Citation Nr: 21062073 Decision Date: 10/06/21 Archive Date: 10/06/21 DOCKET NO. 13-05 446 DATE: October 6, 2021 ORDER A compensable rating prior to October 9, 2018, and a rating higher than 30 percent thereafter for bilateral hearing loss is denied. FINDINGS OF FACT 1. Prior to October 9, 2018, the Veteran's bilateral hearing was manifested by hearing acuity of no worse than Level II in the right ear and no worse than Level II in the left ear. 2. From October 9, 2018, the Veteran's bilateral hearing has been manifested by hearing acuity of no worse than Level VI in the right ear and no worse than Level VI in the left ear. CONCLUSIONS OF LAW 1. Prior to October 9, 2018, the criteria for a compensable rating 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. 2. From October 9, 2018, the criteria for a rating higher than 30 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 August 1986 to June 1989. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2011 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a November 2016 videoconference hearing before a Veterans Law Judge (VLJ) who is no longer employed by the Board. A transcript is of record. In July 2021, the Board sent the Veteran a letter presenting him with an opportunity for another hearing; however, he has not requested another hearing. In October 2017, July 2019, and February 2021, the Board remanded this matter for further development. As an initial matter, the Board finds that there was substantial compliance with its February 2021 remand directive. In its February 2021 remand, the Board directed VA to provide the Veteran notice in conformance with 38 C.F.R. § 3.159(e) that it could not locate audiogram records from November 2012 and March 2017. In March 2021, the Veteran was sent notice that VA was unable to obtain audiogram records from November 2012 and March 2017, described the efforts VA made to obtain the records, informed the Veteran that a decision on his claim would be made on the evidence available, and that the Veteran was ultimately responsible for providing the evidence. This notice satisfies the requirements in 38 C.F.R. § 3.159(e), and the Board finds that that there was substantial compliance with its remand directive. Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. Evaluations of defective hearing range from 0 to 100 percent. This is based on impairment of hearing acuity as measured by the results of controlled speech discrimination tests, together with the average hearing threshold level as measured by pure tone audiometric tests in frequencies of 1000, 2000, 3000, and 4000 Hertz. To evaluate the degree of disability from service-connected hearing loss, the rating schedule establishes eleven auditory acuity levels ranging from numeric Level I for essentially normal acuity, through numeric Level XI for profound deafness. 38 C.F.R. § 4.85, Tables VI and VII, Diagnostic Code 6100. Table VI in 38 C.F.R. § 4.85 is used to determine the numeric designation of hearing impairment based on the pure tone threshold average from the speech audiometry test and the results of the Maryland CNC speech discrimination test. The vertical lines in Table VI represent nine categories of the percentage of discrimination based on the controlled speech discrimination test. The horizontal columns in Table VI represent categories of decibel loss based on the pure tone audiometry test. The numeric designation of impaired hearing (Levels I through XI) is determined for each ear by intersecting the vertical row corresponding to the percentage of discrimination and the horizontal column corresponding to the pure tone decibel loss. 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. Each ear will be evaluated separately. The percentage evaluation is derived from Table VII in 38 C.F.R. § 4.85 by intersecting the vertical column corresponding to the numeric designation for the ear having the better hearing acuity and the horizontal row corresponding to the numeric designation level for the ear having the poorer hearing acuity. The Veteran was in receipt of a noncompensable rating for his bilateral hearing loss until October 9, 2018, when it was increased to 30 percent disabling. In April 2011, the Veteran underwent a VA examination for his claim. Audiometric testing revealed the following: HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 50 65 85 90 72.5 92 LEFT 45 60 75 85 66.25 96 Applying the results of the April 2011 examination to Table VI reflects that the Veteran had Level II hearing in both ears. These results when applied to Table VII results in a noncompensable disability rating. After a remand, in October 2018, the Veteran underwent another VA examination for his claim. Audiometric testing revealed the following: HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 55 65 80 80 70 100 LEFT 50 70 80 90 73.75 100 Applying the results of the October 2018 examiner to Table VI reflects that the Veteran has Level II hearing in both ears which when applied to Table VII results in a noncompensable rating. However, the examination indicates that the Veteran has an exceptional pattern of hearing loss in both ears. Applying the results to Table VIa reflects that the Veteran has Level VI hearing in both ears. These results when applied to Table VII results in a 30 percent rating. (Continued on the next page) The claims file includes VA and private treatment records that document the Veteran's hearing loss. VA treatment records include two audiology notes from November 2012 and March 2017 where audiological testing was performed. The November 2012 audiology note states that there was mild to severe hearing loss above 500 Hz and speech recognition was excelling. Unfortunately, the audiogram record is not available, and as explained above VA has found that it is unable to obtain the record. In March 2017, the Veteran reported decreased hearing and audiological testing found moderate to profound hearing loss from 500 to 8000 Hz, with speech recognition good. Again, the audiogram record from this appointment is not available and VA has found that it is unable to obtain the record. The Board does note that the report of decreased hearing in March 2017 is contradicted by a September 2017 private treatment record where the Veteran reported no hearing problems. This is repeated in December 2017 and January 2018. However, in an October 2012 statement and at his November 2016 hearing the Veteran reported that his hearing worsened. The Veteran has been inconsistent regarding the state of his hearing loss disability. Due to this inconsistency, the Board finds his statements regarding his hearing loss to not be credible and affords his reports regarding the state of his hearing loss little probative weight. The Board finds that the above evidence does not support awarding a compensable rating prior to October 9, 2018, and higher than 30 percent thereafter. At no point prior to the October 2018 VA examination is there audiometric testing with results that would allow for a 30 percent rating when the results are applied to Table VI or Table VIa and Table VII. Though the VA records do indicate that the Veteran had hearing loss, and that the Veteran's hearing loss had worsened, without audiogram results, the Board cannot determine whether the Veteran had hearing loss that was compensable. A rating higher than 30 percent cannot be awarded as there is no audiological testing with results when applied to Table VI or Table VIa and Table VII that would allow for a higher rating. Accordingly, the Board finds that a preponderance of the evidence weighs against awarding a compensable rating prior to October 9, 2018, and a rating higher than 30 percent thereafter. As such, the benefit-of-the-doubt rule does not apply, and the claim is denied. JOHN Z. JONES Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael Chandeck, 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.