Citation Nr: 21064810 Decision Date: 10/21/21 Archive Date: 10/21/21 DOCKET NO. 16-00 308A DATE: October 21, 2021 ORDER The December 2020 Board decision is vacated to the extent it awarded a 10 percent rating for right ear hearing loss from November 26, 2019. Entitlement to a 10 percent rating prior to November 26, 2019, and a 20 percent rating thereafter for bilateral hearing loss is granted. FINDINGS OF FACT 1. The December 2020 Board decision failed to consider the Veteran's exceptional hearing pattern under Table VIA, which would have awarded him a higher rating. 2. Prior to November 26, 2019, audiological testing showed the Veteran's right ear hearing loss was no worse than Level II; and his left ear was no worse than Level V. 3. From November 26, 2019, audiological testing showed the Veteran's hearing loss was no worse than Level V in each ear. CONCLUSIONS OF LAW 1. The criteria to vacate the December 2020 Board decision, to the extent it awarded a 10 percent rating for right ear hearing loss, have been met. 38 U.S.C. § 7104(a); 38 C.F.R. § 20.904. 2. The criteria for a 10 percent rating prior to November 26, 2019 and a 20 percent rating thereafter for right ear hearing loss have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 3.321, 4.1-4.10, 4.85, 4.86. Diagnostic Code 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the U.S. Air Force from November 1972 to August 1978, with the U.S. Army from September 1986 to January 1987, from May 1999 to December 1999, from September 2005 to July 2007, from February 2008 to August 2009, and finally from May 2010 to May 2013. The Veteran and his wife testified at a Travel Board hearing in July 2019 before the undersigned Veterans Law Judge; a transcript of the hearing is associated with the record. In September 2019, the Board remanded the appeal to schedule the Veteran for VA examinations for updated results. The August 2020 rating decision awarded a 10 percent rating for service-connected GERD from August 7, 2019. The Board is aware that the Veteran is service connected for both right and left ear hearing loss, and that his right ear hearing loss is the only ear on appeal. However, the left ear hearing loss is part and parcel to the increased rating claim for the right ear hearing loss. Therefore, the Board will consider both ears in determining the proper rating for his bilateral hearing loss. Order to Vacate The Board may vacate an appellate decision at any time upon request of the appellant or his or her representative, or on the Board's own motion, when an appellant has been denied due process of law or when benefits were allowed based on false or fraudulent evidence. 38 U.S.C. § 7104(a); 38 C.F.R. § 20.904. Here, in its December 2020 decision, the Board failed to consider the Veteran's exceptional hearing pattern under Table VIA, which would have awarded him a higher rating. The Board's December 2020 decision denied the Veteran his due process rights by failing to consider all available avenues to increase his hearing loss rating. Accordingly, the Board finds that it is proper to vacate the December 2020 decision addressing the above increased rating claim. 38 C.F.R. § 3.109(b). Increased Rating 1. Entitlement to a compensable rating for right ear hearing loss. Ratings of hearing loss range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of speech discrimination tests combined with the average hearing threshold levels as measured by pure tone audiometry tests in the frequencies 1000, 2000, 3000, and 4000 cycles per second. To rate the degree of disability for service-connected hearing loss, the Rating Schedule has established eleven auditory acuity levels, designated from level I, for essentially normal acuity, through level XI, for profound deafness. 38 C.F.R. § 4.85, Diagnostic Code 6100, Table VI. To establish entitlement to an increased rating for hearing loss, it must be shown that certain minimum levels of the combination of the percentage of speech discrimination loss and average pure tone decibel loss are met. The assignment of disability ratings for hearing impairment is derived by a mechanical application of the Rating Schedule to the numeric designations assigned after audiometric evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). The criteria for rating hearing impairment use controlled speech discrimination tests (Maryland CNC) together with the results of pure tone audiometry tests. These results are then charted on Table VI, Table VIA in exceptional cases as described in 38 C.F.R. § 4.86, and Table VII, as set out in the Rating Schedule. 38 C.F.R. § 4.85. An exceptional pattern of hearing loss occurs when the pure tone threshold at 1000, 2000, 3000, and 4000 Hertz is 55 decibels or more, or when the pure tone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz. 38 C.F.R. § 4.86. Treatment records show the Veteran uses hearing aids. The Veteran underwent private hearing exams in January and September 2017. However, the examiners failed to indicate whether the Maryland CNC was used for speech recognition. Therefore, they cannot be used to rate the Veteran's hearing loss. On the authorized audiological evaluation in April 2014, pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 avg RIGHT 50 65 65 70 63 LEFT 65 65 70 70 68 Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 90 percent in the left ear. Tympanometry findings were normal. The Veteran reported difficulty hearing speech. Findings show the Veteran has an exceptional pattern of hearing impairment in his left ear, as such it will be evaluated under both Table VIA and Table VI listed in 38 C.F.R. § 4.85. Utilizing Table VI, the above audiological findings show Level II acuity in the right ear and Level III in the left ear. The combined numeric designations of Level II for the service-connected right ear and Level III for the left ear warrant a zero percent rating under Table VII. Utilizing Table VIA for the left ear, the above findings show Level V hearing. Combining Level V in the left ear with Level II for the right ear, warrants a 10 percent rating under Table VII. On the authorized audiological evaluation in November 2019, pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 avg RIGHT 60 65 70 75 68 LEFT 60 60 65 70 64 Speech audiometry revealed speech recognition ability of 80 percent in both ears. Tympanometry findings related to ipsilateral and contralateral acoustic reflexes were abnormal. As for his daily life, the Veteran indicated he was unable to use the phone, had to use closed caption when watching TV and was unable to converse with anyone outside of his home due to his hearing loss. His wife was necessary for almost everything. These findings show the Veteran has an exceptional pattern of hearing impairment in both ears. Utilizing Table VI, the above audiological findings show Level IV acuity in the right ear and Level IV in the left ear. The combined numeric designations of Level IV for the service-connected right ear and Level IV for the left ear warrant a 10 percent rating under Table VII. Utilizing Table VIA, the above findings show Level V hearing in both the right and left ears. Combining Level V for both ears, warrants a 20 percent rating under Table VII. Although only the increased rating for the right ear hearing loss is on appeal, the Veteran is also in receipt of service connection for left ear hearing loss. They are intertwined; hence, the Board has reviewed the thresholds of both ears in reaching this conclusion. (Continued on the next page) As such, a 10 percent rating prior to November 26, 2019, and 20 percent rating thereafter, is warranted for bilateral hearing loss. H.M. WALKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Price, Esq. 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.