provide an assessment of the severity of hearing loss for the other ear, nor did she provide an assessment of speech recognition thresholds. Dr. J.L.’s opinion took account of the lay statements of the Veteran and his wife, as well as her observation that hearing loss generally worsened over time. Neither the May 1966 examiner, nor Dr. J.L.’s opinion provides speech reception or word discrimination scores. As such, pursuant to the regulations in place on July 1, 1981, the Veteran’s puretone threshold scores are to be utilized. The average puretone threshold score for the Veteran’s right ear at 500, 1000, and 2000 Hz was 71.66 decibels in May 1966. Dr. J.L. opined that the average for the left ear worsened to 56-62 decibels in 1981. Assuming that the May 1966 findings are representative of the Veteran’s right ear hearing loss in July 1981, application of these scores to Table II results in a finding of a Literal Designation D in the left ear and Literal Designation E in the right ear, warranting a 40 percent evaluation. See 1945 Schedule for Rating Disabilities, Extension 8-B (March 23, 1956), Diagnostic Codes 6277 to 6297, Table II, later codified at 38 C.F.R. §§ 4.85-4.87a (effective from May 22, 1964). Current regulations became effective December 18, 1987, and the Board has therefore also considered whether a higher rating is warranted under those provisions. However, neither the May 1966 examination, nor Dr. J.L.’s opinion provide speech discrimination scores, or any explanation why speech discrimination scores were inappropriate, nor does the Veteran meet the criteria for an exceptional pattern of hearing loss during this period and thus, the current regulations may not be utilized to arrive at an alternate evaluation. However, even to the extent that the puretone threshold averages are applied to Table VIA and Table VII, they do not provide a basis for a rating higher than 40 percent at any point during this period. In this regard, the average puretone threshold score for the Veteran’s right ear at 1000, 2000, 3000, and 4000 Hz was 65 decibels in May 1966. Dr. J.L. opined that the average for the left ear worsened to 56-62 decibels in 1981. Application of these scores to Table VIA in 38 C.F.R. § 4.85 results in a finding of Level V hearing loss in the right ear and Level IV hearing loss in the left ear. Application of those findings to Table VII yields a 10 percent rating. The Board acknowledges that the February 2020 VA examiner declined to provide the opinion requested by the Board in its November 2018 remand, and the representative’s argument that this opinion is inadequate. However, in this case there is no medical or lay evidence which provides a basis to find that a rating in excess of 40 percent is warranted during this period. In this regard, the Veteran and his wife have alleged that the Veteran’s hearing loss worsened from the severity represented by a 10 percent rating, starting July 1, 1981. They have not provided any lay evidence to indicate that his hearing loss was worse than represented by the 40 percent rating assigned herein. Accordingly, remand to obtain any additional medical opinion would only serve to delay this determination and would provide no further benefit to the appellant. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (holding that remand is unnecessary where it would impose additional burdens on the Board with no benefits flowing to the veteran). Accordingly, remand to obtain another medical opinion is not warranted. (Continued on the next page)   Based on the foregoing, the evidence of record is at least in equipoise as to whether the criteria for a 40 percent rating, but no higher, for bilateral hearing loss since July 1, 1981 are met. The claim is granted. LAURA E. COLLINS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Paul J. Bametzreider 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.