Citation Nr: 21067221 Decision Date: 11/03/21 Archive Date: 11/03/21 DOCKET NO. 20-26 867 DATE: November 3, 2021 ORDER Entitlement to a compensable disability rating for bilateral hearing loss prior to February 12, 2021 is denied. Entitlement to a 10 percent disability rating for bilateral hearing loss beginning February 12, 2021 is granted. A disability rating in excess of 10 percent for bilateral hearing loss from February 12, 2021 is denied. FINDINGS OF FACT 1. Prior to May 13, 2021, the Veteran's hearing acuity was at worst Level II bilaterally. 2. At his February 12, 2021 hearing, it was factually ascertainable that the Veteran's hearing loss had increased in severity. 3. Beginning May 13, 2021, the Veteran's hearing acuity is at worst Level IV bilaterally. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 0 percent for bilateral hearing loss prior to February 12, 2021 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. The criteria for a 10 percent rating for bilateral hearing loss, but no higher, were met beginning February 12, 2021. 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 in the United States Army from October 1966 to October 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a September 2018 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a Board hearing in February 2021. A transcript of the hearing is associated with the record. In March 2021, the Board remanded the issue on appeal for additional development and the case now returns for further appellate review. The Board also remanded a claim for service connection for a skin condition for additional development. In a July 2021 rating decision, the RO granted service connection for the Veteran's skin condition. Because the benefit was granted in full, that issue is no longer before the Board. In its March 2021 remand, the Board directed that the Veteran be provided with an updated examination to determine the severity of his bilateral hearing loss. He underwent a VA examination for his hearing loss in May 2021. It was adequate because it contained valid audiometric testing, a description of the Veteran's lay statements, and because it described his hearing loss in detail sufficient to allow the Board to make a fully informed determination. There was substantial compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). 1. Bilateral hearing loss In the September 2018 rating decision on appeal, the RO continued a noncompensable rating for the Veteran's bilateral hearing loss. The rating was subsequently increased to 10 percent, effective May 13, 2021, based on the May 2021 VA examination. In the September 2021 Informal Hearing Presentation, the Veteran's representative stated that the Veteran seeks a rating higher than 10 percent but stated that the Veteran has no additional evidence to submit in his case. 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 Hertz. To rate the degree of disability for 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(h), Table VI. 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, or Table VIA in exceptional cases as described in 38 C.F.R. § 4.86, and Table VII. 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 (2016). In such cases, the Roman numeral value is determined using both Table VI and VIA and whichever table results in a higher Roman numeral value is used to calculate a disability evaluation using Table VII. Id. The Veteran underwent a VA examination in August 2018. At the examination, he described the impact of his hearing loss on his daily life and ability to work as "hav[ing] issues hearing," and that it was a problem for "a long time." 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: HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 50 65 60 70 61 96 LEFT 45 70 60 70 61 96 The puretone threshold average was 61 decibels bilaterally. The Maryland CNC speech discrimination test revealed speech recognition ability of 96 percent bilaterally. Applying the results to Table VI, the findings yield a numeric designation of Level II in the right ear and Level II in the left ear. Entering the resulting bilateral numeric designation of Level II 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 disability rating under Diagnostic Code 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. The Veteran credibly stated that he had problems hearing. Although his lay statement is competent and credible, this type of functional impact is contemplated by the rating criteria. Doucette v. Shulkin, 28 Vet. App. 366 (2017). The Veteran's symptom is reduced hearing acuity and clarity, which is what was contemplated in the noncompensable rating that was assigned. See Martinak, 21 Vet. App. 447. At his February 12, 2021 hearing, the Veteran credibly testified that his hearing had gotten worse since his August 2018 examination. For example, he stated that he had to turn the volume on the television up louder and had to hear a woman's voice he had to also use his hearing aids. At his May 2021 VA examination, the Veteran reported he has to turn up the television to hear programs, he has difficulty hearing noises, telephone conversations, and women's voices. 38 C.F.R. § 4.10; Martinak, 21 Vet. App. 447. The Veteran's Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 55 65 60 65 61 100 LEFT 55 65 60 65 61 100 The puretone threshold average was 61 decibels bilaterally. The Maryland CNC speech discrimination test revealed speech recognition ability of 100 percent bilaterally. Applying the results to Table VI, the findings yield a numeric designation of Level II in the right ear and Level II in the left ear. Entering the resulting bilateral numeric designation of Level II for the right ear and Level II for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a noncompensable disability rating under Diagnostic Code 6100. However, an exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was shown by the decibel level scores of 55 at all four frequencies bilaterally. Applying the results to Table VIA yields Level IV in the right ear and Level IV in the left ear. Entering the resulting bilateral numeric designation of Level IV for the right ear and Level IV for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a 10 percent disability rating under Diagnostic Code 6100. Here, use of Table VIA is most favorable to the Veteran. The Veteran's descriptions of the functional impact of his hearing loss at his May 2021 VA examination and at his February 2021 Board hearing are competent and credible. The functional impact he describes: difficulty hearing noises, needing to turn the television volume up, having problems on the telephone, and having difficulty hearing women's voices, are the types of functional impairment that are contemplated by the rating criteria. Doucette, 28 Vet. App. 366. His main assertion is reduced hearing acuity and clarity, which is contemplated by the 10 percent rating assigned. The May 13, 2021 VA examination was the basis for the grant of the 10 percent rating. For initial rating claims and increased rating claims, "the effective date can be no earlier than the date it was factually ascertainable" that a veteran's disability was diagnosed or worsened. Swain v. McDonald, 27 Vet. App. 219, 224 n. 4 (2015). The effective date should not be "assigned mechanically" as of the date of an examination. Id. at 224. There must be a factual basis for choosing an earlier date. As discussed above, the Veteran testified at his February 12, 2021 hearing that his hearing had gotten worse and provided specific examples. February 12, 2021 is the date that it was factually ascertainable that his hearing loss had increased in severity. Therefore, February 12, 2021 should have been when the 10 percent rating is effective. To this extent, the appeal is granted. D. Martz Ames Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Kathleen M. Fiorillo, 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.