Citation Nr: 21003036 Decision Date: 01/19/21 Archive Date: 01/19/21 DOCKET NO. 14-25 409A DATE: January 19, 2021 ORDER Prior to July 7, 2014, entitlement to an initial compensable evaluation for service-connected bilateral hearing loss, is denied. From July 7, 2014, to May 23, 2019, entitlement to a 20 percent initial evaluation, but no higher, for service-connected bilateral hearing loss is granted, subject to the applicable regulations concerning the payment of monetary benefits. From May 24, 2019, to the present, entitlement to an initial evaluation in excess of 30 percent for service-connected bilateral hearing loss is denied. FINDINGS OF FACT 1. Prior to July 7, 2014, the Veteran’s service-connected bilateral hearing loss disability has not more nearly approximated the criteria for a compensable initial evaluation when mechanically applying the diagnostic criteria to the audiological testing results, and his complaint of difficulty hearing is contemplated by the rating schedule. 2. Resolving all reasonable doubt in the Veteran’s favor, from July 7, 2014, to May 23, 2019, the Veteran’s service-connected bilateral hearing loss disability most nearly approximates the criteria for a 20 percent initial evaluation, but no higher, when mechanically applying the diagnostic criteria to the audiological testing results, and his complaint of difficulty hearing is contemplated by the rating schedule; a rating in excess of 30 percent from May 24, 2019, has not been more nearly approximated. CONCLUSIONS OF LAW 1. Prior to July 7, 2014, the criteria for the assignment of a compensable initial for service-connected bilateral hearing loss are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.85, 4.86 Diagnostic Code 6100. 2. From July 7, 2014 to May 23, 2019, the criteria for the assignment of a 20 percent initial evaluation, but no higher, for service-connected bilateral hearing loss are met; the criteria for a rating in excess of 30 percent from May 24 , 2019, are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.85, 4.86 Diagnostic Code 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1966 to August 1986. While this service has been verified, the Board notes that the Veteran’s file is devoid of a DD Form 214 corresponding to the period of service from January 1966 to October 1984. This matter comes to the Board of Veterans' Appeals (Board) from a July 2010 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) of the Veterans Benefits Administration (VBA), which is the Agency of Original Jurisdiction (AOJ). The Veteran expressed timely disagreement with this determination, and the present appeal ensued. The Veteran’s appeal was previously before the Board in June 2018 and October 2019, when it was remanded for further evidentiary and procedural development. The Board’s prior remand directives have been substantially completed, and the appealed issue has been returned to the Board for further appellate consideration. In an August 2019 rating decision, the AOJ partially granted the Veteran’s appeal; the noncompensable initial evaluation assigned for his service-connected bilateral hearing loss was increased to 30 percent, effective from May 24, 2019. This represents a partial allowance of the benefits sought on appeal and results in a staged evaluation. As such, the issue remains in appellate status, and has been recharacterized as stated on the title page. See AB v. Brown, 6 Vet. App. 35, 38-39 (1993); Fenderson v. West, 12 Vet. App. 119 (1999). 1. Entitlement to an increased initial evaluation for service-connected bilateral hearing loss, currently evaluated noncompensably (zero percent) disabling prior to May 24, 2019, and 30 percent disabling, thereafter Disability evaluations are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The evaluations shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. The Veteran’s hearing loss disability is evaluated under the criteria of 38 C.F.R. § 4.85, Diagnostic Code 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 will be conducted without the use of hearing aids. 38 C.F.R. § 4.85(a). Evaluations of defective hearing are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered. See Lendenmann v. Principi, 3 Vet. App. 345 (1993). Hearing impairment is determined by averaging the hearing impairment at each of the four designated frequencies (1000, 2000, 3000, and 4000 Hertz). 38 C.F.R. § 4.85. This results in a Puretone Threshold Average for each ear. Id. The Puretone Threshold Average is charted, in conjunction with the Speech Discrimination Percentage for that ear, in Table VI of 38 C.F.R. § 4.85. Id. This results in a score, expressed as a Roman numeral, for each ear. Id. The Roman numeral scores for both ears are then charted in Table VII of 38 C.F.R. § 4.85, and the intersection of the scores provides the percentage of disability. Id. If impaired hearing is service-connected in only one ear, the non-service-connected ear will generally be assigned a Roman Numeral I. Id. Effective June 10, 1999, exceptional patterns of hearing impairment, which cannot always be accurately assessed under the standards of 38 C.F.R. § 4.85, may be evaluated under the provisions of 38 C.F.R. § 4.86. These provisions apply when either the puretone threshold at each of the four specified frequencies is 55 decibels or more, 38 C.F.R. § 4.86(a), or when the puretone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz, 38 C.F.R. § 4.86(b). If either of these provisions applies, each ear is evaluated separately. See 38 C.F.R. § 4.86. The Roman numeral designation for the ear with an exceptional pattern of hearing impairment is derived from Table VI or VIa, whichever results in the higher numeral. When 38 C.F.R. § 4.86(b) is applicable, the assigned numeral is elevated to the next higher Roman numeral. Id. Table VIa will also be applied when an examiner certifies that the use of the speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc. See 38 C.F.R. § 4.85(c). The rating schedule for evaluating hearing loss was purposely “designed to measure the best residual uncorrected hearing,” and evaluations are not to be determined based on the “best corrected hearing” as measured by “improvement with hearing aids.” See 38 C.F.R. § 4.85(a); 59 Fed. Reg. 17295; 64 Fed. Reg. 25200, 25204 (1999); see also Jones v. Shinseki, 26 Vet. App. 56, 63 (2012). 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Analysis The Veteran is seeking an increased initial evaluation for his service-connected bilateral hearing loss, which is currently evaluated noncompensably (zero percent) disabling prior to May 23, 2019, and 30 percent disabling, thereafter. The Board concludes that, resolving all reasonable doubt in the Veteran’s favor, the most probative evidence supports a partial grant of the benefits sought, as explained below. The Veteran initially filed a claim to establish service connection for bilateral hearing loss in August 2009. In connection with this claim, the AOJ provided him with a VA examination in December 2009, and audiometric testing showed relevant puretone thresholds, in decibels, as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 65 80 95 105 86.25 LEFT 25 45 75 80 56.25 On the basis of the numbers shown above, the Veteran’s pure tone threshold average for the right ear was recorded as 86.25 decibels. His pure tone threshold average for the left ear was recorded as 56.25 decibels. His speech recognition scores were 92 percent for the right ear and 96 percent for the left ear using the Maryland CNC speech recognition test. Applying 38 C.F.R. § 4.85, Table VI to the December 2009 VA audiological examination, the Veteran’s hearing loss disability results in Level III impairment in the right ear and Level I impairment in the left ear. Applying the criteria from Table VI to Table VII, based on the results of the December 2009 VA audiological examination findings, a noncompensable evaluation is derived from Table VII of 38 C.F.R. § 4.85 by intersecting row I with column III. As described above, the rating criteria also provides for rating exceptional patterns of hearing impairment under the provisions of 38 C.F.R. § 4.86. Here, puretone thresholds at each of the four specified frequencies were shown to be 55 decibels or more in the right ear, and therefore, consideration of an increased evaluation under 38 C.F.R. § 4.86(a) is warranted. Under these criteria, applying the puretone threshold averages for the right ear to Table Via results in Level VIII impairment. Applying the criteria from Table VIa to Table VII, based on the results of the December 2009 VA audiological examination findings, a noncompensable evaluation is derived from Table VII of 38 C.F.R. § 4.85 by intersecting row I with column VIII. The Board has also considered whether application of 38 C.F.R. § 4.86(b); however, puretone thresholds were not shown to be 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz. After service connection for bilateral hearing loss was established, VA issued hearing aids to the Veteran and undertook several audiology appointments to ensure proper calibration. This process included completing an audiometric evaluation in December 2010. For reasons unclear to the Board, the VA audiologist used the CIDW-22 test instead of the Maryland CNC, contrary to the controlling VA regulation, and stated that the results of the test (presumably due to the use of the improper test) were not adequate for rating purposes. Nonetheless, the Board observes that the results of the December 2010 audiogram were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 60 80 100 105 86.25 LEFT 20 45 80 80 56.25 On the basis of the numbers shown above, the Veteran’s puretone threshold averages were recorded as 86.25 decibels in the right ear and 56.25 decibels in the left ear – which are identical to the results of the December 2009 audiogram. Nonetheless, as stated above, the VA audiologist commented that the testing results were inadequate for rating purposes because the wrong test was performed. The Veteran initiated the current appeal in April 2011 and continued to report to VA audiology for minor adjustments of his hearing aids; however, the AOJ took no further action on the Veteran’s appeal for more than three years, when a June 2014 Statement of the Case was issued which continued to deny the benefits sought. In July 2014, the Veteran perfected his appeal to the Board, asserting that his service-connected bilateral hearing loss had worsened in severity since the December 2009 VA examination. In support of this contention, the Veteran submitted a VA audiogram performed on July 7, 2014; however, only the graphic representation of the audiogram was included in the record, with no numeric interpretation or Maryland CNC test results provided. Nevertheless, as the audiometric results were conveyed in straightforward graphs, the Board finds that it, as the finder of fact, can interpret the charts to determine the numeric values of the pure tone levels of adjudication purposes. See Kelly v. Brown, 7 Vet. App. 471 (1995). HERTZ 1000 2000 3000 4000 Average RIGHT 70 85 100 105 90 LEFT 25 60 75 75 58.75 On the basis of the numbers shown above, the Veteran’s puretone threshold averages were recorded as 90 decibels in the right ear and 58.75 decibels in the left ear – which confirms worsening of the Veteran’s service-connected disability since the December 2009 VA examination. Critically, the Board notes that this evaluation is also inadequate for VA rating purposes because no further testing, to include the Maryland CNC test, was performed, as per the governing regulation. Noting that the AOJ did not provide the Veteran a contemporary and adequate VA audiological examination since August 2009 despite evidence showing worsening the he service-connected disability, the Board remanded the Veteran’s appeal in June 2018. As a result, the Veteran was provided another VA examination in May 2019, and the report reflects the following audiometric findings: HERTZ 1000 2000 3000 4000 Average RIGHT 80 85 100 105+ 92.5 LEFT 30 65 75 90 65 On the basis of the numbers shown above, the Veteran’s puretone threshold average for the right ear was in fact 92.5 decibels, although this average is incorrectly calculated as 88.33 on the May 2019 VA examination report. His pure tone threshold average for the left ear was recorded as 65 decibels. His speech recognition scores were 70 percent for the right ear and 82 percent for the left ear using the Maryland CNC speech recognition test. Applying 38 C.F.R. § 4.85, Table VI to the May 2019 VA audiological examination, the Veteran’s hearing loss disability results in Level VII impairment in the right ear and Level IV impairment in the left ear. Applying the criteria from Table VI to Table VII, based on the results of the May 2019 VA audiological examination findings, a 20 percent evaluation is derived from Table VII of 38 C.F.R. § 4.85 by intersecting row IV with column VII. Again, puretone thresholds at each of the four specified frequencies were shown to be 55 decibels or more in the right ear, and therefore, consideration of an increased evaluation under 38 C.F.R. § 4.86(a) is warranted. Under these criteria, applying the puretone threshold averages for the right ear to Table Via results in Level IX impairment. Applying the criteria from Table VIa to Table VII, based on the results of the May 2019 VA audiological examination findings, a 30 percent evaluation is derived from Table VII of 38 C.F.R. § 4.85 by intersecting row IV with column IX. The Board has also considered whether application of 38 C.F.R. § 4.86(b); however, puretone thresholds were not shown to be 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz. Based on the above findings, the AOJ increased the initial evaluation assigned for this service-connected disability from zero percent to 30 percent, effective from May 24, 2019 – the date of the most recent VA examination. While noting that the criteria for a 30 percent initial evaluation were demonstrated at the May 2019 VA examination, the Board takes exception with the effective date assigned for this increase in the unique facts of this case. Specifically, as recounted above, there is evidence in the record showing that the severity of the Veteran’s service-connected bilateral hearing loss worsened as early as July 7, 2014. However, the Veteran was deprived of an opportunity to demonstrate the extent of this worsening for a period of five years due to the inadequacy of the testing provided by the July 2014 VA audiologist and the AOJ’s failure to fulfill the duty to assist the Veteran by providing him an adequate audiological assessment upon receiving evidence of this worsening prior to the initial certification of the Veteran’s appeal to the Board. To the above point, the Board notes that the December 2010 and July 2014 were both inadequate for the purpose of evaluating the Veteran’s service-connected disability due to the fault on the part of VA, and the criteria for a compensable initial evaluation may have been demonstrated if proper testing had been completed. Nonetheless, the portion of the testing that was completed in both instances did not show discernable worsening as of July 2014, as was specifically argued by the Veteran in his substantive appeal. In light of above, the Board will resolve all reasonable doubt in the Veteran’s favor in concluding that the criteria for a 20 percent initial evaluation were closely approximated on July 7, 2014, but no earlier. More specifically, assuming that there had been Maryland CNC scores similar to those obtained at the May 24, 2019, examination, the puretone threshold average of 90 would have corresponded to Level VIII under Table Via, which when considered with Level IV hearing in the left ear, would have resulted in a 20 percent rating. The Board recognizes the Veteran’s assertions regarding the impact of his bilateral hearing loss on his daily life, to include his statements to the December 2009 and May 2019 VA examiners and his VA treatment records showing his reports of difficulty understanding speech in connection with the calibration of his VA-issued hearing aids. Martinak v. Nicholson, 21 Vet. App. 447 (2007). However, the rating criteria for evaluating hearing loss contemplate the functional effects of decreased hearing and difficulty understanding speech in such everyday environments, as these are precisely the effects that VA’s audiometric tests are designed to measure. Thus, the effects described by the Veteran are contemplated by the schedular rating criteria, and referral for extraschedular consideration is not in order. 38 C.F.R. § 3.321 (b); Doucette v. Shulkin, 28 Vet. App. 366, 369 (2017). Therefore, in light of above, the Board is compelled to conclude that a compensable initial evaluation for service-connected bilateral hearing loss is not warranted prior to July 7, 2014, that a 20 percent initial evaluation, but no higher, is warranted from July 7, 2014, to May 23, 2019, and that a rating in excess of 30 percent is not warranted from May 24, 2019. This results in a partial allowance of the benefits sought in this matter. 38 U.S.C. § 5107 (b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert, 1 Vet. App. at 55-56. Finally, the Board does not find that this case raises a claim for TDIU based on his service-connected bilateral hearing loss disability. See Rice v. Shinseki, 22 Vet. App. 447, 454 (2009). The evidence does not show, nor does the Veteran claim, that he is unemployable due to this disability. Therefore, the Board finds that a claim for TDIU pursuant to the Court’s holding in Rice has not been raised by the record and no action is warranted. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Scott W. Dale, 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.