Citation Nr: 21003454 Decision Date: 01/21/21 Archive Date: 01/21/21 DOCKET NO. 16-26 129 DATE: January 21, 2021 ORDER A compensable rating for service-connected right ear hearing loss through July 4, 2016, is denied. A compensable rating for service-connected bilateral hearing loss (BHL) from July 5, 2016, to November 11, 2020, is denied. A rating higher than 10 percent for service-connected BHL beginning November 12, 2020, is denied. FINDINGS OF FACT 1. Through July 4, 2016, the Veteran’s auditory acuity level was I in his right ear. 2. From July 5, 2016, to November 11, 2020, the Veteran’s auditory acuity level was II in his right ear and II in his left ear. 3. Beginning November 12, 2020, the Veteran’s auditory acuity level was IV in his right ear and IV in his left ear. CONCLUSIONS OF LAW 1. The criteria for a compensable rating for service-connected right ear hearing loss through July 4, 2016, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.383, 3.385, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.85 and 4.86 Diagnostic Code 6100. 2. The criteria for a compensable rating for service-connected BHL from July 5, 2016, to November 11, 2020, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.85 and 4.86 Diagnostic Code 6100. 3. The criteria for a rating higher than 10 percent for service-connected BHL beginning November 12, 2020, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.85 and 4.86 Diagnostic Code 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1959 to July 1963. This matter is on appeal to the Board of Veterans’ Appeals (Board) from a March 2013 rating decision. In September 2018, the Veteran testified before the undersigned regarding it at a videoconference hearing. The Board remanded this matter for additional development in January 2019. Adjudication now can occur, since this development has been completed. Higher Ratings Ratings represent as far as practicably can be determined the average impairment in earning capacity due to a disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. A rating is assigned under the Rating Schedule by comparing the extent to which a disability impairs the ability to function under the ordinary conditions of daily life, as demonstrated by symptoms, with the criteria for that disability. Id.; 38 C.F.R. § 4.10; Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). The disability’s history and all other relevant evidence is to be considered. 38 C.F.R. §§ 4.1, 4.6. Examinations are to be interpreted and, if necessary, reconciled. 38 C.F.R. § 4.2. When two ratings may be applicable, the higher is assigned only if the criteria for it are more nearly approximated. 38 C.F.R. § 4.7. Any reasonable doubt on this or any other point is resolved in the claimant’s favor. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert, 1 Vet. App. at 53. Different ratings may be assigned for different periods. Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007); Francisco v. Brown, 7 Vet. App. 55, 58 (1994); Fenderson v. West, 12 Vet. App. 119, 126 (1999). When a disability worsened thus must be determined. R Ear Hearing Loss and BHL Hearing loss is addressed by Diagnostic Code 6100 of 38 C.F.R. §§ 4.85 and 4.86. Rating is based on a pure tone test in the frequencies of 1000, 2000, 3000 and 4000 cycles per second (hertz) and a Maryland CNC controlled speech discrimination test, taken without hearing aids. 38 C.F.R. § 4.85(a), (d). The pure tone threshold average and the speech discrimination percentage usually are used to derive the auditory acuity level for each ear from Table VI. 38 C.F.R. §§ 4.85(b). When using the speech discrimination percentage is not appropriate, this level is derived using only the pure tone threshold average from Table VIa. 38 C.F.R. § 4.85(c). An exceptional pattern of hearing loss exists when the pure tone threshold at 1000, 2000, 3000, and 4000 hertz is 55 decibels or more or when the pure tone threshold is 30 decibels or less at 1000 hertz and 70 decibels or more at 2000 hertz. 38 C.F.R. § 4.86. In either circumstance, the auditory acuity level for the exceptional ear is the higher of that derived from Table VI or Table VIa. Id. This level then is elevated to the next higher level when the pure tone threshold is 30 decibels or less at 1000 hertz and 70 decibels or more at 2000 hertz. 38 C.F.R. § 4.86(b). Based on the intersection point of the auditory acuity level for each ear, a rating is assigned using Table VII. 38 C.F.R. §§ 4.85(e). If hearing loss is service-connected in only one ear, the non-service-connected ear is assigned auditory acuity level I for purposes of determining a rating unde Table VII. 38 C.F.R. § 4.85(f). Compensation will be paid as if both ears are service-connected if the service-connected ear warrants a rating of 10 percent or more and the nonservice-connected ear manifests an impaired hearing disability. 38 C.F.R. § 3.383(a)(3). The Veteran’s service-connected right ear hearing loss currently is rated noncompensable through July 4, 2016. Effective July 5, 2016, he also became service-connected for left ear hearing loss. His disabilities were not combined into BHL at that time, however. They instead were rated separately for a number of years. In particular, the Veteran’s service-connected right ear hearing loss and his service-connected left ear hearing loss currently are assigned a noncompensable rating from July 5, 2016, to November 11, 2020. Effective November 12, 2020, his disabilities were combined into service-connected BHL. A 10 percent rating currently is in effect as of that date. This matter includes the period beginning on that date because that rating constitutes only a partial grant (even higher ratings are available). AB v. Brown, 6 Vet. App. 35, 38 (1993). The Veteran reported trouble hearing his wife and constantly finding himself saying, “what?” when talking with others upon VA medical examination in March 2013. His pure tone thresholds, in decibels, were as follows: Hertz 1000 2000 3000 4000 Right 15 20 40 45 His pure tone thresholds averaged 30 decibels in the right ear. Maryland CNC testing revealed speech discrimination of 94 percent in his right ear. VA treatment records reflect that the Veteran was issued bilateral hearing aids in June 2014. At his July 2014 VA medical examination, his pure tone thresholds, in decibels, were as follows: Hertz 1000 2000 3000 4000 Right 30 25 45 50 His pure tone thresholds averaged 38 decibels in the right ear. Maryland CNC testing revealed speech discrimination of 96 percent in his right ear. It was determined that the Veteran’s hearing loss had no functional impact. At his September 2018 hearing, the Veteran stated that it is hard for him to understand or distinguish words even with hearing aids if he cannot see the speaker’s face. He further stated that he says “what?” often which frustrates his wife and has to ask his soft-spoken young grandson to repeat himself over and over again. Finally, he noted that background noise can be overwhelming. He cannot hear the conversation if he goes out to dinner with friends, for example. He also cannot watch movies or television unless his hearing aids are on high and there are no distractions. The Veteran underwent a private medical examination in October 2018. He complained of significant difficulty hearing and discriminating conversations, especially in background noise and when the speaker is at a distance without visual cues. His pure tone thresholds were reported in graph form. Conversion into numeric form is proper when possible, however. Savage v. Shinseki, 24 Vet. App. 259, 269-70 (2011); Kelly v. Brown, 7 Vet. App. 471, 474 (1995). Here, the Board finds conversion is possible. The Veteran’s pure tone thresholds, in decibels, specifically were as follows: Hertz 1000 2000 3000 4000 Right 35 45 60 60 Left 35 55 65 65 His pure tone thresholds thus averaged 50 decibels in the right ear and 55 decibels in the left ear. Maryland CNC testing revealed speech discrimination of 84 percent in his right ear and 88 percent in his left ear. The Veteran reported trouble hearing and understanding when someone speaks, especially in background noise, as well as having to ask others to speak up or repeat themselves upon VA medical examination on November 12, 2020. He indicated that he prefers to be close to a speak, so he can read lips. He further indicates that he cannot hear those around him in a crowded environment. The Veteran’s pure tone thresholds, in decibels, were as follows: Hertz 1000 2000 3000 4000 Right 45 60 65 70 Left 40 55 65 65 His pure tone thresholds averaged 60 decibels in the right ear and 56 decibels in the left ear. Maryland CNC testing revealed speech discrimination of 80 percent in his right ear and 82 percent in his left ear. In addition to the aforementioned, VA treatment records document that the Veteran underwent assessments for his hearing loss in January 2017 and November 2018. Both assessments included pure tone testing. Both also included speech discrimination testing, but the former utilized the Central Institute for the Deaf Auditory Test W-22 (CID W-22) and the latter the Northwestern University Auditory Test Number 6 (NU No. 6) in the regard. Only the Maryland CNC test may be used for rating. As such, neither assessment is adequate for that purpose. That the Veteran’s pure tone threshold averages (55 in the right ear, 53 in the left ear in January 2017; 45 in both ears in November 2018) were similar to those obtained during adequate examinations nevertheless is notable. So are his January 2017 complaints of increased difficulty hearing his wife and the television and increasingly unclear speech. Ratings for hearing loss are derived mechanically from the auditory acuity level assigned based on pure tone threshold averages and/or speech discrimination percentages. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). There accordingly is very little judgment involved in assigning hearing loss ratings. Through July 4, 2016, it is reiterated that service connection was in effect only for right ear hearing loss. Neither the pure tone thresholds at the March 2013 VA medical examination nor those at the July 2014 VA medical examination represent an exceptional pattern of hearing loss in that ear. Its auditory acuity level thus will be derived from Table VI. Under it, the threshold averages and speech discrimination percentages from both exams correlate to Level I for the Veteran’s right ear. The intersection point of Level I for the Veteran’s right ear with the required assignment of Level I in his nonservice-connected left ear results in a noncompensable rating under Table VII. In other words, the Veteran’s service-connected right ear hearing loss did not independently merit a rating of 10 percent or more through July 4, 2016. Compensation therefore cannot be paid as if both ears are service-connected during this period, even though both of the aforementioned VA medical examinations showed an impaired hearing disability in the Veteran’s left ear. 38 C.F.R. § 3.385. From July 5, 216, to November 11, 2020, it is reiterated that right ear hearing loss and left ear hearing loss were separately service-connected. The above-cited applicable regulations require that these disabilities be combined and rated as service-connected BHL. Doing so now transforms this matter from one concerning right ear hearing loss into one concerning BHL. However, it does not result in increased compensation. The pure tone thresholds at the October 2018 private medical examination do not represent an exceptional pattern of hearing loss in either ear. Auditory acuity levels thus will be derived from Table VI. The threshold averages and speech discrimination percentages correlate to Level II for both of the Veteran’s ears under Table VI. Under Table VII, the intersection point of Level II for his right ear with Level II for his left ear results in a noncompensable rating for his BHL. This is the same rating currently assigned separately to both his right ear hearing loss and his left ear hearing loss. Beginning November 12, 2020, it is reiterated that the Veteran’s right ear hearing loss and left ear hearing loss were combined into service-connected BHL. The pure tone thresholds at the November 12, 2020, VA medical examination do not represent an exceptional pattern of hearing loss in either ear. Auditory acuity levels thus will be derived from Table VI. Under it, the threshold averages and speech discrimination percentages correlate to Level IV for both of the Veteran’s ears. The intersection point of Level IV for his right ear with Level IV for his left ear results in a 10 percent rating under Table VII. (Continued on the next page)   In sum, continuance of the currently assigned noncompensable rating for the Veteran’s service-connected right ear hearing loss through July 4, 2016, is supported by the medical evidence. Continuance of a noncompensable rating also is supported by the medical evidence from July 5, 2016, to November 11, 2020, whether his service-connected right ear hearing loss is separately rated from his service-connected left ear hearing loss or combined into service-connected BHL. Continuance of the currently assigned 10 percent rating for service-connected BHL beginning November 12, 2020, finally is supported by the medical evidence. With respect to non-medical evidence, the Veteran’s competency and credibility in reporting difficulty hearing and understanding speech is undisputed. That he repeatedly complained of these difficulties indeed is notable. All but one examination acknowledged his complaints, as required. Martinak v. Nicholson, 21 Vet. App. 447, 455-56 (2007). The method in which hearing tests are performed at VA medical examinations, and thus private medical examinations performed in the same manner, has been recognized as specifically designed to measure the functional effects of difficulty hearing and understanding speech. Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017). As such, these functional effects are contemplated by the rating criteria. Id. The rating criteria for a compensable rating for service-connected right ear hearing loss through July 4, 2016, and for service-connected BHL from July 5, 2016, to November 11, 2020, simply have not been met. Neither have those for a rating higher than 10 percent for service-connected BHL beginning November 12, 2020. It follows that a compensable rating for right ear hearing loss through July 4, 2016, and for BHL from July 5, 2016, to November 11, 2020, in conclusion, must be denied. So must a rating higher than 10 percent for BHL beginning November 12, 2020. Thomas H. O’Shay Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Becker 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.