Citation Nr: 21004623 Decision Date: 01/27/21 Archive Date: 01/27/21 DOCKET NO. 17-26 195 DATE: January 27, 2021 ORDER Entitlement to a compensable rating for bilateral hearing loss disability prior to July 29, 2019 is denied. Entitlement to a rating in excess of 10 percent for bilateral hearing loss disability from July 29, 2019 is denied. FINDINGS OF FACT 1. The most probative evidence shows that at worst the Veteran has Level I hearing in his right ear and Level II hearing in his left ear prior to July 29, 2019. 2. The most probative evidence shows that at worst the Veteran has Level IV hearing in his right ear and Level V hearing in his left ear from July 29, 2019. CONCLUSIONS OF LAW 1. The criteria for a compensable rating for bilateral hearing loss disability prior to July 29, 2019 are not met. 38 U.S.C. § 1155; 38 C.F.R. § 4.85, Part 4, Diagnostic Code 6100. 2. The criteria for a rating in excess of 10 percent for bilateral hearing loss disability from July 29, 2019 are not met. 38 U.S.C. § 1155; 38 C.F.R. § 4.85, Part 4, Diagnostic Code 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1964 to March 1970. He appeals a February 2016 rating decisions. He and his wife provided testimony before the undersigned Veterans Law Judge (VLJ) in October 2019. The VLJ clarified the issue on appeal; clarified the concept of increased rating claims; identified potential evidentiary defects; clarified the type of evidence that would support the Veteran’s claim; inquired as to the existence of potential outstanding records; and held the record open for 90 days for the submission of additional evidence. The actions of the VLJ comply with 38C.F.R. §3.103. The Board remanded the claim in February 2020 for an updated VA examination, as the Veteran testified that his condition had worsened since the last VA examination in 2016. Examination was accomplished in September 2020. The Agency of Original Jurisdiction (AOJ) increased the rating to 10 percent effective from July 29, 2019. The matter has been returned to the Board for appellate review. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity resulting from disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 1. Entitlement to a compensable rating for bilateral hearing loss disability prior to July 29, 2019 is denied. 2. Entitlement to a rating in excess of 10 percent for bilateral hearing loss disability from July 29, 2019 is denied. The Veteran seeks higher ratings for this disability, rated noncompensable prior to July 29, 2019 and 10 percent disabling thereafter under Diagnostic Code (DC) 6100. 38 C.F.R. §§ 4.85, 4.87. Separate ratings may be assigned for separate periods of time based on the facts found. Hart v. Mansfield, 21 Vet. App. 505 (2007). At his October 2019 hearing, he testified that his hearing had gotten noticeably worse in the last four years, and that he was now wearing hearing aids. Under the rating criteria, the method for rating bilateral hearing loss disability is based on examination results including a controlled speech discrimination test (Maryland CNC), and a pure tone audiometric test of pure tone decibel thresholds at 1000, 2000, 3000, and 4000 Hz with an average pure tone threshold obtained by dividing these thresholds by four. 38 C.F.R. § 4.85. Once these test results have been obtained, employing Table VI, a Roman numeral designation of auditory acuity level for hearing impairment is ascertained based on a combination of the percent of speech discrimination and pure tone threshold average. Once a Roman numeral designation of auditory acuity level for each ear has been determined, Table VII is used to determine the percentage evaluation for bilateral hearing loss by combining the Roman numeral designations of auditory acuity level for hearing impairment of each ear. 38 C.F.R. § 4.85. While there is an alternative method of rating hearing loss, this is not for application because the Veteran has not demonstrated exceptional hearing loss, defined as when the pure tone threshold at the frequencies of 1000, 2000, 3000, and 4000 Hertz is 55 decibels or more; or where the pure tone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz. See 38 C.F.R. § 4.86. See February 2016 and September 2020 VA audiograms. “[I]n addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in his or her final report.” Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). However, such is not part of the rating criteria. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (2009).   The Veteran underwent VA audiological evaluation in February 2016. Pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 25 25 35 50 33.75 (34) LEFT 30 30 35 45 35 Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 88 in the left ear. The puretone testing results were noted to be valid for rating purposes and the use of the CNC test was noted appropriate for this Veteran. The diagnosis sensorineural hearing loss bilaterally was made. Applying 38 C.F.R. § 4.85, Table VI to the above audiological findings, the Veteran has a numeric designation of I for the right ear and II for the left ear. Application of 38 C.F.R. § 4.85, Table VII, results in a noncompensable disability evaluation. The Veteran underwent VA audiological evaluation in September 2020. Pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 40 50 60 65 53.75 (54) LEFT 45 60 75 75 63.75(64) Speech audiometry revealed speech recognition ability of 76 percent in the right ear and of 72 in the left ear. The puretone testing results were noted to be valid for rating purposes and the use of the CNC test was noted appropriate for this Veteran. The diagnosis sensorineural hearing loss bilaterally was made. Applying 38 C.F.R. § 4.85, Table VI to the above audiological findings, the Veteran has a numeric designation of IV for the right ear and V for the left ear. Application of 38 C.F.R. § 4.85, Table VII, results in a 10 percent disability evaluation. The Veteran had other hearing/ear-related evaluations which include audiogram graphs during the appeal period by Dr. Millman. He noted mild to moderate neural hearing loss in February 2015. VA records include a June 2017 audiogram graph that does not provide all data necessary under the 38 C.F.R. § 4.85 rating criteria but appears to show hearing loss consistent with not more than a noncompensable rating. In October 2017, he reported for VA treatment that generally feels he is hearing well with this system and communication ability has improved with the hearing aids. A July 29, 2019 report with an audiogram and testing from Dr. Millman does not provide all data necessary under the 38 C.F.R. § 4.85 rating criteria but appears to show a degree of hearing loss more consistent with the February 2020 VA examination. Ultimately, none of the audiograms other than those conducted with the February 2016 and September 2020 VA examinations provides the necessary data and testing required under the VA rating criteria, but they also do not suggest a compensable rating prior to July 29, 2019 or higher than a compensable rating from that point. Here, we note that Dr, Millman’s July 29, 2019 report was considered by the AOJ to be sufficiently consistent with the September 2020 increased findings to support a 10 percent rating as of that date. We agree. We also find that a higher rating at any time is not warranted based on the aforementioned hearing loss data. Turning to the functional impact of the hearing loss, the VA examiner in 2016 observed that the Veteran’s hearing loss did impact ordinary conditions of daily life inasmuch as the Veteran reported constantly asking people to repeat what was said. The VA examiner in 2020 observed that the Veteran’s hearing loss did impact ordinary conditions of daily life inasmuch as the Veteran reported difficulty hearing people, having to wear hearing aids and having pain in the ear come and go. These reports of functional impact are consistent with his complaints throughout the record. The Board acknowledges these reported functional limitations, but finds that they are consistent with the current noncompensable rating prior to July 29, 2019 and the 10 percent rating thereafter. Based on a careful review of all the evidence, the Board finds that a compensable rating prior to July 29, 2019 and a 10 percent rating as of that date for the Veteran’s service-connected bilateral hearing loss disability is not warranted. The criteria set out by VA are simply not met or approximated. The argument in favor of higher ratings is outweighed by the documented VA examinations and treatment record showing no objective support for a compensable rating prior to July 29, 2019 or a 10 percent rating as of that date. Indeed, the audiology evaluations reflect medical professional’s testing results establishing hearing loss more likely became compensable at the 10 percent level and no higher not before July 29, 2019. As explained above, the Board has carefully considered the Veteran’s contentions that higher ratings are warranted. It must be emphasized that the assignment of a schedular disability rating for hearing impairment is derived by a mechanical application of the rating schedule to the numeric designation assigned after valid audiometry results are obtained. Hence, the Board has no discretion in this matter and must predicate its determination on the basis of the results of the audiology   studies of record. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). Critically, we conclude that the preponderance of the evidence is against finding that the hearing loss disability worsened to a compensable degree prior to July 29, 2019, or that a rating in excess of 10 percent is warranted as of that date. As the preponderance of the evidence is against the claim for increase, the benefit-of-the-doubt doctrine is inapplicable. 38 C.F.R. § 4.3. H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. RIPPEL 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.