Citation Nr: 21062914 Decision Date: 10/12/21 Archive Date: 10/12/21 DOCKET NO. 16-42 783 DATE: October 12, 2021 ORDER Entitlement to a rating in excess of 20 percent prior to June 15, 2021 and in excess of 50 percent thereafter for bilateral hearing loss is denied. FINDINGS OF FACT 1. Prior to June 15, 2021, the Veteran's bilateral hearing loss was manifested by numeric designations no greater than Level III hearing acuity in his right ear and Level VI hearing acuity in his left ear. 2. From June 15, 2021, the Veteran's bilateral hearing loss was manifested by numeric designations no greater than level VII hearing acuity in his right ear and level IX hearing acuity in his left ear. CONCLUSION OF LAW The criteria for a rating in excess of 20 percent prior to June 15, 2021 and a rating in excess of 50 percent thereafter for bilateral hearing loss are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.3, 4.7, 4.85, Diagnostic Code (DC) 6100, 4.86. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Navy from November 1955 to August 1957. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In July 2010, the RO denied a rating in excess of 20 percent for the Veteran's bilateral hearing loss. The Veteran filed a timely November 2010 Notice of Disagreement (NOD), a Statement of the Case (SOC) was issued in July 2012, and in August 2012 the Veteran filed a substantive appeal. See August 2012 VA Form 9. On July 2, 2013, the Veteran submitted an "Appeal Cancellation Form" and selected the box indicating that he wanted to cancel his appeal. Notably, the Veteran hand-wrote that he wanted to cancel his travel board hearing and wanted a new bilateral hearing loss examination. The RO canceled the Veteran's appeal and accepted his request for a new examination as an additional claim for increase. In an April 2014 rating decision, the Veteran's bilateral hearing loss was continued as 20 percent disabling. In March 2015, the RO proposed to reduce the Veteran's hearing loss rating from 20 percent disabling to 10 percent disabling. In September 2015, the RO finalized the reduction, and the Veteran filed an additional NOD. See December 2015 NOD. In July 2018, the Board issued a decision finding that the reduction was proper and denied an increased rating. The Veteran thereafter appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In an Order dated in April 2019, the Court granted the parties' Joint Motion for Remand (JMR) to vacate the Board's decision and remand the case for readjudication in accordance with the JMR. Notably, the JMR found that the Board erred in failing to discuss whether the April 2010 appeal was explicitly, unambiguously, and with a full understanding of the consequences withdrawn by the Veteran. In April 2020, the Board found that the Veteran did not effectuate a withdrawal of his appeal regarding the April 2010 rating decision and remanded the issue of whether the reduction was proper and the assigned rating for bilateral hearing loss for additional development. See Acree v. O'Rourke, 891 F.3d 1009 (Fed. Cir. 2018). In a July 2021 Supplementary Statement of the Case (SSOC), the RO increased the Veteran's rating for bilateral hearing loss to 50 percent disabling effective June 15, 2021 and an accompanying rating decision restored the 20 percent rating reduced in the September 2015 rating decision. Thus, the only issue remaining is whether the Veteran is entitled to a rating in excess of 20 percent prior to June 15, 2021 and in excess of 50 percent thereafter. This matter has been advanced on the docket pursuant to 38 C.F.R. § 20.902. The Veteran asserts that his bilateral hearing loss warrants a higher rating throughout the appeal period. See November 2010 and December 2015 NODs. The assignment of a disability rating for a hearing impairment is derived by a purely mechanical application of the rating schedule to the numeric designations derived from the results of audiometric evaluations. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). 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. Examinations will be conducted without the use of hearing aids. 38 C.F.R. § 4.85. Thus, any examination for hearing impairment that does not contain Maryland CNC testing is, by law, inadequate for rating purposes unless the examiner certifies that use of the speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc., or when indicated under the provisions of §4.86. 38 C.F.R. § 4.85(c). Evaluations of bilateral defective hearing range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests, together with the average hearing threshold level as measured by puretone audiometric tests at the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hertz). To evaluate the degree of disability from bilateral defective hearing, the rating schedule establishes 11 auditory acuity levels designated from level I, for essentially normal acuity, through level XI, for profound deafness. 38 C.F.R. §§ 4.85, 4.87, Tables VI and VII. When the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more, 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. 38 C.F.R. § 4.86(a). When the puretone 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. That numeral will then be elevated to the next higher Roman numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86(b). Table VIa, "Numeric Designation of Hearing Impairment Based Only on Puretone Threshold Average," is used to determine a Roman numeral designation (I through XI) for hearing impairment based only on the puretone threshold average. Table VIa will be used when the examiner certifies that use of the speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc., or when indicated under the provisions of Section 4.86. 38 C.F.R. § 4.85(c). Staged ratings are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct time periods during the course of the appeal. Fenderson v. Brown, 12 Vet. App. 119, 126-127 (1999). Throughout the appeal period, the Veteran submitted to VA audiometric examinations in May 2010, March 2014, March 2015, June 2016, and June 2021. The May 2010 VA examiner explained that the results collected were invalid as the Veteran could not properly complete testing. Thus, the May 2010 VA examination is inadequate for rating purposes. At the March 2014 VA examination, the Veteran reported that he could not hear at all without hearing aids. The March 2014 VA audiologist recorded the following findings: HERTZ 1000 2000 3000 4000 Average RIGHT 45 75 75 80 69 LEFT 50 75 80 80 71 Maryland CNC speech discrimination testing revealed a speech recognition ability of 88 percent in each ear. When applied to Table VI, the right ear generates the Roman numeral III and left ear generates Roman numeral III. When these are applied to Table VII, the Veteran's hearing loss generates a noncompensable (0 percent) rating; however, the Board will not disturb the Veteran's favorable compensable rating for this period. These audiometric findings also do not qualify as an exceptional pattern per 38 C.F.R. § 4.86. The March 2015 VA audiologist recorded the following findings: HERTZ 1000 2000 3000 4000 Average RIGHT 50 70 90 90 75 LEFT 65 70 80 85 75 Maryland CNC speech discrimination testing revealed a speech recognition ability of 92 percent in each ear. When applied to Table VI, each ear generates a Roman numeral II. When these findings are applied to Table VII, the Veteran's hearing loss generates a noncompensable rating. These audiometric findings do not qualify as an exceptional pattern in the right ear, but do qualify as exceptional pattern in the left ear, per 38 C.F.R. § 4.86. When the Veteran's left ear findings are applied to Table VIA, this results in a Level VI hearing impairment; when combined with the right ear (Level II), this results in a 10 percent rating; however, the Board will not disturb the Veteran's favorable 20 percent rating for this period. The March 2015 audiological examiner opined that the Veteran's hearing loss would have no functional impact on the Veteran's activities of daily living, to include working. In June 2016, the Veteran submitted to another audiological examination where he reported difficulty understanding speech. The VA audiologist opined that the Veteran's responses to the audiometric tone testing were too inconsistent to be reliably reported. Thus, the June 2016 VA examination report is of no probative value. On June 15, 2021, the Veteran reported to the VA audiologist that he cannot hear very well in any situation. The June 2021 VA audiologist recorded the following findings: HERTZ 1000 2000 3000 4000 Average RIGHT 85 85 95 95 90 LEFT 95 95 95 95 95 Maryland CNC speech discrimination testing revealed a speech recognition ability of 76 percent in the right ear and 50 percent in the left ear. When applied to Table VI, the right ear generates a Roman numeral V and the left ear generates a Roman numeral IX. When these are applied to Table VII, the Veteran's hearing loss generates a 40 percent rating. However, these audiometric findings qualify as an exceptional pattern per 38 C.F.R. § 4.86. When the audiometric averages are applied to Table VIA, the right ear generates a Roman numeral VII and the left ear generates a Roman numeral IX. When applied to Table VII, the Veteran's bilateral hearing loss is rated as 50 percent disabling. 38 C.F.R. § 4.7, 4.86(a). Additionally, the Veteran submitted a May 2015 private audiological examination. While the audiogram contained puretone threshold responses, the speech audiometry testing was not conducted utilizing the Maryland Consonant-Vowel-Nucleus-Consonant Test required by VA regulations. 38 C.F.R. § 4.85(a). Thus, the private May 2015 audiogram is inadequate for rating purposes. In November 2015, a private audiologist wrote a letter on the Veteran's behalf and described the Veteran's bilateral sensorineural hearing loss as severe to profound. While demonstrative that the Veteran's hearing loss had not improved over time, disability ratings for hearing impairment are derived by a purely mechanical application of the rating schedule. See Lendenmann, supra. In an April 2015 lay statement, S.K.D. reported that the Veteran has difficulty understanding her if she is in another room, that he cannot understand the television no matter how loud it is, and that the Veteran's hearing loss had worsened from approximately 2012 to 2015. The Board has considered the Veteran's contentions that his hearing is worse than testing indicated. In Martinak v. Nicholson, 21 Vet. App. 447 (2007) the Court addressed a challenge to VA's audiological testing practices, specifically, whether VA's policy of conducting all audiometry testing of hearing-loss claimants in a sound-controlled room was valid. The Court also addressed the requirements for an adequate VA audiological examination report. The Court upheld VA's policy of conducting audiometry testing in a sound-controlled room. The Court also held that, in 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. As noted above, the March 2014, March 2015 and June 2021 audiological evaluation reports addressed functional impairment and therefore complied with Martinak. The above evidence reflects that the criteria for a rating higher than 20 percent prior to June 15, 2021 and in excess of 50 percent thereafter for bilateral hearing loss were not met at any point during the appeal period. 38 C.F.R. § 3.400(o)(2); see also Fenderson, supra. As to consideration of referral for extraschedular rating, the Veteran has not asserted, and the evidence does not reflect, that he has experienced symptoms outside of those listed in the rating criteria. Doucette v. Shulkin, 28 Vet. App. 366, 371-72 (2017) (difficulty in distinguishing sounds in a crowded environment, locating the source of sounds, understanding speech, which is contemplated by the schedular rating criteria for hearing loss). For the foregoing reasons, the preponderance of the evidence is against a rating in excess of 20 percent prior to June 15, 2021 and in excess of 50 percent thereafter for bilateral hearing loss. The benefit of the doubt doctrine is therefore not for application and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. S. BUSH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Rouse, 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.