Citation Nr: 21065672 Decision Date: 10/27/21 Archive Date: 10/27/21 DOCKET NO. 16-01 291 DATE: October 27, 2021 ORDER Prior to June 15, 2021, an initial compensable rating for bilateral hearing loss is denied. From June 15, 2021, a rating in excess of 30 percent for bilateral hearing loss is denied. FINDINGS OF FACT 1. Prior to June 15, 2021, the Veteran had no worse than Level III auditory acuity in the right ear and Level III auditory acuity in the left ear; he did not have an exceptional pattern of hearing loss during this time period. 2. From June 15, 2021, the Veteran had no worse than Level V auditory acuity in the right ear and Level VII auditory acuity in the left ear; an exceptional pattern of hearing loss was not shown during this time period. CONCLUSIONS OF LAW 1. Prior to June 15, 2021, the criteria for an initial 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 June 15, 2021, the criteria for a rating in excess of 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 from June 1971 to July 1979 and from April 1981 to December 1984. This case is before the Board of Veterans' Appeals (Board) on appeal from a February 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously remanded for additional development in August 2018 and February 2021 Board decisions. The Board finds that there has been substantial compliance with those remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with its remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only substantial rather than strict compliance with the Board's remand directives is required under Stegall). During the pendency of the appeal, by way of an August 2021 rating decision, the RO increased the Veteran's rating for his bilateral hearing loss to 30 percent disabling effective June 15, 2021. Increased Rating for Hearing Loss Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The Rating Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Evaluations of defective hearing range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of a controlled Maryland CNC speech discrimination test together with the average hearing threshold level measured by pure tone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hertz). 38 C.F.R. § 4.85, Diagnostic Code 6100. To evaluate the degree of disability from bilateral service-connected hearing loss, the schedule establishes 11 auditory hearing acuity levels designated from Level I for essentially normal hearing acuity through Level XI for profound deafness. Table VI is used to determine the Roman numeric designation, based on test results consisting of pure tone thresholds and Maryland CNC test speech discrimination scores. The numeric designations are then applied to Table VII to determine the appropriate rating for hearing impairment. 38 C.F.R. § 4.85, Tables VI and VII. 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. Further, when the average pure tone 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, and that numeral will then be elevated to the next higher numeral. 38 C.F.R. § 4.86(b). Ratings for hearing impairment are 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 (1992). This appeal arises from the original assignment of a disability evaluation following an award of service connection, thus the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. Separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). The Veteran is seeking an increased evaluation for his bilateral hearing loss on the basis that his hearing loss is worse than his current disability rating indicates. As will be demonstrated below, the Board finds that a preponderance of the evidence is against an award of an initial compensable rating for bilateral hearing loss prior to June 15, 2021, or a rating in excess of 30 percent for bilateral hearing loss since that time. 1. Entitlement to an initial compensable rating for bilateral hearing loss prior to June 15, 2021 A June 2011 private audiological examination reflects the following pure tone thresholds, in decibels: June 2011 HERTZ 1000 2000 3000 4000 Avg RIGHT 15 35 45 75 42.5 LEFT 25 35 55 80 48.75 This audiological examination by B.T., M.D. noted that speech discrimination scores were 100 percent in both ears but did not specify whether the Maryland CNC test was used to obtain these scores. Initially, the Board notes that this June 2011 audiological examination is outside the period on appeal before the Board. Nevertheless, as it was the subject of a February 2021 Board remand, it will be discussed herein. In this case, further development was undertaken to determine whether the Maryland CNC Test was used by the June 2011 private audiological examiner, Dr. T. See Savage v. Shinseki, 24Vet. App. 259, 270 (2011). However, this information could not be obtained because Dr. T. had retired and his records that were more than seven years old had been destroyed. See March 2021 Correspondence from the Veteran and April 2021 VA Form 27-0820 Report of General Information. Consequently, because it is unclear whether the Maryland CNC was used to obtain the speech recognition scores, these scores cannot be utilized for rating purposes. The Board notes that if an exceptional pattern of hearing loss is shown, the Hertz decibel readings from non-Maryland CNC evaluations can be applied to Table VIA for rating purposes. In this case, the June 2011 private audiological examination does not reflect an exceptional pattern of hearing impairment under 38 C.F.R. § 4.86. Further, even if the Maryland CNC test was used during this June 2011 examination to obtain speech discrimination scores, the result would still be a noncompensable evaluation for the Veteran. At a January 2013 VA examination, the Veteran reported that his hearing loss impacted his daily life, noting that he often asks people to repeat themselves, especially for soft talkers. 38 C.F.R. § 4.10; Martinak v. Nicholson, 21 Vet. App. 447 (2007). The Veteran's Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: January 2013 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 15 35 50 80 45 96 LEFT 20 40 55 80 48.75 98 Applying the results to Table VI, the findings yield a numeric designation of Level I in the right ear and Level I in the left ear. Entering the resulting bilateral numeric designation of Level I for the right ear and Level I for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a 0 percent (noncompensable) disability rating under Diagnostic Code 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. In August 2015, the Veteran was afforded an audiological assessment at the Martinsburg VA Medical Center. The Veteran's Maryland CNC Word List speech recognition scores and pure tone thresholds, in decibels, were as follows: August 2015 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 20 35 50 75 45 96 LEFT 20 35 50 70 43.75 88 Applying the results to Table VI, the findings yield a numeric designation of Level I in the right ear and Level II in the left ear. Entering the resulting bilateral numeric designation of Level I for the right ear and Level II for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a 0 percent (noncompensable) disability rating under Diagnostic Code 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. At an April 2017 VA examination, the Veteran reported that his hearing loss impacts his daily life, explaining that he has a difficult time hearing conversations and hearing alarms. 38 C.F.R. § 4.10; Martinak v. Nicholson, 21 Vet. App. 447 (2007). The Veteran's Maryland CNC Word List speech recognition scores and pure tone thresholds, in decibels, were as follows: April 2017 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 25 45 60 85 54 96 LEFT 25 45 60 80 53 90 Applying the results to Table VI, the findings yield a numeric designation of Level I in the right ear and Level II in the left ear. Entering the resulting bilateral numeric designation of Level I for the right ear and Level II for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a 0 percent (noncompensable) disability rating under Diagnostic Code 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. In a June 2021 statement, the VA examiner who conducted this April 2017 VA examination, noted that the Veteran's speech recognition score in the left ear, which was 90 percent, was obtained with the use of the modified performance intensity function. See June 2021 C&P examination note by C.F., Au.D. At a November 2020 VA examination, the Veteran reported difficulty hearing and understanding speech in all communication environments, including quiet and noisy environments and in group settings. 38 C.F.R. § 4.10; Martinak v. Nicholson, 21 Vet. App. 447 (2007). The Veteran's Maryland CNC Word List speech recognition scores and pure tone thresholds, in decibels, were as follows: November 2020 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 35 55 65 85 60 84 LEFT 50 55 70 80 64 84 Applying the results to Table VI, the findings yield a numeric designation of Level III in the right ear and Level III in the left ear. Entering the resulting bilateral numeric designation of Level III for the right ear and Level III for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a 0 percent (noncompensable) disability rating under Diagnostic Code 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. In a June 2021 opinion, an audiologist noted that after reviewing the November 2020 VA Form 10-2364, audiological evaluation, modified performance intensity function testing was completed accurately in the left ear. The examiner also explained that although the notes from the November 2020 VA examination do not indicate why the right ear was not tested at further decreased presentation levels when the speech recognition was below 92 percent, it was possible that there was no room for a +6 percent improvement at the half list and this was why further testing was not completed. The VA examiner noted that VA does not require documentation of procedure other than listing the test results, so this does not necessarily indicate that proper procedure was not followed. In sum, as just demonstrated, a compensable rating for bilateral hearing loss is not shown by the audiological examinations of record prior to June 15, 2021. 2. Entitlement to a rating in excess of 30 percent for bilateral hearing loss since June 15, 2021 A June 2021 VA examination reveals that the Veteran reported difficulty understanding speech when he cannot see lips. 38 C.F.R. § 4.10; Martinak v. Nicholson, 21 Vet. App. 447 (2007). The Veteran's Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: June 2021 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 30 45 65 80 55 74 LEFT 40 60 70 90 65 56 Applying the results to Table VI, the findings yield a numeric designation of Level V in the right ear and Level VII in the left ear. Entering the resulting bilateral numeric designation of Level V for the right ear and Level VII for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a 30 percent disability rating under Diagnostic Code 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. The audiologist noted that when conducting this June 2021 audiometric exam, testing and evaluation procedure for speech understanding followed VA guidelines. Regarding modified performance intensity function testing, the Board notes that VA Form 10-2364 is of record to verify that this testing was completed at the June 2021 exam. The VA examiner explained the procedure for obtaining the modified performance intensity function for the right ear, noting that the Veteran's speech was not further evaluated at a decreased presentation level of 65 dB because the Veteran's performance at the half list for presentation level 75 dB was 76 percent, and when compared to half list performance at 70 dB of 80 percent, performance was not improved by 6 percent. Therefore, the final 50-word list performance was completed at 75 dB with a score of 74 percent. A July 2021 audiological assessment at the Martinsburg VA Medical Center reflects the following Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels: July 2021 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 30 45 60 85 55 92 LEFT 30 45 65 80 55 88 Applying the results to Table VI, the findings yield a numeric designation of Level I in the right ear and Level II in the left ear. Entering the resulting bilateral numeric designation of Level I for the right ear and Level II for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a 0 percent (noncompensable) disability rating under Diagnostic Code 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. The Board expressly acknowledges its consideration of the lay evidence of record when adjudicating this claim, including the Veteran's statements that he has difficulty understanding people in all settings, quiet and loud and over the phone, as well as trouble hearing the television. The Veteran is competent to report difficulty with his hearing; however, disability ratings for hearing loss are derived from a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). (Continued on the next page) The rating criteria contemplate speech reception thresholds and ability to hear spoken words on Maryland CNC testing. The functional impact that the Veteran describes, is contemplated by the rating criteria. Doucette v. Shulkin, 28 Vet. App. 366 (2017). The Veteran's main complaint is reduced hearing acuity and clarity, which is what is contemplated in the rating assigned. See Rossy v. Shulkin, 29 Vet. App. 142, 145 (2017). Accordingly, the preponderance of the evidence is against finding entitlement to an initial compensable rating for bilateral hearing loss prior to June 15, 2021, and a rating in excess of 30 percent since that time. In reaching the conclusion above, the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Jennifer White Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Alison M. Mecone, 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.