Citation Nr: 21063684 Decision Date: 10/15/21 Archive Date: 10/15/21 DOCKET NO. 15-12 903 DATE: October 15, 2021 ORDER For the period prior to August 27, 2015, entitlement to a compensable disability rating for bilateral hearing loss is denied. FINDING OF FACT Prior to August 27, 2015, the Veteran has had no worse than level IV hearing loss in the right ear and level II hearing loss in the left ear. CONCLUSION OF LAW Prior to August 27, 2015, the criteria for entitlement to a compensable disability rating for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321(b)(1), 4.3, 4.10, 4.85, Diagnostic Code 6100 REASONS AND BASES FOR FINDING AND CONCLUSION This matter came to the Board of Veterans' Appeals (Board) from a December 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office, which denied entitlement to an increased compensable rating for bilateral hearing loss. In a January 2016 rating decision, a 30 percent disability rating was assigned, effective August 27, 2015. In September 2018, the Veteran testified at a hearing before the Board; the transcript is of record. In May 2019, the issue was remanded for further development. In an April 2020 rating decision, a 100 percent disability rating was assigned, effective November 18, 2019, and special monthly compensation (SMC) due to deafness in both ears was granted, effective November 18, 2019. Such constituted a full grant of the benefit sought on appeal with regard to the period from November 18, 2019. AB v. Brown, 6 Vet. App. 35 (1993). In July 2020, the issue was remanded for further development. In June 2021, the Board denied entitlement to a disability rating in excess of 30 percent for the period from August 25, 2017 to November 17, 2019 and remanded the issue of entitlement to a compensable rating for the period prior to August 25, 2017. Such issue was remanded to associate with the virtual claims folder the audiograms associated with the February 8, 2013 audiological assessment and March 1, 2013 audiological assessment. In August 2021, the February 2013 audiogram was associated with the claims folder. Per an August 2021 VA Form 27-0820 Report of General Information, the VA audiological department indicated that the March 2013 evaluation was not an audiological assessment but rather a hearing aid fitting. Increased Rating Disability evaluations are determined by the application of the Schedule For Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Disability ratings are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. The Rating Schedule provides a table for ratings purposes (Table VI) to determine a Roman numeral designation (I through XI) for hearing impairment, established by a state-licensed audiologist including a controlled speech discrimination test (Maryland CNC), and based upon a combination of the percent of speech discrimination and the puretone threshold average which is the sum of the puretone thresholds at 1000, 2000, 3000 and 4000 Hertz, divided by four. 38 C.F.R. § 4.85. Table VII is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment of each ear. The horizontal row represents the ear having the poorer hearing and the vertical column represents the ear having the better hearing. Id. 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. 38 C.F.R. § 4.86(b). To evaluate the degree of disability from defective hearing, the rating schedule establishes eleven auditory acuity levels designated from "I" for essentially normal acuity, through "XI" for profound deafness. 38 C.F.R. § 4.85, Tables VI, VII. A noncompensable evaluation is provided where hearing in the better ear is I and hearing in the poorer ear is I through IX; where hearing in the better ear is II, and hearing in the poorer ear is II to IV; or where there is level III hearing in both ears. A 10 percent disability rating is warranted where hearing in the better ear is I, and hearing in the poorer ear is X to XI; or where hearing in the better ear is II, and hearing in the poorer ear is V to XI; or where hearing in the better ear is III, and hearing in the poorer ear is IV to VI. 38 C.F.R. § 4.85, Table VII, Diagnostic Code 6100. Pertinent case law provides that the assignment of disability ratings for hearing impairment are to be derived by the mechanical application of the Ratings Schedule to the numeric designations assigned after audiometry evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345 (1992). In February 2013, the Veteran underwent a VA audiological evaluation. See 08/17/2021 CAPRI & 03/17/2021 CAPRI. Pure-tone thresholds for the ears were as follows: HERTZ 1000 2000 3000 4000 RIGHT 30 60 65 70 LEFT 30 50 50 50 The pure tone average in the right ear was 56 decibels and 45 decibels in the left ear. Speech audiometry was not reported; as such the results are not valid for rating purposes. In any event, such findings translate to level IV hearing in the right ear and level II hearing in the left ear. 38 C.F.R. § 4.85, Table VIA. Applying Table VII, Diagnostic Code 6100, this equates to a 0 (zero) percent disability rating. In May 2013, the Veteran underwent a VA audiological evaluation. Pure-tone thresholds for the ears were as follows: HERTZ 1000 2000 3000 4000 RIGHT 30 55 65 70 LEFT 25 45 55 65 The pure tone average in the right ear was 55 decibels in the right ear and 50 decibels in the left ear. Speech audiometry was 84 percent in the right ear and 96 percent in the left ear. Such findings translate to level II hearing in the right ear and level I hearing in the left ear. 38 C.F.R. § 4.85, Table VI. Applying Table VII, Diagnostic Code 6100, this equates to a 0 (zero) percent disability rating. Based on the above, the Board finds that a compensable disability rating is not warranted for the period prior to August 27, 2015. The rating criteria are intended to compensate for the impairment resulting from the hearing loss disability. 38 C.F.R. §§ 4.1, 4.85. Any manifestations of difficulty hearing or understanding speech are contemplated by the schedular criteria for hearing loss. Doucette v. Shulkin, 28 Vet. App. 366, 371-72 (2017). However, the pertinent and objective evidence of hearing impairment does not approximate the criteria for a compensable disability rating. Lendenmann, 3 Vet. App. at 349 (noting that when VA assigns a schedular disability rating to a veteran's hearing loss, it generally is required by law to base its decision entirely on audiometric testing results); 38 C.F.R. § 4.85, Tables VI and VII, Diagnostic Code 6100. Applying the audiologic test results most favorable to the Veteran to the regulatory criteria, the Board is compelled to conclude that the preponderance of the evidence is against a compensable rating for the period prior to August 27, 2015. The United States Court of Appeals for Veterans Claims (Court) discussed extraschedular consideration in the context of bilateral hearing loss: [T]he Court holds that the [schedular] 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. Thus, when 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. However, as the rating criteria do not otherwise discuss, let alone account for, other functional effects, such as dizziness, vertigo, ear pain, etc., the Court cannot conclude that the rating schedule, on its face, contemplates effects other than difficulty hearing or understanding speech. Doucette v. Shulkin, 28 Vet. App. 366, 369 (2017). The Court further noted that "a hearing loss claimant could provide evidence of numerous symptoms, includingfor purposes of example onlyear pain, dizziness, recurrent loss of balance, or social isolation due to difficulties communicating, and the Board would be required to explain whether the rating criteria contemplate those functional effects." Id. at 371. While recognizing any functional effects and limitations associated with his hearing loss, in consideration of Doucette, the Board finds that the schedular rating contemplates the effects of the Veteran's service-connected bilateral hearing loss as they are related to functional effects of decreased hearing. In summary, for the reasons and bases expressed above, the Board has concluded that a compensable disability rating for the period prior to August 27, 2015 is not warranted; the appeal is denied. Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M.W. Kreindler, 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.