Citation Nr: 21002679 Decision Date: 01/14/21 Archive Date: 01/14/21 DOCKET NO. 14-28 487A DATE: January 14, 2021 ORDER Entitlement to an initial compensable rating prior to January 23, 2020, and in excess of 10 percent thereafter, for service-connected bilateral hearing loss is denied. FINDING OF FACT 1. Prior to January 23, 2020, audiometric testing revealed no worse than Level I hearing acuity in both ears. 2. Beginning January 23, 2020, audiometric testing revealed no worse than Level IV hearing acuity in the right ear and Level III hearing in the left ear. CONCLUSION OF LAW The criteria for an initial compensable rating prior to January 23, 2020, and in excess of 10 percent thereafter, for service-connected bilateral hearing loss are not met. 38 U.S.C. §§ 1155, 5103, 5103A; 38 C.F.R. §§ 3.159, 3.321, 4.85, 4.86 Diagnostic Code 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1997 to May 2000. This case is before the Board of Veterans’ Appeals (Board) on appeal from an August 2012 Regional Office (RO) rating decision. In that rating decision, the RO granted service connection for bilateral hearing loss and assigned an initial noncompensable disability rating, effective from October 19, 2011. The Veteran’s notice of disagreement (NOD) was received in October 2012. The RO issued a statement of the case (SOC) in July 2014. The Veteran’s VA Form 9, substantive appeal to the Board, was received in August 2014. In May 2018, the Board remanded the case to the RO for further development and adjudicative action. During the pendency of the appeal, the RO issued a rating decision in April 2020 granting an increased rating for service-connected bilateral hearing loss to 10 percent disabling, effective from January 23, 2020. The Board has therefore recharacterized the issue on appeal in order to comport with this award of benefits. The Veteran asserts that his bilateral hearing loss has and will continue to degenerate. His quality of life has deteriorated, and his hearing has prevented him from enjoying activities, and the ability to communicate in social environments. The Veteran contends that VA had not utilized all current medical technology to correctly evaluate his medical condition. See VA August 2014 Form 9. Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. When the evidence is in relative equipoise, the veteran is accorded the benefit of the doubt. 38 U.S.C. § 5107(b). In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where, the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. See Fenderson v. West, 12 Vet. App. 119 (1999). Moreover, staged ratings are appropriate in any increased-rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). Relevant laws and regulations stipulate that evaluations of defective hearing range from noncompensable to 100 percent based on the organic impairment of hearing acuity. Hearing impairment is measured by the results of controlled speech discrimination tests together with the average hearing threshold levels (which in turn, are measured by pure tone audiometric tests in the frequencies of 1000, 2000, 3000 and 4000 cycles per second (Hertz)). See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992) (defective hearing is rated based on a mere mechanical application of the rating criteria). The provisions of 38 C.F.R. § 4.85 establish eleven auditory acuity levels from I to XI. If hearing loss is service-connected for only one ear, in order to determine the percentage evaluation from Table VII, the non-service-connected ear will be assigned a Roman numeral designation for hearing impairment of I. 38 C.F.R. § 4.85(f). Tables VI and VII as set forth in section 4.85(h) are used to calculate the rating to be assigned. In guidance for cases involving exceptional patterns of hearing impairment, the schedular criteria stipulates that, when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000 and 4000 Hertz) is 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. 38 C.F.R. § 4.86(a). Each ear is evaluated separately. Additionally, when the pure tone threshold is 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. 38 C.F.R. § 4.86(b). The numeral will then be elevated to the next higher Roman numeral. Id. Each ear will be evaluated separately. Regarding the evidence of record, the Veteran was provided with a VA examination in March 2012. The March 2012 VA audiology examination report reveals that the Veteran reported that he has trouble hearing instructions in the classroom. He can only use the phone on the left ear, because loud noises affect his right ear. The Veteran also has trouble hearing in restaurants, because he does not wear his hearing aids. He noted that he smiles and nods and pretends he is following along with conversations. Speech recognition, using the Maryland CNC Word List, was 92 percent in the right ear and 94 percent in the left ear. On audiometric testing, pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 15 60 65 55 49 LEFT 10 60 60 55 46 Applying the method for evaluating hearing loss to the results of the Veteran’s audiological evaluation reveals the exception requirements for hearing impairment under 38 C.F.R. § 4.86 do not apply. The examiner also did not certify that the use of speech discrimination test was not appropriate. Therefore, the numerical hearing impairment is determined only by Table VI. The Veteran’s hearing acuity in both ears is assigned to Level I according to Table VI. Combining Level I for the right ear and Level I for the left ear according to Table VII reveals a 0 percent or noncompensable rating. See 38 C.F.R. § 4.85, Diagnostic Code 6100. The Veteran underwent another VA examination in January 2020. The January 2020 VA audiology examination report reveals that the Veteran reported that he completely has trouble hearing people if he does not wear his hearing aids and he always has to ask people to repeat themselves. He noted that the right ear seems to be worse. Speech recognition, using the Maryland CNC Word List, was 86 percent in the right ear and 92 percent in the left ear. On audiometric testing, pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 20 70 70 65 56 LEFT 20 70 70 60 55 Applying the method for evaluating hearing loss to the results of the Veteran’s audiological evaluation reveals the exception requirements for hearing impairment under 38 C.F.R. § 4.86 apply for both ears. Both ears demonstrated an exceptional patten of hearing impairment as the results show a pure tone threshold 30 dB or less at 1000 Hz and 70 dB or more at 2000 Hz under 38 C.F.R. § 4.86(b). Thus, the Veteran’s hearing impairment will be evaluated under either Table VI or Table VIa, whichever results in the higher numeral. The Veteran’s hearing acuity in right ear is ear is assigned to Level II and hearing acuity in the left ear is assigned to Level I according to Table VI. Combining Level II hearing for the right ear and Level I hearing for the left ear reveals a 0 percent or noncompensable rating under Table VII. The Veteran’s hearing acuity in the right ear is assigned to Level IV and his hearing acuity in the left ear is assigned to Level III using Table VIa, resulting in higher numerals for each ear. Combining Level IV hearing for the right ear and Level III hearing for the left ear according to Table VII reveals a 10 percent rating. 38 C.F.R. § 4.85, Diagnostic Code 6100. Accordingly, the January 2020 VA examination reveals that a 10 percent disability rating is warranted for the Veteran’s bilateral hearing loss disability. The Veteran submitted private audiological reports dated in July 2014 and February 2017. Unfortunately, the audiometric testing in July 2014 and February 2018 did not include pure tone threshold, in decibel, at 3000 Hz, which is required under 38 C.F.R. § 4.85 to determine the disability rating warranted for bilateral hearing loss. Furthermore, the private audiologist did not indicate the type of word list used in conducting the speech discrimination tests. The Maryland CNC Word List is required under 38 C.F.R. § 4.85 to evaluate the Veteran’s hearing impairment. Although the Board acknowledges that VA would be required to clarify whether the Maryland CNC test was used in evaluation during private audiological testing and that such has not been accomplished in this case, the Board notes that regardless of any such clarification in this case, as the audiometric data is missing from the 3000 Hz level in those tests, such clarification is unnecessary at this time as any such clarification would not render those private audiological tests valid for rating purposes under 38 C.F.R. § 4.85. See Savage v. Shinseki, 24 Vet. App. 259 (2011) (VA has a duty to return for clarification unclear or insufficient examination reports even when they do not originate from VA medical personnel, particularly with regards to private audiological examinations). The Veteran’s VA treatment records also document that the Veteran was provided with audiograms in March 2012 and May 2018. In, a VA staff audiologist noted that clinical care audiometric evaluations are completed using CID (Central Institute for the Deaf) W-22 word lists and not the Maryland CNC word lists as required under the Rating Schedule. Thus, the results of these evaluations cannot be used to evaluate the severity of the Veteran’s service-connected bilateral hearing loss. The Board has considered the Veteran’s complaints regarding the impact of hearing loss on his daily life, but as noted above, the assignment of disability ratings for hearing impairment is primarily derived from a mechanical formula based on levels of pure tone threshold average and speech discrimination. Lendenmann, 3 Vet. App. 345. The functional effects of hearing loss on his daily life activities and occupational functioning were discussed by the Veteran at his VA examinations. See 38 C.F.R. § 4.10; Martinak v. Nicholson, 21 Vet. App. 447, 455-56 (2007). The Veteran is noted to have reported difficulty hearing people without his hearing aids, asking others to repeat themselves, and using a phone only with his left ear; however, this is reflective of the types of functional difficulty that would be expected to be caused by his recorded levels of hearing loss. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (manifestations such as difficulty hearing speech are the types of difficulties contemplated by the schedular criteria for hearing loss.). Accordingly, the examinations of record are sufficiently in compliance with the provisions of VA regulations, and they are afforded great probative value in determining the Veteran’s level of hearing impairment. Under these circumstances, the Board finds that the record presents no basis for assignment of a compensable disability rating prior to January 23, 2020 and or a disability rating in excess of 10 percent disabling for the period beginning January 23, 2020, for his service-connected bilateral hearing loss. Accordingly, the claim for increased evaluation for his bilateral hearing loss must be denied based on the evidence of record at this time. See 38 U.S.C. § 1155; 38 C.F.R. §§ 4.7, 4.85, 4.86. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claims, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. MARTIN B. PETERS Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Berry, 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.