Citation Nr: 21005086 Decision Date: 01/28/21 Archive Date: 01/28/21 DOCKET NO. 17-11 013 DATE: January 28, 2021 ORDER Entitlement to higher initial ratings for service-connected bilateral hearing loss, in excess of zero percent prior to December 13, 2016, 10 percent from December 13, 2016 to November 13, 2020, and 20 percent from November 13, 2020 is denied. FINDINGS OF FACT 1. Prior to December 13, 2016, the Veteran's bilateral hearing loss was productive of no worse than Level II hearing impairment in the right and left ears. 2. From December 13, 2016 to November 13, 2020, the Veteran’s bilateral hearing loss was productive of no worse than Level IV hearing impairment in the right and left ears. 3. From November 13, 2016, the Veteran’s bilateral hearing loss was productive of no worse than Level V hearing impairment in the right and left ears. CONCLUSIONS OF LAW 1. Prior to December 13, 2016, the criteria for a compensable initial rating for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.85, Diagnostic Code (DC) 6100. 2. From December 13, 2016 to November 13, 2020, the criteria for an initial rating in excess of 10 percent for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.85, DC 6100. 3. From November 13, 2020, the criteria for an initial rating in excess of 20 percent for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.85, DC 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1955 to May 1957. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which granted service connection for bilateral hearing loss and assigned a noncompensable rating decision from December 31, 2013. The Veteran filed a notice of disagreement (NOD) in September 2015. In a January 2017 rating decision, the RO increased the assigned rating to 10 percent from December 13, 2016. A statement of the case (SOC) was issued in January 2017. He perfected a timely appeal in January 2017. The claim on appeal was remanded by the Board in October 2017 in order to afford the Veteran with a hearing before a decision review officer (DRO). A transcript of the hearing has been associated with the Veteran’s claims file. In October 2020, the claim was remanded by the Board for further evidentiary development. As will be described below, a review of the record reflects substantial compliance with the Board’s Remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). A November 2020 rating decision increased the assigned rating to 20 percent from November 13, 2020. A supplemental statement of the case (SSOC) was issued in November 2020. The Veteran’s VA claims file has been returned to the Board for further appellate proceedings. 1. Entitlement to higher initial ratings for service-connected bilateral hearing loss, in excess of zero percent prior to December 13, 2016, 10 percent from December 13, 2016 to November 13, 2020, and 20 percent from November 13, 2020. As indicated above, the Veteran’s service-connected bilateral hearing loss is assigned a noncompensable initial rating from December 31, 2013 to December 13, 2016, a 10 percent rating from December 13, 2016 to November 13, 2020, and a 20 percent rating from November 13, 2020. The Veteran asserts entitlement to higher initial ratings from the date of service connection. See the notice of disagreement (NOD) dated September 2015 and the VA Form 9 dated January 2017. As will be explained below, the resolution of this issue involves determining the levels of hearing acuity. Impairment of auditory acuity (hearing loss) is evaluated pursuant to the provisions set forth at 38 C.F.R. § 4.85. Under that regulation, an examination for hearing impairment must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a pure tone audiometry test. Examinations are to be conducted without the use of hearing aids. 38 C.F.R. § 4.85(a). To evaluate the degree of disability from defective hearing, the Rating Schedule establishes 11 auditory acuity levels from Level I, for essentially normal acuity, through Level XI, for profound deafness. These are assigned based on a combination of the percent of speech discrimination and the pure tone threshold average, as contained in a series of tables within the regulations. 38 C.F.R. § 4.85(b). The pure tone threshold average is the sum of the pure tone thresholds at 1000, 2000, 3000, and 4000 Hertz (Hz), divided by four. This average is used in all cases to determine the Roman numeral designation for hearing impairment from Table VI or VIA. 38 C.F.R. § 4.85(d). Table VII, Percentage Evaluations for Hearing Impairment, is used to determine the percentage evaluation 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). In cases where impaired hearing is service-connected in 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, subject to the provisions of 38 C.F.R. § 3.383. 38 C.F.R. § 4.85(f). The regulatory provisions also provide two additional circumstances under which alternative tables can be employed. One is where the pure tone thresholds of the frequencies of 1000, 2000, 3000, and 4000 Hz are 55 decibels or greater. The second is where pure tone thresholds are 30 decibels or less at frequencies of 1000 Hz and below, and are 70 decibels or more at 2000 Hz. See 38 C.F.R. § 4.86. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The Rating Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. If two disability ratings are potentially applicable, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In view of the number of atypical instances, it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. 38 C.F.R. § 4.21. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. Any reasonable doubt regarding the degree of disability is resolved in favor of the veteran. 38 C.F.R. §§ 3.102, 4.3. In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). When the appeal arises from an initial assigned rating, consideration must be given to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). However, staged ratings are also 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 (2007). Here, analysis in this decision has therefore been undertaken with consideration of the possibility that different ratings may be warranted for different time periods as to the pending claim. In all cases, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a “competent” source. The Board must then determine if the evidence is credible, or worthy of belief. Barr, at 308 (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-12 (1995), aff’d, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (holding that the Board has the “authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence”). The Board has considered all evidence of record as it bears on the issue before it. See 38 U.S.C. § 7104(a) (“Decisions of the Board shall be based on the entire record in the proceeding and upon consideration of all evidence and material of record”); 38 U.S.C. § 5107(b) (“Secretary shall consider all information and lay and medical evidence of record in a case”). Although the Board has an obligation to provide reasons and bases supporting these decisions, there is no need to discuss, in detail, the extensive evidence of record. The Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board’s analysis below will focus specifically on what the evidence shows, or fails to show, as to the Veteran’s appeal. a. Prior to December 13, 2016. The Veteran filed a claim of entitlement to service connection for bilateral hearing loss in December 2014. A private audiogram dated in July 2014 documented the following audiometric thresholds: HERTZ 1000 2000 3000 4000 Average RIGHT 45 70 65 65 61.25 LEFT 45 60 65 65 58.75 In a November 2014 letter, Dr. A.R. stated that the Veteran was diagnosed with bilateral moderate to severe sensorineural hearing loss. Dr. A.R. explained that, in a recent July 2014 evaluation, the Veteran reported that his “hearing had declined by 5 to 10 decibels at several frequencies compared to the previous test” in April 2014. In a December 2014 statement, the Veteran reported that he suffers “a very serious loss of hearing that is influencing my ability to earn an income.” He explained, “I am a real estate broker and my days are spent in personal contact with people and talking on the telephone.” See the Veteran’s statement dated December 2014. He continued, “hearing is key in the job and the loss of hearing [has] greatly limited my ability to earn a living.” Id. The Veteran was afforded a VA audiology examination in June 2015 at which time the examiner noted the following pure tone thresholds: HERTZ 1000 2000 3000 4000 Average RIGHT 30 45 50 55 45 LEFT 40 50 55 60 51 Average pure tone threshold was 45 decibels in the right ear with speech recognition ability of 88 percent. Average pure tone threshold was 51 decibels in the left ear with speech recognition ability of 84 percent. The examiner stated that the Veteran’s bilateral hearing loss does impact the ordinary conditions of his daily life, including his ability to work; specifically, “Veteran reported difficulty hearing and understanding speech in movie theaters and during conversational speech.” Such examination findings translate to level II hearing in the right ear and level II hearing in the left ear. 38 C.F.R. § 4.85, Table VI. Applying Table VII, DC 6100, this equates to a noncompensable (zero percent) rating. The Veteran was afforded a VA audiology examination in January 2016 at which time the examiner documented the following pure tone thresholds: HERTZ 1000 2000 3000 4000 Average RIGHT 35 50 55 60 50 LEFT 45 50 55 60 53 Average pure tone threshold was 50 decibels in the right ear with speech recognition ability of 84 percent. Average pure tone threshold was 53 decibels in the left ear with speech recognition ability of 84 percent. The examiner stated that the Veteran’s bilateral hearing loss does not impact his ordinary conditions of daily life including his ability to work. Such examination findings translate to level II hearing in the right ear and level II hearing in the left ear. 38 C.F.R. § 4.85, Table VI. Applying Table VII, DC 6100, this equates to a noncompensable (zero percent) rating. In a February 2016 statement, the Veteran reported, “I am losing my hearing (rather rapidly) and I have lost my ability to earn a living . . . as telephone communication has become extremely difficult.” The Veteran’s VA treatment records document an on-going diagnosis of impaired hearing. However, there are no additional audiological results documented during this period. Accordingly, audiometric testing conducted for VA compensation purposes indicates that a compensable rating is not warranted prior to December 13, 2016. The Board notes that the July 2014 private audiogram does not indicate that speech recognition scores were obtained using the Maryland CNC test, as required by 38 C.F.R. § 4.85(a). A remand for clarification of this private audiogram is not warranted because such is required only when “a private medical report is the only evidence on a material issue, and material medical evidence can no longer be obtained as to that issue, yet clarification of a relevant, objective fact would render the private medical report competent for the assignment of weight.” Carter v. Shinseki, 26 Vet. App. 534, 545 (2014), vacated on other grounds by Carter v. McDonald, 794 F.3d 1342 (Fed. Cir. 2015) (citing Savage v. Shinseki, 24 Vet. App. 259, 267-70 (2011)); Savage, 24 Vet. App. at 270 (specifically limiting this duty to situations where “the missing information is relevant, factual, and objective-that is, not a matter of opinion” but also noting that, when it is applicable, the duty to clarify “includes medical examination reports of all kinds”). In this matter, there is other medical evidence for the period herein under consideration, which is material as to the question of entitlement to a higher initial rating for service-connected bilateral hearing loss. As such, remand is not warranted. Critically, there is no probative audiological evidence of record to support a compensable rating for the Veteran’s bilateral hearing loss disability prior to December 13, 2016. The preponderance of the evidence is against the Veteran’s claim for a higher initial rating. Consequently, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 55. b.d. From December 13, 2016 to November 13, 2020. As described above, in a January 2017 rating decision, the RO assigned a 10 percent rating from December 13, 2016. As such, the Board has considered whether a rating in excess of 10 percent is warranted from December 13, 2016 to November 13, 2020. A December 2016 VA audiology examination documented the pure tone thresholds indicated below: HERTZ 1000 2000 3000 4000 Average RIGHT 40 55 60 70 56 LEFT 50 55 60 70 59 Average pure tone threshold was 56 decibels in the right ear with speech recognition ability of 76 percent. Average pure tone threshold was 59 decibels in the left ear with speech recognition ability of 76 percent. The examiner stated that the Veteran’s bilateral hearing loss does not impact his ordinary conditions of daily life including his ability to work. Such examination findings translate to level IV hearing in the right ear and level IV hearing in the left ear. 38 C.F.R. § 4.85, Table VI. Applying Table VII, DC 6100, this equates to a 10 percent rating. In the January 2017 VA Form 9, the Veteran reported that prescribed hearing aids have provided limited assistance. He explained, “I am still working as a real estate broker. A large part of the profession is talking on the phone and working with people face to face. As my hearing is failing, it is becoming more and more difficult to meet and talk with people.” VA audiometric testing performed in February 2018 documented the following pure tone thresholds: HERTZ 1000 2000 3000 4000 Average RIGHT 40 55 65 75 58.75 LEFT 50 55 60 75 60 In the June 2018 DRO hearing transcript, the Veteran described his difficulty understanding people on the telephone even with the use of hearing aids. VA audiometric testing performed in January 2019 documented the pure tone thresholds indicated below: HERTZ 1000 2000 3000 4000 Average RIGHT 45 55 60 75 58.75 LEFT 55 55 70 70 62.5 VA audiometric testing conducted in February 2020 indicated the following pure tone thresholds: HERTZ 1000 2000 3000 4000 Average RIGHT 45 60 65 80 62.5 LEFT 55 60 65 75 63.75 The February 2018, January 2019, and February 2020 VA audiograms did not include a controlled speech discrimination test (Maryland CNC) as is required under 38 C.F.R. § 4.85(a). As such, these audiometric test results are not valid for VA compensation purposes. The Veteran’s VA treatment records for the period dating from December 2016 through November 2020 document an on-going diagnosis of impaired hearing. There are no additional audiological results documented during this period. Accordingly, the Board finds that there is no probative audiological evidence of record to support a rating for the Veteran’s bilateral hearing loss disability in excess of 10 percent from December 13, 2016 to November 13, 2020. The preponderance of the evidence is against the Veteran’s claim for a higher initial rating. Consequently, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107(b); Gilbert, at 55. c. From November 13, 2020. As indicated above, in a November 2020 rating decision, the RO assigned a 20 percent rating from November 13, 2020. The Board has therefore considered whether a rating in excess of 20 percent is warranted from November 13, 2020. The Veteran was most recently afforded a VA examination in November 2020 at which time the examiner documented the following pure tone thresholds: HERTZ 1000 2000 3000 4000 Average RIGHT 55 70 75 75 69 LEFT 55 65 70 70 65 The average pure tone threshold was 69 decibels in the right ear with speech recognition ability of 96 percent. The average pure tone threshold was 65 decibels in the left ear with speech recognition ability of 96 percent. The examiner stated that the Veteran’s bilateral hearing loss impacts his ordinary conditions of daily life including his ability to work. Specifically, the Veteran reported, “I am in sales and it affects my interaction with people and clients.” He continued, “I have considerable problems interacting with people at the supermarket and/or at restaurants. It affects me negatively the way I interact with my clients and my boss.” He further stated, “I can’t hear well in most situations and have to ask people to repeat themselves several times.” These examination findings translate to level II hearing in the right ear and level II hearing in the left ear. 38 C.F.R. § 4.85, Table VI. Applying Table VII, DC 6100, this equates to a 10 percent rating. However, because the Veteran’s hearing loss represents an exceptional pattern of hearing loss in both ears as defined by 38 C.F.R. § 4.86(a), Table VIa may be used if it reflects a higher level of hearing loss. The Board notes that, pursuant to Table VIa, the findings translate to level V hearing in the right ear and V hearing in the left ear. Applying Table VII, DC 6100, this equates to a 20 percent rating, but no higher. The Veteran’s VA treatment records for the period dating from November 13, 2020 document an on-going diagnosis of impaired hearing. However, there are no additional audiological results documented during this period. Critically, there is no probative audiology evidence of record to support a rating in excess of 20 percent for the Veteran’s bilateral hearing loss disability for the period dating from November 13, 2020. The preponderance of the evidence is against the Veteran’s claim for a higher initial rating. Consequently, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 55. d. Other considerations The Board in no way discounts the difficulties that the Veteran experiences as a result of his service-connected bilateral hearing loss disability. In this regard, it must be emphasized that the disability ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designation assigned after audiometry results are obtained. Hence, the Board must base its determination on the results of the pertinent and valid audiology studies. See Lendenmann, 3. Vet. App. at 345. In other words, the Board is bound by law to apply VA’s rating schedule based on the Veteran’s audiometry results. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Under these circumstances, the Board finds that the record presents no basis for assignment of higher initial ratings. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321. The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant’s disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extraschedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff’d, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant’s service-connected disability with the established criteria found in the rating schedule for that disability. The Board finds that the rating criteria contemplate the Veteran’s bilateral hearing loss disability. His hearing loss is manifested by decreased hearing acuity. A comparison between the level of severity and symptomatology of the Veteran’s assigned rating with the established criteria found in the rating schedule shows that the rating criteria reasonably describe the Veteran’s disability level and symptomatology, including his difficulty hearing and understanding speech. The Board notes that this conclusion is consistent with the Court’s holding in Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (“[W]hen a claimant’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”). The Board further finds that other than difficulty hearing or understanding speech, the record on appeal contains no evidence of other symptoms attributable to the service-connected hearing loss, such as dizziness, vertigo, or ear pain, not contemplated by the rating criteria. Because the rating criteria reasonably describe the claimant’s disability level and symptomatology, the Veteran’s disability picture is contemplated by the Rating Schedule, such that the assigned schedular noncompensable evaluation is, therefore, adequate, and no referral is required. Thun v. Peake, 22 Vet. App. 111, 115-116 (2008); VAOPGCPREC 6-96. The evidence does not show anything unique or unusual about the Veteran’s bilateral hearing loss that would render the schedular criteria inadequate. The Board recognizes that the Veteran has repeatedly contended that his bilateral hearing loss significantly affects his ability to work. The Board has therefore considered the applicability of a total rating based on individual unemployability due to service-connected disability (TDIU), pursuant to Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). In this regard, the Board recognizes that, in a February 2016 statement, the Veteran reported that he has lost his ability to earn a living due to his worsening bilateral hearing loss. However, he subsequently asserted that he remained employed as a real estate broker, but that his hearing loss was causing increased difficulty to meet and talk with people. See the VA Form 9 dated January 2017. Moreover, the medical evidence of record does not suggest that he is unable to obtain or maintain any type of substantially gainful employment consistent with his education and employment history due solely to bilateral hearing loss, which is his only service-connected disability. Although the June 2015 and November 2020 VA examiners reported that the Veteran’s bilateral hearing loss does impact his ability to work, no medical professional has suggested that the Veteran is unable to obtain or maintain gainful employment due solely to his service-connected bilateral hearing loss. The Board finds that the VA medical opinions are consistent with the other clinical evidence of record. The Board therefore finds that the overall record does not show that the Veteran is unable to obtain or maintain substantially gainful employment due to his service-connected bilateral hearing loss. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); see also Bradley v. Peake, 22 Vet. App. 280 (2008); Rice, 22 Vet. App. At 453-54. K. Conner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. K. Buckley, 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.