Citation Nr: 21062382 Decision Date: 10/07/21 Archive Date: 10/07/21 DOCKET NO. 16-55 142 DATE: October 7, 2021 ORDER Entitlement to an initial compensable rating for bilateral hearing loss prior to March 22, 2021 and in excess of 40 percent thereafter is denied. FINDINGS OF FACT 1. Prior to March 22, 2021, audiometric examinations show no greater than a level IX hearing loss for the right ear and no greater than a level I hearing loss for the left ear. 2. From March 22, 2021, audiometric examinations show no greater than a level IX hearing loss for the right ear and no greater than a level V hearing loss for the left ear. CONCLUSION OF LAW The criteria for entitlement to an initial compensable rating for bilateral hearing loss prior to March 22, 2021 and in excess of 40 percent thereafter have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.85, Diagnostic Code (DC) 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from September 1956 to September 1958. This matter comes before the Board of Veterans' Appeals (Board) on an appeal from a November 2015 rating decision issued by the Agency of Original Jurisdiction (AOJ). The appeal was previously remanded by the Board in October 2018, November 2020, and June 2021. The matter was most recently remanded to obtain missing VA treatment records containing relevant audiograms. The missing audiograms were associated with the file in June 2021. Thus, the Board determines that there has been substantial compliance with the June 2021 remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). The Board acknowledges the Veteran attempted to opt-in to the Appeals Modernization Act (AMA) review system on May 6, 2020. However, the May 2020 VA Form 20-0995 was ineligible as an opt-in because it was received by the VA after the close of the Rapid Appeals Modernization Program and prior to the issuance of any statement of the case or supplemental statement of the case following the February 19, 2019 implementation of the modernized system. Additionally, the VA had not issued an AMA or RAMP rating decision in the Veteran's case prior to May 2020 VA Form 20-0995. Therefore, the appeal remains in the legacy system. Increased Rating- Disability evaluations are determined by comparing a Veteran's symptoms with criteria set forth in VA's Schedule for Rating Disabilities, which are based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. The Veteran's entire history is reviewed when making disability evaluations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). A disability rating may require re-evaluation in accordance with changes in a Veteran's condition. It is thus essential in determining the level of current impairment that the disability is considered in the context of the entire recorded history. Id. § 4.1. Nevertheless, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). As to claims of entitlement to an increased evaluation, as opposed to a higher initial evaluation, "the relevant temporal focus... is on the evidence concerning the state of the disability from the period one year before the claim was filed until VA makes a final decision on the claim." Hart v. Mansfield, 21 Vet. App. 505, at 509 (2007). The Board notes that staged ratings are appropriate for an increased-rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher of the two evaluations is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Evaluations for defective hearing are based upon organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests, along with the average hearing threshold level as measured by puretone audiometric tests in the frequencies of 1000, 2000, 3000 and 4000 cycles per second. 38 C.F.R. § 4.85. To evaluate the degree of disability for service-connected bilateral hearing loss, the rating schedule establishes eleven (11) auditory acuity levels, designated from level I for essentially normal acuity, through level XI for profound deafness. Id. Where there is an exceptional pattern of hearing impairment, a rating based on puretone thresholds alone may be assigned. 38 C.F.R. § 4.86. Ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). 1. Entitlement to an initial compensable rating for bilateral hearing loss The Veteran was initially granted service connection at a 0 percent rating effective June 23, 2014. The initial rating was based on the results of an October 2015 VA examination. The results of the October 2015 audiological test are as follows, with puretone thresholds recorded in decibels: HERTZ 1000 2000 3000 4000 RIGHT 40db 70db 65db 65db LEFT 30db 30db 50db 45db Speech audiometry revealed speech recognition ability on the Maryland CNC word list of 56 percent in the right ear and 96 percent in the left ear. The average of the puretones between 1000-4000 Hertz was 60 in the right ear and 38.75 in the left ear. Using Table VI in 38 C.F.R. § 4.85, the Veteran received a numeric designation of VII for the right ear and I for the left. Such a degree of hearing loss warrants a noncompensable rating under Table VII. Because the Veteran's audiometric results do not reveal an exceptional patter on hearing impairment, Table VIa is not applicable. 38 C.F.R. § 4.86. The Veteran underwent a second VA audiological evaluation in May 2018. The results of the September 2015 audiological test are as follows, with puretone thresholds recorded in decibels: HERTZ 1000 2000 3000 4000 RIGHT 30db 50db 60 65db LEFT 20db 25db 45db 55db Speech audiometry revealed speech recognition ability on the Maryland CNC word list of 40 percent in the right ear and 96 percent in the left ear. The average of the puretones between 1000-4000 Hertz was 51.25 in the right ear and 36.25 in the left ear. Using Table VI in 38 C.F.R. § 4.85, the Veteran received a numeric designation of VIII for the right ear and I for the left. Such a degree of hearing loss warrants a noncompensable rating under Table VII. Because the Veteran's audiometric results do not reveal an exceptional patter on hearing impairment, Table VIa is not applicable. 38 C.F.R. § 4.86. June 2018 VA treatment records reveal the Veteran's hearing was tested due to complaints of increased difficulty hearing. The results of the audiological test are as follows, with puretone thresholds recorded in decibels: HERTZ 1000 2000 3000 4000 RIGHT 40db 70db 70db 65db LEFT 25db 35db 55db 50db Speech audiometry revealed speech recognition ability on the Maryland CNC word list of 52 percent in the right ear and 92 percent in the left. The average of the puretones between 1000-4000 Hertz was 61.25 for the right ear and 41.25 for the left. Using Table VI in 38 C.F.R. § 4.85, the Veteran received a numeric designation of IX for the right ear and I for the left ear. Such a degree of hearing loss warrants a noncompensable rating under Table VII. Because the Veteran's audiometric results do not reveal an exceptional patter on hearing impairment, Table VIa is not for application. 38 C.F.R. § 4.86. The Veteran was afforded a third VA examination in October 2018. The results of the audiological test are as follows, with puretone thresholds recorded in decibels: HERTZ 1000 2000 3000 4000 RIGHT 40db 70db 65db 65db LEFT 25db 30db 45db 55db Speech audiometry revealed speech recognition ability on the Maryland CNC word list of 74 percent in the right ear and 98 percent in the left ear. The average of the puretones between 1000-4000 Hertz was 60 for the right ear and 38.75 for the left. Using Table VI in 38 C.F.R. § 4.85, the Veteran received a numeric designation of V for the right ear and I for the left. Such a degree of hearing loss warrants a noncompensable rating under Table VII. Because the Veteran's audiometric results do not reveal an exceptional pattern of hearing impairment, Table VIa is not applicable. 38 C.F.R. § 4.86. September 2019 VA treatment records reveal additional audiological testing. The results of the audiological test are as follows, with puretone thresholds recorded in decibels: HERTZ 1000 2000 3000 4000 RIGHT 45db 75db 75db 75db LEFT 30db 45db 55db 60db Speech audiometry revealed speech recognition ability on the Maryland CNC word list of 52 percent in the right ear and 92 percent in the left. The average of the puretones between 1000-4000 Hertz was 67.5 for the right ear and 47.5 for the left. Using Table VI in 38 C.F.R. § 4.85, the Veteran received a numeric designation of VIII for the right ear and I for the left ear. Such a degree of hearing loss warrants a noncompensable rating under Table VII. Because the Veteran's audiometric results do not reveal an exceptional patter on hearing impairment, Table VIa is not for application. 38 C.F.R. § 4.86. Based on the above, the Board finds that the claim for an initial compensable rating must be denied. The record contains lay reports regarding difficulty hearing. However, this is of little probative value as the assignment of disability ratings for hearing impairment is primarily derived from a mechanical formula based on levels of puretone threshold average and speech discrimination. Lendenmann, 3 Vet. App. 345. Accordingly, the examinations of record are afforded great probative value in determining the Veteran's level of hearing impairment. Accordingly, there is no competent evidence of record that the Veteran's hearing loss warranted other than the initially assigned 0 percent rating prior to March 22, 2021. 2. Entitlement to a rating in excess of 40 percent from March 22, 2021 During the pendency of the appeal, the Veteran claimed that his hearing worsened. On March 22, 2021, the Veteran was provided a fourth VA examination. The results of the audiological test are as follows, with puretone thresholds recorded in decibels: HERTZ 1000 2000 3000 4000 RIGHT 75db 75db 80db 80db LEFT 40db 60db 70db 70db Speech audiometry revealed speech recognition ability on the Maryland CNC word list of 40 percent in the right ear and 72 percent in the left ear. The average of the puretones between 1000-4000 Hertz was 78 for the right ear and 60 for the left. Using Table VI in 38 C.F.R. § 4.85, the Veteran received a numeric designation of IX for the right ear and V for the left ear. Such a degree of hearing loss warrants a 40 percent rating under Table VII. The audiometric results reveal an exceptional pattern of hearing loss in the right ear. Under Table VIa, the Veteran received a numeric designation of VII for the right ear, which, when combined with the level V hearing loss in the left ear warrants a 30 percent rating under Table VII. The Board notes that with the application of Table VII, the Veteran is entitled a higher rating under Table VIa. The most probative evidence as to the nature of the appellant's hearing loss is the audiometric findings, and those discussed above reveal that the Veteran's hearing loss does not warrant entitlement to a rating in excess of 40 percent from March 22, 2021. In reaching this conclusion, the Board has considered the applicability of the reasonable doubt doctrine; however, since the preponderance of the evidence is against his claim, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Board had also considered whether an extraschedular rating is warranted for the service-connected bilateral hearing loss during the relevant period on appeal based on the Veteran's assertions of how his hearing loss impacts his daily life. Ratings shall be based as far as practicable upon the average impairments of earning capacity with the additional proviso that the Secretary shall from time to time readjust this schedule of ratings in accordance with experience. To accord justice, therefore, to the exceptional case where the schedular ratings are found to be inadequate, the Under Secretary for Benefits or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve on the basis of the criteria set forth in this paragraph an extraschedular rating commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities. The governing norm in these exceptional cases is: A finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1) (2016). The United States Court of Appeals for Veterans Claims (Court) has clarified that there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. Thun v. Peake, 22 Vet. App. 111, 115 (2008). Initially, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular ratings for the service connected disability are inadequate. See Yancy v. McDonald, 27 Vet. App. 484 (2016); Doucette v. Shulkin, 28 Vet. App. 366 (2017) (holding that either the veteran must assert that a schedular rating is inadequate or the evidence must present exceptional or unusual circumstances); Sowers v. McDonald, 27 Vet. App. 472, 478 (2016) ("[t]he rating schedule must be deemed inadequate before extraschedular consideration is warranted"). Second, if the schedular rating does not contemplate the veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the veteran's disability picture exhibits other related factors such as marked interference with employment and frequent periods of hospitalization. Thun, 22 Vet. App. at 116. Third, if the first two Thun elements have been satisfied, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the veteran's disability picture requires the assignment of an extraschedular rating. Thun, 22 Vet. App. at 116. In other words, the first element of Thun compares a veteran's symptoms to the rating criteria, while the second element considers the resulting effects of those symptoms; if either prong is not met, then referral for extraschedular consideration is not appropriate. Yancy, 27 Vet. App. at 494-95. With respect to the first prong of Thun, the evidence in the instant appeal does not establish such an exceptional disability picture as to render the schedular criteria inadequate. The schedular rating criteria for rating hearing loss provide for disability ratings based on audiometric evaluations, to include speech discrimination and pure tone testing. Here, all the Veteran's hearing loss symptoms and described hearing impairments are contemplated by the schedular rating criteria. The Veteran's hearing loss disability has manifested in difficulty hearing conversations on the telephone and having to turn the television volume up louder than normal. The schedular rating criteria specifically provide for ratings based on all levels of hearing loss in various contexts, as measured by both audiometric testing and speech recognition testing. The ability of the Veteran to hear sounds and voices is measured and rated by an audiometric test, as this test measures different frequencies and captures high frequency hearing loss from sources including voices, music, sirens, and certain high pitched sounds. The ability of the Veteran to understand people and having to ask others to repeat themselves on a regular basis is rated by a speech recognition test, as this test measures conversation comprehension, words, and missed conversations. The schedular rating criteria specifically provide for ratings based on all levels of hearing loss, including exceptional hearing patterns as measured by both audiometric testing and speech recognition testing. See Doucette, 28 Vet. App. 366 (holding "that the rating criteria for hearing loss contemplate the functional effects of difficulty hearing and understanding speech"). The Board notes that decibel loss and speech discrimination ranges designated for each level of hearing impairment in Tables VI and VIa were chosen in relation to clinical findings of the impairment experienced by veterans with certain degrees and types of hearing disability. The regulatory history of 38 C.F.R. §§ 4.85 and 4.86 includes revisions, effective June 10, 1999. See 64 Fed. Reg. 25,202 (May 11, 1999). In forming these revisions, VA sought the assistance of the Veteran's Health Administration (VHA) in developing criteria that contemplated situations in which a veteran's hearing loss was of such a type that speech discrimination tests may not reflect the severity of communicative functioning these veterans experienced or that was otherwise an extreme handicap in the presence of any environmental noise, even with the use of hearing aids. VHA had found through clinical studies of veterans with hearing loss that, when certain patterns of impairment are present, a speech discrimination test conducted in a quiet room with amplification of the sounds does not always reflect the extent of impairment experienced in the ordinary environment. The decibel threshold requirements for application of Table VIa were based on the findings and recommendations of VHA. The intended effect of the revision was to fairly and accurately assess the hearing disabilities of veterans as reflected in a real-life industrial setting. 59 Fed. Reg. 17,295 (Apr. 12, 1994). The inherent purpose of the schedular rating criteria is to determine, as far as practicable, the severity of functional impact resulting from a service connected disability, including any resultant occupational and social impairment, and therefore contemplates the Veteran's difficulties functioning in a social environment due to hearing loss. Accordingly, the Board finds that the Veteran's reported hearing related difficulties are factors contemplated in the regulations and schedular rating criteria and referral for extraschedular consideration is not warranted. See also Doucette, 28 Vet. App. 366 (holding that "the rating criteria for hearing loss contemplate the functional effects of decreased hearing and difficulty understanding speech in an everyday work environment, as these are precisely the effects that VA's audiometric tests are designed to measure... an inability to hear or understand speech or to hear other sounds in various contexts... are contemplated by the schedular rating criteria"). GAYLE STROMMEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Sherman 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.