Citation Nr: 21004545 Decision Date: 01/27/21 Archive Date: 01/27/21 DOCKET NO. 17-40 383 DATE: January 27, 2021 ORDER Entitlement to a compensable rating for bilateral hearing loss prior to August 25, 2020 is denied. After August 25, 2020, entitlement to a rating in excess of 40 percent for bilateral hearing loss is denied. FINDINGS OF FACT 1. Prior to August 25, 2020, the Veteran’s bilateral hearing loss has been manifested by hearing acuity of no worse than Level II in the right ear and no worse than Level IV in the left ear. 2. After August 25, 2020, the Veteran’s bilateral hearing loss has not been manifested by the hearing acuity levels required for entitlement to a rating in excess of 40 percent. CONCLUSIONS OF LAW 1. The criteria for a compensable rating for bilateral hearing loss prior to August 25, 2020 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100. 2. The criteria for a rating in excess of 40 percent for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 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 Army from October 1961 to October 1963. This appeal comes before the Board of Veterans’ Appeals (Board) from a June 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In August 2017, the Veteran testified at a video conference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is available in the record. This matter was previously remanded in September 2020 for further development, to include requesting the Agency of Original Jurisdiction (AOJ) to obtain a new VA examination documenting the severity of the Veteran’s bilateral hearing loss. The examination was obtained; therefore, the Board finds that its remand instructions were substantially complied with. Stegall v. West, 11 Vet. App. 268 (1998). In the January 2021 Informal Hearing Presentation, the Veteran’s representative argued that the severity of condition on appeal has been underrated and warrants reconsideration for higher rating. The representative stated that the Veteran’s bilateral hearing loss condition is more severe than current rating suggests and getting worse. The Veteran’s statements should be given greater consideration relative to his experience and observations pertaining to the BHL issue on appeal. The representative argued that if a grant is not forthcoming at this time, then a remand is requested to obtain further medical opinion regarding the severity of symptoms. The Board finds that the evidence of record is adequate to adjudicate the claim and remand for further examination is not warranted. In a November 2020 statement the Veteran indicated that he was happy with the 40 percent rating assigned and was just appealing the length of time of the award. The Veteran did not indicate a worsening of the condition since the most recent examination in October 2020. Therefore the Board finds that remand for further examination regarding the severity of bilateral hearing loss is not warranted. 1. Entitlement to a compensable rating for bilateral hearing loss prior to August 25, 2020 is denied. The Veteran contends that his service-connected bilateral hearing loss is more severe than presently evaluated, and productive of a greater degree of impairment than is reflected by the disability rating currently assigned. Disability ratings are determined by the application of the VA’s Schedule for Rating Disabilities. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § Part 4. Ratings for service-connected disabilities are determined by comparing the Veteran’s symptoms with criteria listed in VA’s Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. In evaluating the extent of hearing loss, disability ratings are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are performed. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Hearing loss ratings range from noncompensable to 100 percent based on organic impairment of hearing acuity, as measured by controlled speech discrimination tests in conjunction with average hearing thresholds determined by puretone audiometric testing at frequencies of 1000, 2000, 3000 and 4000 cycles per second. “Puretone threshold average” 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 §4.86) to determine the Roman numeral designation for hearing impairment from Table VI or VIa. 38 C.F.R. § 4.85, Diagnostic Code 6100. The rating schedule establishes eleven auditory acuity levels, designated from Level I for essentially normal hearing acuity, through Level XI for profound deafness. 38 C.F.R. § 4.85. The horizontal rows in Table VI (in 38 C.F.R. § 4.85) represent nine categories of the percentage of discrimination based on the controlled speech discrimination test. The vertical columns in Table VI represent nine categories of decibel loss based on the puretone audiometry test. The Roman numeral designation is located at the point where the percentage of speech discrimination and puretone threshold average intersect. See 38 C.F.R. §§ 4.85, 4.86. The regulations also provide that in cases of exceptional hearing loss, i.e. when the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more, the Roman numeral designation will be determined for hearing impairment, separately, from either Table VI or Table VIa, whichever results in the higher numeral. 38 C.F.R. § 4.86. A Roman numeral designation will also be determined from either Table VI or Table VIa, whichever results in the higher numeral, when the puretone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz. That numeral will then be elevated to the next higher Roman numeral. The Veteran’s entire history is reviewed when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where, as here, the question for consideration is the propriety of the initial evaluation assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of “staged rating” is required. Fenderson v. West, 12 Vet. App. 119, 126 (1999). After a review of all the evidence, lay and medical, the Board finds that a compensable disability rating prior to August 25, 2020 is not warranted for bilateral hearing loss. The Veteran submitted a private audiological evaluation from August 2014. The results of the August 2014 audiological examination, as measured by a puretone audiometry test, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 15 20 25 35 LEFT 25 20 15 25 35 No Maryland CNC test was performed. The puretone threshold average, after rounding to the nearest whole number, was 24 decibels in the right ear and 24 decibels in the left ear. Based on the evidence outlined above, when the Level I designation for the right ear and Level I designation for the left ear are mechanically applied to Table VII, the result is a noncompensable rating. 38 C.F.R. § 4.85; Lendenmann, 3 Vet. App. 345. None of the results reported in the August 2014 audiological evaluation meet the requirements for evaluation based on an exceptional pattern of impairment. The Veteran submitted another private audiological evaluation from March 2015. The results of the March 2015 audiological examination, as measured by a puretone audiometry test, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 25 30 30 35 LEFT 30 25 25 30 35 No Maryland CNC test was performed. The puretone threshold average, after rounding to the nearest whole number, was 30 decibels in the right ear and 29 decibels in the left ear. Based on the evidence outlined above, when the Level I designation for the right ear and Level I designation for the left ear are mechanically applied to Table VII, the result is a noncompensable rating. 38 C.F.R. § 4.85; Lendenmann, 3 Vet. App. 345. None of the results reported in the March 2015 audiological evaluation meet the requirements for evaluation based on an exceptional pattern of impairment. The Veteran was afforded a VA examination in June 2015. The results of the June 2015 audiological examination, as measured by a puretone audiometry test, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 30 30 35 40 45 LEFT 40 30 35 35 40 The puretone threshold average, after rounding to the nearest whole number, was 38 decibels in the right ear and 35 decibels in the left ear. Speech audiometry using the Maryland CNC word list revealed initial speech recognition ability of 88 percent in the right ear and 88 percent in the left ear. Based on the evidence outlined above, when the Level II designation for the right ear and Level II designation for the left ear are mechanically applied to Table VII, the result is a noncompensable rating. 38 C.F.R. § 4.85; Lendenmann, 3 Vet. App. 345. None of the results reported in the June 2015 VA examination meet the requirements for evaluation based on an exceptional pattern of impairment. The Veteran also submitted a private audiological examination from June 2015. There was no Maryland CNC test conducted. The results were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 30 30 35 40 45 LEFT 40 30 35 35 40 The puretone threshold average was 35 dB in the left ear, and 38 dB in the right ear. Applying the results to Table VIA, the findings yield a numeric designation of Level I in the right ear and Level I in the left ear. Entering the resulting bilateral numeric designation of Level I for the right ear and Level I for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a noncompensable disability rating under Diagnostic Code 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. An April 2017 VA examination indicated the severity of the Veteran’s hearing loss could not be tested. In addition, an April 2017 private audiological examination was blank and did not contain test results. The Veteran submitted a May 2018 private audiological examination. The results of the May 2018 audiological examination, as measured by a puretone audiometry test, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 35 35 35 40 45 LEFT 35 35 25 45 35 No Maryland CNC test was performed. The puretone threshold average, after rounding to the nearest whole number, was 39 decibels in the right ear and 35 decibels in the left ear. Based on the evidence outlined above, when the Level I designation for the right ear and Level I designation for the left ear are mechanically applied to Table VII, the result is a noncompensable rating. 38 C.F.R. § 4.85; Lendenmann, 3 Vet. App. 345. None of the results reported in the May 2018 audiological evaluation meet the requirements for evaluation based on an exceptional pattern of impairment. The Veteran was afforded a VA examination in May 2018. The results of the May 2018 audiological examination, as measured by a puretone audiometry test, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 35 35 35 40 45 LEFT 35 35 25 45 35 The puretone threshold average, after rounding to the nearest whole number, was 39 decibels in the right ear and 35 decibels in the left ear. Speech audiometry using the Maryland CNC word list revealed initial speech recognition ability of 84 percent in the right ear and 80 percent in the left ear. Based on the evidence outlined above, when the Level II designation for the right ear and Level III designation for the left ear are mechanically applied to Table VII, the result is a noncompensable rating. 38 C.F.R. § 4.85; Lendenmann, 3 Vet. App. 345. None of the results reported in the June 2015 audiological evaluation meet the requirements for evaluation based on an exceptional pattern of impairment. The Veteran underwent a VA examination in December 2019. The results of the December 2019 audiological examination, as measured by a puretone audiometry test, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 40 45 45 50 55 LEFT 40 50 50 55 55 The puretone threshold average, after rounding to the nearest whole number, was 49 decibels in the right ear and 53 decibels in the left ear. Speech audiometry using the Maryland CNC word list revealed initial speech recognition ability of 84 percent in the right ear and 82 percent in the left ear. Based on the evidence outlined above, when the Level II designation for the right ear and Level IV designation for the left ear are mechanically applied to Table VII, the result is a noncompensable rating. 38 C.F.R. § 4.85; Lendenmann, 3 Vet. App. 345. None of the results reported in the December 2019 audiological evaluation meet the requirements for evaluation based on an exceptional pattern of impairment. The Board has considered the Veteran’s lay statements, in which he generally contends that his hearing is worse than currently rated and does not doubt that he experiences a degree of decreased hearing. However, as was indicated above, rating a hearing loss disability involves the mechanical application of rating criteria to the results of specified audiometric studies. Here, the objective medical evidence of record consists of the private August 2014, private March 2015, VA June 2015, private June 2015, private May 2018, VA May 2018, and VA December 2019 examinations, which show that the Veteran’s hearing loss does not rise to the level of a compensable rating. See 38 C.F.R. § 4.85. For these reasons, the Veteran’s claim for a compensable rating prior to August 25, 2020 for bilateral hearing loss is denied. 2. After August 25, 2020, entitlement to a rating in excess of 40 percent for bilateral hearing loss is denied. During the pendency of the claim, an October 2020 rating decision increased the rating for the Veteran’s bilateral hearing loss to 40 percent disabling effective on August 25, 2020. Subsequently, the Veteran submitted a VA Form 10182 Notice of Disagreement in November 2020 as to the effective date of the assigned 40 percent rating in the October 2020 rating decision and did not indicate that any issue was being withdrawn from the legacy process by opting in to the modernized review system (AMA), which applies to all claims for which VA issues notice of an initial decision on or after February 19, 2019. See 38 C.F.R. §§ 3.2400, 19.2. Therefore, the Board will issue a decision as to the issue of a rating in excess of 40 percent from August 25, 2020 in the legacy appeals system. The issue of the claim for an earlier effective date for the grant of the 40 percent rating for bilateral hearing loss will be the subject of a separate Board decision which is docketed as a AMA appeal. The Veteran submitted an August 2020 private audiological examination. The results of the August 2020 audiological examination, as measured by a puretone audiometry test, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 90 80 105 115 120 LEFT 110 110 115 120 120 The puretone threshold average, after rounding to the nearest whole number, was 105 decibels in the right ear and 116 decibels in the left ear. Speech audiometry using the Maryland CNC word list revealed initial speech recognition ability of 50 percent in the right ear and 50 percent in the left ear. Both ears showed an exceptional pattern of hearing loss disability, as all pure tone thresholds were in excess of 55 decibels. The hearing level is therefore taken from Table VIa, as that is more advantageous to the Veteran. Intersection of XI and XI levels in Table VII of 38 C.F.R. § 4.85 shows entitlement to a 100 percent rating. The Veteran also underwent a VA examination in October 2020. The results of the October 2020 audiological examination, as measured by a puretone audiometry test, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 35 35 45 50 50 LEFT 35 35 35 50 45 The puretone threshold average, after rounding to the nearest whole number, was 45 decibels in the right ear and 41 decibels in the left ear. Speech audiometry using the Maryland CNC word list revealed initial speech recognition ability of 48 percent in the right ear and 40 percent in the left ear. The VA examiner indicated that the use of the word recognition scores for the right and left ear was not appropriate for the Veteran or valid for rating purposes as they are not considered in agreement with his puretone averages. See October 2020 VA Examination. Based on the evidence outlined above, when the Level II designation for the right ear and Level I designation for the left ear are mechanically applied to Table VII, the result is a noncompensable rating. 38 C.F.R. § 4.85; Lendenmann, 3 Vet. App. 345. Based on the evidence of record, the Board finds August 2020 private audiological examination is inconsistent with the preponderance of the medical evidence and gives more weight to the subsequent VA examination from October 2020. All other VA and private audiological examinations of record show the severity of the Veteran’s hearing loss increasing, but nonetheless resulting in a noncompensable rating. The Veteran’s hearing acuity in all other examinations was no greater than Level II in the right ear and Level IV in the left, including the most recent VA examination with Level II for the right ear and Level I for the left ear. However, the Board will resolve doubt in the Veteran’s favor and not disturb the 40 percent rating assigned by the RO. The October 2020 VA examiner considered all evidence of record including the August 2020 private audiological examination and determined the Veteran’s word recognitions scores were not considered valid for rating purposes as they were not in agreement with the puretone averages. As such, the Board gives the October 2020 VA examination more weight and finds entitlement to a rating in excess of 40 percent is not warranted. The claim for a rating in excess of 40 percent for bilateral hearing loss on or after August 25, 2020 is denied. K. J. ALIBRANDO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Holcombe, 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.