Citation Nr: 21002770 Decision Date: 01/14/21 Archive Date: 01/14/21 DOCKET NO. 13-06 558A DATE: January 14, 2021 ORDER Entitlement to a compensable rating for bilateral hearing loss prior to February 14, 2013 is denied. Entitlement to an evaluation in excess of 10 percent for bilateral hearing loss from February 14, 2013 to April 9, 2017 is denied. Entitlement to an evaluation in excess of 50 percent for bilateral hearing loss from April 10, 2017 to October 22, 2019 is denied. Entitlement to an evaluation of 80 percent for bilateral hearing loss from October 23, 2019 is granted. FINDINGS OF FACT 1. Prior to February 14, 2013, the Veteran’s service-connected bilateral hearing loss was manifested by no worse than Level II hearing acuity in the right ear, and no worse than Level II hearing acuity in the left ear. 2. From February 14, 2013 to April 9, 2017, the Veteran’s service-connected bilateral hearing loss was manifested by no worse than Level IV hearing acuity in each ear. 3. From April 10, 2017 to October 22, 2019, the Veteran’s service-connected bilateral hearing loss was manifested by no worse than Level VIII hearing acuity in each ear. 4. From October 23, 2019, the Veteran’s service-connected bilateral hearing loss was manifested by Level X hearing acuity in each ear. CONCLUSIONS OF LAW 1. The criteria for entitlement to a compensable rating for bilateral hearing loss prior to February 14, 2013 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 3.385, 3.400, 4.1, 4.31, 4.85, Diagnostic Code 6100. 2. The criteria for entitlement to an evaluation in excess of 10 percent for bilateral hearing loss from February 14, 2013 to April 9, 2017 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 3.400, 4.1, 4.85, Diagnostic Code 6100. 3. The criteria for entitlement to an evaluation in excess of 50 percent for bilateral hearing loss from April 9, 2017 to October 22, 2019 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 3.400, 4.1, 4.85, 4.86(a), Diagnostic Code 6100. 4. The criteria for entitlement to an evaluation in excess of 80 percent for bilateral hearing loss from October 23, 2019 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 3.400, 4.1, 4.85, 4.86(a), Diagnostic Code 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served active duty in the United States Army from November 1968 to August 1970. This matter comes to the Board of Veterans’ Appeals (Board) on appeal of a March 2012 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO) in San Diego, CA. In December 2016 and July 2018, the Board remanded the issue on appeal for additional development, and the case has since been returned for further appellate review. A remand by the Board confers on the claimant a legal right to substantial compliance with the remand order. Stegall v. West, 11 Vet. App. 268 (1998). The Board’s July 2018 remand directed the RO to confirm use of the Maryland CNC in April 2017 private audio testing and obtain the numeral results. The provider was contacted in June 2020 and it was confirmed that the Maryland CNC list was used in testing. The RO was also instructed to obtain an addendum opinion from an examiner indicating when it is factually ascertainable that the Veteran’s hearing loss prior to 2013 decreased such that a rating of ten percent is warranted. A VA examiner provided an opinion on the subject in August 2020. As such, substantial compliance with the Board’s 2018 remand was achieved and the evidence is discussed below. Id. at 271. The Board also notes that in a brief dated in November 2020, the Veteran’s representative presents argument on the issue of service connection for tinnitus, which was indicated on the Veteran’s original 2012 claim. However, as the Board explained in the December 2016 Remand, this matter is not presently before the Board. A statement of the case was issued in March 2013 on the higher initial rating for hearing loss and the denial of service connection for tinnitus. The Veteran perfected his appeal with correspondence in March 2013, which was accepted in lieu of a VA Form 9, Substantive Appeal. This correspondence only addressed the hearing loss rating. It did not mention tinnitus. There was no further communication from the Veteran or his representative regarding tinnitus until November 2016, long after the filing period requirements for a substantive appeal (within one year of the rating decision on appeal, or within 60 days of the statement of the case, whichever is later). As a timely appeal of the issue of service connection for tinnitus was not submitted, the Board has no jurisdiction over that issue. Increased Ratings Evaluations of defective hearing range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of a controlled Maryland CNC speech discrimination test together with the average hearing threshold level measured by pure tone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hertz). 38 C.F.R. § 4.85, Diagnostic Code 6100. To evaluate the degree of disability from bilateral service-connected hearing loss, the schedule establishes 11 auditory hearing acuity levels designated from Level I for essentially normal hearing acuity through Level XI for profound deafness. 38 C.F.R. § 4.85, Tables VI and VII. An exceptional pattern of hearing impairment occurs when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more. 38 C.F.R. § 4.86(a). In that situation, 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. Further, when the average 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, and that numeral will then be elevated to the next higher numeral. 38 C.F.R. § 4.86(b). 1. Entitlement to a compensable rating for bilateral hearing loss prior to February 14, 2013 A March 26, 2012 rating decision granted the Veteran entitlement to service-connection for bilateral hearing loss with an effective date of January 9, 2012, the date of his claim. He was assigned a zero percent evaluation. The Veteran appealed the initial rating, and contends that he is entitled to a compensable rating effective January 9, 2012 based on an audio examination conducted prior to his claim, in October 2011, and another one conducted after his compensation examination, dated in July 2012. As an initial matter, the record does not contain audiogram results from October 2011 or July 2012. Per the July 2018 remand directives, the RO requested an addendum opinion whether 2011 and 2012 audiology results were consistent with results from his February 2013 VA examination. An opinion was provided in August 2020. The examiner noted that treatment records note “mild to severe sensorineural hearing loss” in October 2011 and that only partial results were found for July 2012; however, the actual records of the audiograms on those dates no longer exist, so there was no way to ascertain when his hearing loss had progressed to the level documented in in the February 2013 exam. The Board finds this opinion to be adequate, and that sufficient efforts were made to locate the missing records, but they are unattainable. The record does contain the Veteran’s VA examination results, from March 16, 2012. The pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 25 60 65 60 53 LEFT 25 35 70 55 46 Speech audiometry, using the Maryland CNC, revealed speech recognition ability of 86 percent in the right ear and of 88 percent in the left ear. Applying the results to Table VI, the findings yield a numeric designation of Level II in the right ear and Level II in the left ear. Entering the resulting bilateral numeric designation of Level II for the right ear and Level II for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a zero percent disability rating under Diagnostic Code 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. The Board expressly acknowledges its consideration of the lay evidence of record when adjudicating this claim, including the Veteran’s assertion that his symptoms during this period warrant a higher rating. The Veteran is competent to report difficulty with his hearing; however, disability ratings for hearing loss are derived from a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). Based on the evidence above, a compensable rating for the Veteran’s bilateral hearing loss is not warranted for the period prior to February 14, 2013 and the claim for increased rating must be denied. 2. Entitlement to an evaluation of 10 percent for bilateral hearing loss from February 14, 2013 to April 9, 2017 A March 5, 2013 rating decision increased the Veteran’s rating to 10 percent based on a February 14, 2013 VA examination. In relation to the claim, an authorized audiological evaluation was conducted on February 14, 2013. Pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 35 65 65 70 59 LEFT 35 55 75 70 59 The examiner indicated difficulty in obtaining pure tone results, noting significant time was spent to obtain reliable results. She omitted Maryland CNC speech discrimination results because she deemed them unreliable and inconsistent. She noted use of the scores is not appropriate for the Veteran due to excessive number of omissions, delayed responses, and illogical guesses. Accordingly, applying the results to Table VIA, the findings yield a numeric designation of Level IV in the right ear and Level IV in the left ear. Entering the resulting bilateral numeric designation of Level IV for the right ear and Level IV for the left ear to 38 C.F.R. § 4.85, Table VIA, equates to a 10 percent disability rating under Diagnostic Code 6100. Based on the evidence above, a rating in excess of 10 percent for the Veteran’s bilateral hearing loss is not warranted. 3. Entitlement to an evaluation of 50 percent for bilateral hearing loss from April 10, 2017 to October 23, 2019 A July 2020 rating decision increased the Veteran’s evaluation for bilateral hearing loss to 50 percent disabling, effective April 10, 2017. The Veteran has provided private treatment records containing an April 10, 2017 audiological evaluation conducted by Dr. EC. In numerical format, the pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 75 90 95 100 90 LEFT 85 90 90 95 90 Speech audiometry revealed speech recognition ability of 80 percent in the right ear and of 76 in the left ear. In a June 30, 2020 telephone conversation, the RO confirmed with the provider that Maryland CNC word list was implemented in the speech recognition testing. As such, use of the examination results is appropriate for rating purposes. 38 C.F.R. § 4.85. Applying the results to Table VI, the findings yield a numeric designation of Level V in the right ear and Level V in the left ear. Entering the resulting bilateral numeric designation of Level V for the right ear and Level V for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a 20 percent disability rating under Diagnostic Code 6100. However, as an exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was shown in both ears, Table VIA may be used. This yields Level VIII in the right ear and Level VIII in the left ear. Entering the resulting bilateral numeric designation in Table VII, equates to a 50 percent disability rating under Diagnostic Code 6100. Here, Table VIA yields the highest rating. Based on the evidence above, a rating in excess of 50 percent for the Veteran’s bilateral hearing loss during this period is not warranted. 4. Entitlement to an evaluation in excess of 50 percent for bilateral hearing loss from October 23, 2019 The Veteran has provided October 23, 2019 audiological testing results indicating an increase in his symptoms since the last established effective date. Upon examination, he describes a gradual decrease in hearing sensitivity and the most difficulty with speech, the television, and his grandchildren. Pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 90 100 105 105 100 LEFT 100 105 105 105 104 The examination indicates the Maryland CNC word list was not utilized for speech recognition testing, however, an exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was shown in both ears. As such, to Table VIA is appropriate for computation, and yields Level X in the right ear and Level X in the left ear. Entering the resulting bilateral numeric designation of Level X for the right ear and Level X for the left ear to 38 C.F.R. § 4.85, Table VII, equates to an 80 percent disability rating under Diagnostic Code 6100. The functional impact that the Veteran describes, is contemplated by the rating criteria at each stage. Doucette v. Shulkin, 28 Vet. App. 366 (2017). The Veteran’s main complaint is reduced hearing acuity and clarity, which is what is contemplated in the rating assigned. See Rossy v. Shulkin, 29 Vet. App. 142, 145 (2017). Based on the above, the evidence supports a rating of 80 percent for bilateral hearing loss from October 23, 2019. Bethany L. Buck Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T.N. Chapman, 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.