Citation Nr: 21003197 Decision Date: 01/19/21 Archive Date: 01/19/21 DOCKET NO. 10-23 572 DATE: January 19, 2021 ORDER Entitlement to an initial compensable rating prior to September 4, 2019, and a disability rating higher than 10 percent since September 4, 2019, for bilateral hearing loss is denied. FINDINGS OF FACT 1. Audiological evidence demonstrates that for the period on appeal prior to September 4, 2019, the Veteran’s bilateral hearing loss was manifested by no worse than Level III hearing acuity in his right ear and Level III hearing acuity in his left ear, which corresponds to a noncompensable (zero percent) rating. 2. Audiological evidence demonstrated that for the period beginning September 4, 2019, the Veteran’s bilateral hearing loss has been manifested by no worse than Level IV hearing acuity in his right ear and Level IV hearing acuity in his left ear, which corresponds to a 10 percent rating. CONCLUSIONS OF LAW 1. Prior to September 4, 2019, the criteria for an initial compensable rating for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.6, 4.7, 4.85, 4.86, Diagnostic Code 6100. 2. From September 4, 2019, the criteria for a disability rating in excess of 10 percent for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.6, 4.7, 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from September 1966 until his honorable discharge in June 1970, including service in the Republic of Vietnam. The Board thanks the Veteran for his service to our country. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2009 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO), which denied service connection for bilateral hearing loss. During the course of the Veteran’s appeal, the RO, in a March 2012 rating decision, granted service connection for bilateral hearing loss with a noncompensable (zero percent) rating effective September 29, 2008. In June 2020, the Board remanded the Veteran’s claim to the Agency of Original Jurisdiction (AOJ) to obtain and associate with the file the April 2015 private hearing test and September 2019 VA hearing test. The Board finds there has been substantial compliance with its remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). While the case was in remand status, in an October 2020 rating decision, the RO increased the rating of the Veteran’s service-connected bilateral hearing loss to 10 percent, effective September 4, 2019. 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. See A.B. v. Brown, 6 Vet. App. 35, 39 (1993). Entitlement to an increased rating for bilateral hearing loss, rated as noncompensable (zero percent) from September 29, 2008 to September 4, 2019, and as 10 percent disabling thereafter. Disability evaluations are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R., Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from disease and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, when an appeal is based on the assigment of an initial rating for a disability, following an initial award of service connection for this disability, the rule articulated in Francisco does not apply. Fenderson v. West, 12 Vet. App. 119 (1999). Staged ratings are appropriate for an increased-rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran’s service-connected bilateral hearing loss disability has been assigned an initial noncompensable (zero percent) rating from September 29, 2008, and a 10 percent disability rating from September 4, 2019. Because the Veteran’s bilateral hearing loss manifests symptoms warranting different ratings for distinct time periods, staged ratings have been assigned. VA evaluates hearing impairment under the General Rating Formula for Impairment of Auditory Acuity provided in 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100. Evaluations for defective hearing range from noncompensable (zero percent) to 100 percent based on organic impairment of hearing acuity, as measured by the results of speech discrimination tests, together with the average hearing threshold levels as measured by puretone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hertz (Hz)). To evaluate the degree of disability for service-connected hearing loss, the Rating Schedule establishes eleven auditory acuity levels, designated from Level I for essentially normal acuity through Level XI for profound deafness. 38 C.F.R. § 4.85. Examinations are conducted without the use of hearing aids. 38 C.F.R. § 4.85(a). 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. See Bruce v. West, 11 Vet. App. 405, 409 (1998); Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). In certain circumstances, when decibel levels at all frequencies are especially elevated or there is a large difference in levels between lower frequencies, exceptional patterns of hearing loss are found, and special evaluation rules may be applied; such is not the case here. 38 C.F.R. § 4.86. 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 Test) and a puretone audiometry test. 38 C.F.R. § 4.85. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In January 2014, the Veteran disagreed with the noncompensable (zero percent) rating assigned for his bilateral hearing loss. The RO, in an October 2020 rating decision, increased the rating of the service-connected bilateral hearing loss to 10 percent, effective September 4, 2019. The Board has considered the Veteran’s statements and the audiological examination reports dated February 2006, April 2015, September 2019, and October 2020. The Board finds entitlement to a compensable rating prior to September 4, 2019, or to a rating in excess of 10 percent from September 4, 2019, is not warranted. Turning to the evidence of record, in February 2006, the Veteran was afforded a VA audiological examination. The examiner noted the Veteran’s hearing acuity in puretone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 30 50 60 60 LEFT 25 35 40 45 60 The average puretone threshold was 50 in the right ear and 45 in the left ear. Speech audiometry revealed speech recognition ability of 96 percent in the right ear, and 96 percent in the left ear. Under Table VI Numeric Designation of Hearing Impairment Based on Puretone Threshold Average and Speech Discrimination (Table VI) the February 2006 results yield numeric hearing impairment designation of Level I in the right ear, and Level I in the left ear. Intersection of the two levels is consistent with a noncompensable (zero percent) rating. 38 C.F.R. § 4.85, Table VII Percentage Evaluation For Hearing Impairment (Diagnostic Code 6100) (Table VII). In accordance with the June 2020 Board remand decision, the April 2015 private audiological report has been made part of the claims file. The examiner noted the Veteran’s hearing acuity in puretone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 35 35 55 60 70 LEFT 30 35 45 60 65 The average puretone threshold was 55 decibels in the right ear and 51.25 decibels in the left. A September 2020 QTC examiner reviewed the April 2015 audiological report. The examiner stated the speech recognition score is 100 percent in both ears with a presentation level of 35 decibels above speech reception threshold (SRT). SRT was 45 decibels in each ear, and presentation level was 75 decibels in each ear. The examiner stated the audiogram does not reveal which word list was used, so the examiner was unable to determine if it was the Maryland CNC. As a result, Table VIa must be used to obtain a numeric designation of hearing impairment for each ear based only on puretone threshold averages. Nonetheless, those results do not support the assignment of any higher rating. Under Table VIa Numeric Designation Of Hearing Impairment Based Only On Puretone Threshold Average (Table VIa) the April 2015 results yield numeric hearing impairment designation of Level III in the right ear, and Level III in the left ear. Intersection of the two levels is consistent with a noncompensable (zero percent) rating. 38 C.F.R. § 4.85, Table VII. In accordance with the June 2020 Board remand decision, the September 2019 VA clinic audiological evaluation has been made part of the claims file. In September 2019, the Veteran presented to a VA clinic for an audiological evaluation. The Board notes the September 2019 audiometric results were in the form of an audiometric chart, as opposed to a table. However, the process of reading the raw data from the chart used to report it requires no specialized medical training or knowledge; no interpretation is needed to transcribe the numbers from one form to another. In the role as fact finder, the Board has reviewed the graphical findings of the September 2019 audiological report and determined puretone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 45 45 70 65 65 LEFT 35 40 55 65 65 The average puretone threshold was 61.25 decibels in the right ear and 56.25 decibels in the left. The Board notes the audiologist used the CID W-22 word list to perform speech discrimination testing rather than the Maryland CNC word list, as required for rating purposes. Therefore, Table VIa has been used to obtain a numeric designation of hearing impairment for each ear based on puretone threshold averages. Under Table VIa, the September 2019 results yield numeric hearing impairment designation of Level IV in the right ear, and Level IV in the left ear. Intersection of the two levels is consistent with a 10 percent rating. 38 C.F.R. § 4.85, Table VII. The Veteran was provided with another VA audiological examination in January 2020. The examiner noted the Veteran’s hearing acuity in puretone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 35 35 50 60 55 LEFT 40 40 55 60 60 The average puretone threshold was 50 decibels in the right ear and 53.75 decibels in the left. Speech audiometry revealed speech recognition ability of 90 percent in the right ear and 96 percent in the left ear. The examiner stated these test results were valid for rating purposes and the use of a speech discrimination score (Maryland CNC Test) was appropriate for the Veteran. The examiner diagnosed bilateral sensorineural hearing loss in the frequency range of 500-4000 Hz. The examiner addressed functional impact of the Veteran’s disability, noting the Veteran reports difficulty with pronunciation and understanding, and maintaining attention to conversation. Under Table VI, the January 2020 results yield numeric hearing impairment designation of Level II in the right ear, and Level I in the left ear. Intersection of the two levels is consistent with a noncompensable (zero percent) rating. 38 C.F.R. § 4.85, Table VII. There is no competent evidence of the presence of exceptional patterns of hearing loss, so a rating pursuant to 38 C.F.R. § 4.86 is not warranted. In Doucette v. Shulkin, 28 Vet. App. 366 (2017), the Court held the rating criteria for hearing loss “contemplate the functional effects of decreased hearing and difficulty understanding speech in an everyday work environment, as these are precisely the effects that VA’s audiometric tests are designed to measure. Thus, when a Veteran’s hearing loss results in an inability to hear or understand speech or to hear other sounds in various contexts, those effects are contemplated by the schedular rating criteria.” Id. at 369. The Board has considered the Veteran’s lay statements concerning his hearing loss. The Veteran is competent to report his symptoms. Layno v. Brown, 6 Vet. App. 465 (1994). However, the Board finds the objective measurements of hearing require specialized testing, and they fall outside the realm of common knowledge of a layperson and the Veteran is, thus, not competent to provide evidence on the issue of severity. See Jandreau v. Nicholson, 492 F.3d 1372, 1377; Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). As such, the audiological examinations are more probative than the Veteran’s subjective complaints of increased symptomatology. The Board acknowledges the difficulties the Veteran experiences as a result of his hearing loss. However, as explained above, the assignment of disability ratings for hearing impairment is derived by a mechanical application of the Rating Schedule to the numeric designation assigned after audiometry results are obtained. As such, the Board must predicate its determination on the basis of the audiological examination results of record. See Lendernmann, 3 Vet. App. 345. Accordingly, the Board is bound by law to apply the VA’s Rating Schedule based on the Veteran’s audiometry results. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. (Continued on the next page) The Board is appreciative of the Veteran’s faithful and honorable service to our country. However, because the preponderance of the evidence weighs against a compensable rating prior to September 4, 2019, and a rating higher than 10 percent thereafter, the benefit of the doubt doctrine is not for application, and the Veteran’s appeal must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.85, 4.86; Gilbert, 1 Vet. App. 49. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Grace Johnk, 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.