Citation Nr: 21062042 Decision Date: 10/06/21 Archive Date: 10/06/21 DOCKET NO. 17-45 353 DATE: October 6, 2021 ORDER Entitlement to a compensable disability rating for bilateral hearing loss prior to June 1, 2017, is denied. Entitlement to a disability rating of 10 percent, but no higher, for bilateral hearing loss is granted effective June 1, 2017. FINDINGS OF FACT 1. Prior to June 1, 2017, the Veteran's bilateral hearing loss was manifested by hearing acuity of no worse than Level IV in the right ear and no worse than Level II in the left ear. 2. On and after June 1, 2017, the Veteran's bilateral hearing loss has been manifested by hearing acuity of no worse than Level V in the right ear and no worse than Level II in the left ear. CONCLUSIONS OF LAW 1. Prior to June 1, 2017, the criteria for a compensable rating for bilateral hearing loss were not 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. On and after June 1, 2017, the criteria for a disability rating of 10 percent, but no higher, for bilateral hearing loss have 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 from May 1975 to May 1979. In a March 2019 Board Decision, the above-referenced claim was remanded to the RO for further evidentiary development and readjudication. The RO has substantially complied with the Board's remand instructions, so the Board may proceed to the merits of the claim. See Stegall v. West, 11 Vet. App. 268, 271 (1998); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (noting that Stegall requires substantial compliance with remand orders, rather than absolute compliance). The Veteran contends that he is entitled to a higher rating for his bilateral hearing loss, including because his private audiologist believes "that [his] hearing loss warrants [a] greater rating." See September 2017 VA Form 9; June 2017 Private Opinion Letter ("These numbers represent easily forty percent loss based on pure tone testing and his work [sic] recognition scores would quantify 25-30% disability from the standpoint of his hearing."); June 2017 Private Treatment Note ("I really think it is imperative to understand he has easily 25-30% hearing loss in his ears based on word recognition scores. His pure tone testing numbers are greater than 40% below normal. I think this would certainly qualify him for disability in regard to his hearing..."). Evaluations of defective hearing range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of a controlled Maryland CNC speech discrimination test together with the average hearing threshold level measured by pure tone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hertz). 38 C.F.R. § 4.85, Diagnostic Code 6100. To evaluate the degree of disability from bilateral service-connected hearing loss, the schedule establishes 11 auditory hearing acuity levels designated from Level I for essentially normal hearing acuity through Level XI for profound deafness. 38 C.F.R. § 4.85, Tables VI and VII. An exceptional pattern of hearing impairment occurs when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more. 38 C.F.R. § 4.86(a). In that situation, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral. Further, when the average pure tone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral, and that numeral will then be elevated to the next higher numeral. 38 C.F.R. § 4.86(b). The record contains several audiological examinations, not all of which can be used for rating the Veteran's hearing loss. However, all of them are summarized below in chronological order of the testing. A January 2011 private treatment record revealed pure tone thresholds as follows: January 2011 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 10 45 60 65 45 n/a LEFT 15 50 65 65 48.75 n/a The private audiologist indicated speech recognition scores of 76 percent for the right ear and 69 percent for the left ear. See November 2020 VA Examiner's Opinion (interpreting the hearing threshold results as above, but mistakenly indicating 84 percent word recognition score in the left ear although the clearest copy of the 2011 private report clearly indicates 69 percent). However, the private treatment record does not indicate whether the Maryland CNC speech discrimination test was used. Id. VA contacted the private audiologist's office to clarify that question and the private audiologist's office informed VA that they did not use the Maryland CNC speech discrimination test. See August 2020 VA 21-0820 Report of General Information (indicating that the private audiologist's office stated that "they do not do Maryland CNC audio testing"). Therefore, the results of this audiological examination are not adequate to rate the Veteran's hearing loss disability. See 38 C.F.R. § 4.85(a) ("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) and a puretone audiometry test."). A December 2015 VA examination reveals that the Veteran reported that he could "not hear people when they are communication [sic] with me." See Martinak v. Nicholson, 21 Vet. App. 447 (2007). The Veteran's Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: December 2015 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 15 55 65 65 50 80 LEFT 15 55 60 65 48.75 88 Applying the results to Table VI, the findings yield a numeric designation of Level IV in the right ear and Level II in the left ear. Entering the resulting bilateral numeric designation of Level IV for the right ear and Level II for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a noncompensable (0 percent) disability rating under Diagnostic Code 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown, so the alternate method of rating hearing loss is inapplicable. A February 2017 VA examination reveals that the Veteran reported difficulty hearing his wife and children at home and trouble hearing in noise and when people's backs are turned away from him. The Veteran's Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: February 2017 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 15 65 80 70 58 94 LEFT 10 65 75 70 55 94 Applying the results to Table VI, the findings yield a numeric designation of Level II in the right ear and Level I in the left ear. Entering the resulting bilateral numeric designation of Level II for the right ear and Level I for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a noncompensable (0 percent) disability rating under Diagnostic Code 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. A June 2017 private treatment record reveals that the Veteran reported increased difficulty understanding what is being said in conversational settings. The Veteran's Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: June 2017 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 20 70 70 65 56.25 n/a LEFT 20 60 70 70 55 n/a The private audiologist indicated speech recognition scores of 68 percent for the right ear and 76 percent for the left ear. But see June 2017 Private Treatment Note ("Audiogram obtained today in the office demonstrates a sensorineural hearing loss in both ears with word recognition scores of 64 and 72%."). Regardless of the discrepancy between the word recognition scores recorded on the audiogram and in the accompanying private treatment note, there is no indication in either of them that the Maryland CNC speech discrimination test was conducted. As noted above, the private physician's office informed VA that they "do not do Maryland CNC audio testing." See August 2020 VA 21-0820 Report of General Information. Therefore, the results of this audiological examination are not adequate to rate the Veteran's hearing loss disability. A January 2020 VA examination reveals that the Veteran reported difficulty hearing in any level of background noise. The Veteran's Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: January 2020 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 20 70 70 70 58 84 LEFT 20 65 70 70 56 88 Applying the results to Table VI, the findings yield a numeric designation of Level III in the right ear and Level II in the left ear. Entering the resulting bilateral numeric designation of Level III for the right ear and Level II 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 shown in the right ear (but not the left ear). Applying the results to Table VIA yields Level IV in the right ear. However, pursuant to 38 C.F.R. § 4.86(b), because the puretone thresholds in the right ear were 30 decibels or less at 1000 Hz and 70 decibels or greater at 2000 Hz, the Roman numeral obtained from Table VIA "will then be elevated to the next higher Roman numeral." Therefore, the right ear has a hearing level of V. Entering the resulting bilateral numeric designation of Level V for the right ear and Level II for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a 10 percent disability rating under Diagnostic Code 6100. Based on the evidence above, an initial compensable rating for the Veteran's bilateral hearing loss is not warranted. However, the January 2020 VA examination establishes that a staged rating of 10 percent is appropriate based on an exceptional pattern of hearing loss in the right ear. The Board notes that the audiological findings in the June 2017 private treatment record with respect to puretone thresholds are nearly identical to those found in the January 2020 VA examination, to include that the Veteran had an exceptional pattern of hearing loss in the right ear by June 2017 and that the Roman numeral designation for the right ear would have been V pursuant to Table VIA and 38 C.F.R. § 4.86(b). Under 38 U.S.C. § 5110, "[t]he effective date of an award of increased compensation shall be the earliest date as of which it is ascertainable that an increase in disability had occurred." See also 38 C.F.R. § 3.400(o)(1) (providing that, if an increase in disability occurs after the claim is filed, the effective date should be the date that the increase is shown to have occurred (date entitlement arose). The Board finds that the compensable increase in hearing loss disability established by the January 2020 VA examination was first ascertainable as of June 1, 2017, the date of the private treatment record containing nearly identical puretone threshold values, to include the exceptional pattern of hearing loss in the right ear also documented in January 2020. For that reason, the Board will grant a 10 percent rating effective June 1, 2017, but no earlier, for bilateral hearing loss. In making this determination, the Board has been informed by the uniquely pro-claimant principles underlying the veterans' benefits system. See Nat'l Org. of Veterans' Advocates, Inc. v. Sec'y of Veterans Affairs, 710 F.3d 1328, 1330 (Fed. Cir. 2013); Evans v. Shinseki, 25 Vet. App. 7, 14 (2011) (stating that the VA system is "veteran-friendly" and "non-adversarial"); Kouvaris v. Shinseki, 22 Vet. App. 377, 381 (2009) (noting that the veterans' benefits system is a "veteran-friendly" system); see also Shinseki v. Sanders, 556 U.S. 396, 412 (2009) ("Congress has expressed special solicitude for the veterans' cause.....the adjudicatory process is not truly adversarial"). The pro-claimant nature of the system is such that VA has an affirmative obligation to grant "every benefit that can be supported in law." 38 C.F.R. § 3.103(a) ("it is the obligation of VA...to render a decision which grants every benefit that can be supported in law while protecting the interests of the Government."); 38 C.F.R. § 3.102 ("when, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin...or any other point, such doubt will be resolved in favor of the claimant."). Here, the June 2017 private treatment record alone would not have warranted the grant of an increased rating, standing alone, because it was inadequate for rating purposes. However, because the June 2017 puretone threshold findings are essentially identical to the findings on the January 2020 VA examination, including in that they also indicate an exceptional pattern of hearing loss in the right ear, and there is no other examination between June 2017 and January 2020 which might weigh against finding the increase occurred prior to January 2020, the Veteran will be given the benefit of every doubt and a June 2017 effective date will be assigned. Any later effective date for the increase would require ignoring evidence favorable to the Veteran (though inadequate by itself for rating purposes) due solely to VA's failure to schedule a VA examination sooner after the June 2017 private testing which indicated worsening hearing loss. June 1, 2017, is the date it first became ascertainable that the Veteran had increased hearing loss, notwithstanding that the January 2020 VA examination provided the first adequate testing of that hearing loss for rating purposes. The Board expressly acknowledges its consideration of the lay evidence of record when adjudicating this claim, including his various reports of difficulty hearing conversation to include in noisy environments. The Veteran is competent to report difficulty with his hearing; however, disability ratings for hearing loss are derived from a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). The rating criteria contemplate speech reception thresholds and ability to hear spoken words on Maryland CNC testing. The functional impact that the Veteran describes, is contemplated by the rating criteria. Doucette v. Shulkin, 28 Vet. App. 366 (2017). The Veteran's main complaint is reduced hearing acuity and clarity, which is what is contemplated in the rating assigned. See Rossy v. Shulkin, 29 Vet. App. 142, 145 (2017). Accordingly, the preponderance of the most probative evidence is against the claim of entitlement to a compensable rating prior to June 1, 2017, but favors granting a 10 percent rating, but no higher, as of June 1, 2017, for hearing loss. In reaching the conclusion above, the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Duties to Notify and Assist The Veteran has not raised any specific issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Therefore, the Board does not need to discuss VA's compliance with the duties to notify and assist. MICHELLE L. KANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Kerry Hubers 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.