Citation Nr: 21003185 Decision Date: 01/19/21 Archive Date: 01/19/21 DOCKET NO. 16-33 679 DATE: January 19, 2021 ORDER Entitlement to an initial compensable rating for the service-connected bilateral hearing loss for the period on appeal prior to November 09, 2020, is denied. Entitlement to an increased disability rating in excess of 70 percent for the service-connected bilateral hearing loss for the period on appeal from November 09, 2020 onward, is denied. FINDINGS OF FACT 1. For the period on appeal prior to November 09, 2020, the Veteran demonstrated hearing acuity corresponding to Level I for the right ear and Level VI for the left year. 2. For the period on appeal from November 09, 2020 onward, the Veteran demonstrated hearing acuity corresponding to Level VIII for the right ear and Level XI for the left ear. CONCLUSIONS OF LAW 1. The criteria for the assignment of an initial compensable disability rating for the service-connected bilateral hearing loss, prior to November 09, 2020 have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1, 4.3, 4.85, 4.86, Diagnostic Code (DC) 6100. 2. From November 09, 2020 onward, the criteria for the assignment of a disability rating in excess of 70 percent for the service-connected bilateral hearing loss have not been. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1, 4.3, 4.85, 4.86, DC 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from November 1962 to May 1964. This case is before the Board of Veterans’ Appeals (Board) on appeal from a January 2014 Department of Veterans Affairs (VA) Regional Office (RO) rating decision. In that rating decision, the RO granted service connection for bilateral hearing loss and assigned an initial noncompensable rating, effective from May 30, 2013. The Veteran’s notice of disagreement (NOD) was received in June 2014. The RO issued a statement of the case (SOC) in April 2016. The Veteran’s VA Form 9, substantive appeal to the Board, was received in June 2016. In July 2019, the Veteran testified at a Board hearing (video conference) hearing before the undersigned Veterans Law Judge. A transcript of the testimony is associated with the claims file. In October 2019 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 November 2020 granting an increased rating for the service-connected bilateral hearing loss to 70%, effective from November 9, 2020. As this increase does not represent a full grant of benefits sought on appeal, the claim for an increased disability rating for the service-connected bilateral hearing loss remains pending before the Board. A.B. v. Brown, 6 Vet. App., 35, 39 (1993) (the claimant is presumed to be seeking the highest possible rating for a disability unless he or she expressly indicates otherwise). Entitlement to an initial compensable disability rating for the service-connected bilateral hearing loss prior to November 09, 2020, and in excess of 70 percent thereafter The Veteran contends that his hearing loss warrants a higher rating. 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). Where, as here, 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. 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). Disability ratings for service-connected hearing loss 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)). Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992) (defective hearing is rated on the basis of a mere mechanical application of the rating criteria). See also Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). 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. 38 C.F.R. § 4.85(a). Examinations will be conducted without the use of hearing aids. Id. The provisions of 38 C.F.R. § 4.85, Table VI establish eleven auditory acuity levels represented by Roman numeral designations from I to XI based on a combination of puretone threshold average (vertical columns) and speech discrimination scores (horizontal rows). The Roman numeral designation is located at the point where the percentage of speech discrimination and puretone threshold average intersect. 38 C.F.R. § 4.85(b). Table VIa provides numeric designation of hearing impairment based only on puretone threshold average, and is used when the examiner certifies that use of the speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc., or when indicated under the provisions of 38 C.F.R. § 4.86. See 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, divided by four. This average is used in all cases (including those in 38 C.F.R. § 4.86) to determine the Roman numeral designation for hearing impairment from Table VI or VIa. 38 C.F.R. § 4.85(d). Table VII under 38 C.F.R. § 4.85, is used to determine the percentage evaluation (disability rating to be assigned) 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 poorer hearing. The percentage evaluation is located at the point where the row and column intersect. 38 C.F.R. § 4.85(e). 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). Cases involving exceptional patterns of hearing impairment are addressed under 38 C.F.R. § 4.86. 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’s service-connected bilateral hearing loss disability has been assigned an initial noncompensable disability rating from May 30, 2013, and a 70 percent disability rating from November 09, 2020. Because the Veteran’s bilateral hearing loss manifests symptoms that warrant different ratings for distinct time periods, staged ratings have been assigned. In January 2014, the Veteran underwent a VA examination for his claim. On the authorized audiological evaluation, puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 25 15 35 60 LEFT 40 45 80 75 75 The puretone average (of 1000, 2000, 3000 & 4000 Hz) was 33.75 in the right ear and 68.75 in the left ear. Speech audiometry revealed speech recognition ability of 100 percent in the right ear and of 64 percent in the left ear. Applying the criteria set forth in 38 C.F.R. § 4.85 to these audiometric results yields a Roman numeral I for the right ear based on Table VI; and a Roman numeral VI for the left ear, based on Table VI. When these figures are applied to Table VII, the result is a noncompensable disability rating. The VA examiner noted no functional impact of hearing loss on the Veteran’s occupational functioning and daily activities. During a July 2019 Hearing, the Veteran testified that his hearing has worsened since his January 2014 VA exam. Specifically, the Veteran asserts that he must now look at people when they speak to him in order to read their lips; he rarely speaks over the phone because he cannot see their lips and therefore cannot understand the words spoken to him. In November 2020, the Veteran underwent a VA examination for his claim. On the authorized audiological evaluation, puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 55 55 50 60 80 LEFT 65 80 85 95 90 The puretone average (of 1000, 2000, 3000 & 4000 Hz) was 61.25 in the right ear and 87.5 in the left ear. Speech audiometry revealed speech recognition ability of 48 percent in the right ear and of 0 percent in the left ear. Applying the criteria set forth in 38 C.F.R. § 4.85 to these audiometric results yields a Roman numeral VIII for the right ear and a Roman numeral XI for the left ear, based on Table VI. A combination of VIII and XI equates to a 70 percent disability rating according to Table VII. The VA examiner addressed functional impact of the Veteran’s disability. With respect to functional impact, the Veteran reported having to ask people to repeat themselves or speak louder, he feels alone at times, and that he learned to lip read. Additionally, the results of the left ear show an exceptional pattern of hearing impairment. The pure tone threshold at each of the four specified frequencies is 55 decibels or higher. As such, the Board must determine the Roman numeral designation for hearing impairment from Table VI and Table VIa, and use whichever Table results in the higher numeral. Applying the criteria set forth in 38 C.F.R. § 4.86 to these audiometric results yields a Roman numeral IV for the right ear and a Roman numeral VIII for the left ear, based on Table VIa. A combination of IV and VIII equates to a 20 percent disability rating according to Table VII. Therefore, the use of Table VI, rather than Table VIa, results in a higher Roman numeral, which, in turn, results in a higher overall disability rating of 70 percent. Upon review of the evidence, for the period on appeal prior to November 09, 2020, the Board finds that a compensable rating for bilateral hearing loss is not warranted. The VA examination in January 2014 reflects no worse hearing than Level I hearing acuity for the right ear and Level VI for the left ear. The assignment of disability evaluations for hearing impairment is a mechanical application of the rating criteria from which the Board cannot deviate. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). The Board has considered the fact that the Veteran contends that his hearing loss disability warrants a compensable rating. However, the Board is bound in its decisions by the VA regulations governing the rating of hearing loss. Rating hearing loss requires the use of the Maryland CNC speech discrimination test and the puretone threshold average determined by an audiometry test. Application of the schedule to the facts of this case shows that a compensable rating is not warranted prior to November 09, 2020. Functional impairment due to hearing loss that is compounded by background or environmental noise is a disability picture that is considered in the current schedular rating criteria. As observed above, this exercise is a mechanical one, with no interpretative leeway. Lendenmann at 349. Additionally, there is no probative evidence prior to November 2020 showing that the Veteran met the criteria for a compensable rating. While the Veteran contends that the results of the 2014 VA examination did not illustrate the severity of his disability, there are no other valid audiogram results to support these contentions or to compare with the 2014 findings. As such, the preponderance of the evidence is against the assignment of a compensable rating for service-connected bilateral hearing loss prior to November 09, 2020. As the preponderance of the evidence is against any increase, the benefit of the doubt rule is not applicable in this situation. 38 U.S.C. § 5107 (b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). Accordingly, an initial compensable disability rating for the service-connected bilateral hearing loss is not warranted for the period on appeal prior to November 09, 2020. For the period on appeal commencing November 09, 2020, an assigment of higher than 70 percent disability rating is not warranted. As noted above, pursuant to the November 2020 VA examination report, the Veteran’s right ear puretone threshold average was 61.25 and his right ear speech discrimination was 48 percent. This equates to a Level VIII hearing impairment pursuant to Table VI. The Veteran’s left ear puretone threshold average was 87.5 and his left ear speech discrimination was 0 percent. This equates to a Level XI hearing impairment for the left ear under Table VI. Based on these scores, the Veteran’s bilateral hearing loss warrants a 70 percent evaluation from November 09, 2020, pursuant to DC 6100 Table VII. (Continued on the next page)   The Board has considered the lay statements of record, the Veteran’s statements, and the sworn testimony before the Board concerning the severity of his hearing loss disability. Although the Board finds the statements and sworn testimony to be credible, those factors do not provide sufficient evidence on which to assign any higher rating for bilateral hearing loss under the rating criteria. Disability ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). In this case, as explained above, the numeric designations correlate to no greater than a rating of 70 percent from November 09, 2020. As such, the preponderance of the evidence is against an increase, the benefit of the doubt rule is not applicable in this situation. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). Accordingly, entitlement to an increased disability rating in excess of 70 percent for the service-connected bilateral hearing loss from November 09, 2020 onward, is not warranted. L. B. CRYAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Ardalan, 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.