Citation Nr: 21067472 Decision Date: 11/04/21 Archive Date: 11/04/21 DOCKET NO. 17-63 528 DATE: November 4, 2021 ORDER Entitlement to a compensable rating for bilateral hearing loss (previously rated as left ear hearing loss) prior to November 2, 2019, is denied. Entitlement to a 30 percent rating, but no higher, for bilateral hearing loss (previously rated as left ear hearing loss) beginning November 2, 2019, is granted. FINDINGS OF FACT 1. Prior to November 2, 2019, the preponderance of the evidence is against finding that the Veteran's bilateral hearing loss manifested with symptoms to warrant more than a Roman numeral designation of IV for his left ear and a I for the right ear. 2. Beginning November 2, 2019, the evidence is in at least relative equipoise as to whether the Veteran's bilateral hearing loss manifested with symptoms to warrant a Roman numeral designation of VII for his left ear and VI for the right ear. 3. The preponderance of the evidence is against finding that the Veteran's bilateral hearing loss has manifested with symptoms to warrant more than a Roman numeral designation of VII for his left ear and VI for the right ear. CONCLUSIONS OF LAW 1. The criteria for entitlement to a compensable rating for bilateral hearing loss prior to November 2, 2019, 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 entitlement to a 30 percent rating for bilateral hearing loss beginning November 2, 2019, have 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 July 1967 to April 1971. This appeal to the Board of Veterans' Appeals (Board) arose from a November 2015 rating decision issued by the Department of Veterans Affairs (VA). See February 2016 Notice of Disagreement (NOD); November 2017 Statement of the Case (SOC); December 2017 Substantive Appeal (VA Form 9). The Veteran testified before the undersigned Veterans Law Judge in a February 2021 hearing. See February 2021 Hearing transcript. In March 2021, the Board granted the Veteran's claim of entitlement to service connection for right ear hearing loss and remanded the claim of entitlement to an increased rating for his left ear hearing loss to be evaluated as bilateral hearing loss. March 2021 Board Decision. The agency of original jurisdiction (AOJ) granted an increased rating of 30 percent for the Veteran's bilateral hearing loss, effective May 21, 2021. June 2021 Rating Decision. The AOJ denied entitlement to a compensable rating prior to May 21, 2021, and to a rating higher than 30 percent since May 21, 2021. See June 2021 Supplemental Statement of the Case. The case is now back before the Board. The Board recognizes that additional evidence was added to the claims file since the last adjudication by the AOJ. The evidence is largely about his migraines. A February 2021 treatment note indicates that the Veteran was fitted for hearing aids that allow streaming from a TV, which was already reported during the Veteran's February 2021 hearing testimony. The Board finds this evidence is either not new or not pertinent to his claim for an increased rating for hearing loss. Increased Rating Disability ratings are determined by the application of the VA's Schedule for Rating Disabilities. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § Part 4. Ratings for service-connected disabilities are determined by comparing the Veteran's symptoms with criteria listed in VA's Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. See 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Evidence to be considered in the appeal of an initial assignment of a disability rating is not limited to that reflecting the then-current severity of the disorder. Fenderson v. West, 12 Vet. App. 119 (1999). "Staged ratings," or different percentage evaluations for separate periods based on the facts found, may also be awarded. Id. at 126-127. When entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, in Hart v. Mansfield, 21 Vet. App. 505 (2007), the Court held that staged ratings are also appropriate for an increased rating claim that is not on appeal from the assignment of an initial rating when the factual findings show distinct time periods where the service connected disability exhibited symptoms that would warrant different ratings. The Board has considered the entire record, but only the evidence pertinent to the rating criteria and current disability will be discussed. See Gonzales v. West, 218 F. 3d 1378 (Fed. Cir. 2000). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. In this case, the Veteran's bilateral hearing loss is currently evaluated under Diagnostic Code 6100 and rated as noncompensable prior to May 21, 2021, and 30 percent disabling beginning May 21, 2012. November 2015 Rating Decision; June 2021 Rating Decision. Ratings for hearing loss are determined in accordance with the findings obtained on audiometric examinations without the use of hearing aids. 38 C.F.R. § 4.85. Generally, ratings for hearing impairment range from 0 percent to 100 percent based on organic impairment of hearing acuity, as measured by the results of the controlled speech discrimination tests, together with the average hearing threshold level as measured by pure tone audiometry tests in the frequencies 1000, 2000, 3000, and 4000 Hertz. Id. To evaluate the degree of disability from hearing impairment, the rating schedule establishes eleven auditory acuity levels designated from Roman numeral I, for essentially normal acuity, through XI for profound deafness. Id. The results of testing are charted on Table VI and Table VII listed at 38 C.F.R. § 4.85. When the pure tone threshold at each of the four specified frequencies of 1000, 2000, 3000, and 4000 Hertz is 55 decibels or more, or if the pure tone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz, the degree of disability will be evaluated as an exceptional pattern of hearing impairment using Tables VIA and VII. 38 C.F.R. § 4.86. As discussed in more detail below, the Board finds that the Veteran's bilateral hearing loss has manifested with symptoms that are noncompensable prior to November 2, 2019, but warrant a 30 percent rating beginning November 2, 2019. 1. Entitlement to a compensable rating for bilateral hearing loss (previously rated as left ear hearing loss) prior to November 2, 2019. The Veteran asserts entitlement to a higher rating for his bilateral hearing loss due to problems hearing most conversations. See February 2016 NOD. The Veteran relates he needs most people to repeat themselves and has trouble hearing the TV without hearing aids. See id. The Board considered the Veteran's statements about having trouble hearing others and the TV. While the Veteran is competent to report experiencing decreased hearing acuity, he is not competent to state whether his symptoms warrant a specific rating under the Schedule for Rating Disabilities. See Layno v. Brown, 6 Vet. App. 465, 467-69 (1994); Jandreau vs. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Schedule for Rating Disabilities for evaluating hearing impairment requires specific audiological testing and findings. See 38 C.F.R. §§ 4.85, 4.86. While the Board does not doubt the Veteran's testimony about his hearing difficulties, they are not probative for evaluating the specific rating criteria needed to rate his hearing loss. Instead, the Board gives significant probative weight to the audiological evaluations during the period prior to November 2, 2019. The Veteran was afforded an October 2015 VA examination for hearing loss and tinnitus. The VA examiner found the Veteran to have a puretone threshold average of 56 decibels in his right ear with a speech discrimination score of 92 percent. Id. For the left ear, the VA examiner found a puretone threshold average of 69 decibels and a speech discrimination score of 94 percent. Id. There was no exceptional pattern of hearing impairment as defined in 38 C.F.R. § 4.86 for either ear. See id. The October 2015 VA examiner's findings merit the assignment of a Roman numeral I for his right ear hearing loss and a II for his left ear. See 38 C.F.R. § 4.86, Table VI. This equates to a zero percent (noncompensable) rating for the Veteran's bilateral hearing loss. See 38 C.F.R. § 4.85, Table VII. The Veteran was afforded another VA examination in November 2017. That VA examiner found a puretone threshold average of 61 decibels in the Veteran's right ear with a speech discrimination score of 94 percent. November 2017 VA Examination for Hearing Loss and Tinnitus. For the left ear, the VA examiner found a puretone threshold average of 68 decibels and a speech discrimination score of 80 percent. Id. There was no exceptional pattern of hearing impairment as defined at 38 C.F.R. § 4.86 for either ear. Id. The November 2017 VA examiner's findings merit the assignment of a Roman numeral II for his right ear hearing loss and a IV for his left ear. See 38 C.F.R. § 4.86, Table VI. While this shows a worsening of his hearing acuity, it still equates to a zero percent (noncompensable) rating for his bilateral hearing loss. See 38 C.F.R. § 4.85, Table VII. The VA examiner is a medical professional qualified to evaluate the Veteran's hearing acuity and provided a detailed report with findings relevant to the rating criteria. The Board finds the VA examiner's report to be highly probative for these reasons. The Board also considered the June 2015 audiometric evaluation provided by the Veteran's VA treatment provider. Those audiometric findings show a right ear puretone threshold average of 60 decibels with 92 percent speech discrimination and a left ear average of 67.5 decibels with 96 percent. Id. These results merit the assignment of a Roman numeral II for the Veteran's right and left ear hearing loss and a noncompensable rating. Accordingly, the Board finds that the preponderance of the probative evidence is against finding that a compensable rating is warranted for the Veteran's bilateral hearing loss prior to November 2, 2019. 2. Entitlement to a 30 percent rating, but no higher, for bilateral hearing loss (previously rated as left ear hearing loss) beginning November 2, 2019. The Veteran's current 30 percent disability rating for bilateral hearing loss is effective May 21, 2021, the date of the Veteran's most recent VA examination for his hearing loss. See June 2021 Rating Decision. The May 2021 VA examiner found a puretone threshold average of 73 decibels in the Veteran's right ear with a speech discrimination score of 70 percent, which merit the assignment of a Roman numeral VI for his right ear hearing loss. See 38 C.F.R. § 4.85, Table VI; May 2021 VA Examination for Hearing Loss and Tinnitus. The VA examiner found a puretone threshold average of 80 decibels in the Veteran's left ear and a speech discrimination score of 78 percent. Id. However, this left ear showed puretone threshold values greater than 55 decibels at the 1000, 2000, 3000, and 4000 Hertz frequencies, which is considered an exceptional pattern of hearing impairment. 38 C.F.R. § 4.86(a). This allows for a Roman numeral designation of VII for his left ear under 38 C.F.R. § 4.85, Table VIA. The May 2021 VA examiner's findings, thus, support a 30 percent rating for his bilateral hearing loss based on a numeric designation of VI for his right ear hearing loss and a VII for his left. See 38 C.F.R. § 4.85, Table VII. The VA examiner is a medical professional qualified to evaluate the Veteran's hearing acuity and provided a detail report with findings relevant to the rating criteria. The Board finds VA examiner's findings are highly probative for these reasons. The Board also took into consideration the Veteran's lay statements about his hearing loss. As discussed above, the Veteran's statements about having trouble hearing others and his TV are not probative for evaluating the specific rating criteria needed to rate his hearing loss. However, the Board finds the Veteran's statement to his July 2020 VA treatment provider that his hearing had worsened to be probative in showing his hearing loss may have worsened to a compensable level prior to May 21, 2021. The Veteran also testified that his hearing has generally shows a decline every two years for the past 11 years. See January 2021 Hearing Transcript. The Board recognizes that no audiometric findings prior to May 21, 2021, support a compensable rating for the Veteran's hearing loss. However, in resolving any reasonable doubt in favor of the Veteran, the Board finds that May 2021 VA examiner's findings reflect the Veteran's hearing loss two years after the November 2017 VA examination, the most recent prior VA examination that evaluated his hearing acuity. The Board considered whether a rating higher than 30 percent is warranted, but the claims file contains no audiological findings that support numeric assignment higher than a VI for the Veteran's right ear hearing loss and a VII for his left ear. The Board considered the contention that the May 2021 VA examination is inadequate because there is no explanation other than the audiometric findings. The representative also contended that there is no indication the audiometric testing device was calibrated or validated. The schedular rating criteria for hearing loss considers only the specific audiometric findings. Regarding the validity and calibration of the testing device, the text of the examination report itself states, "An examination of hearing impairment must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (specifically, the Maryland CNC recording) and a puretone audiometry test in a sound isolated booth that meets American National Standards Institute standards (ANSI S3.1.1999 [R2004]) for ambient noise." Moreover, the VA examiner noted that the test results are valid for rating purposes. May 2021 VA Examination for Hearing Loss and Tinnitus. In the absence of clear evidence to the contrary, the Board presumes the competency of the VA examiners. Rizzo v. Shinseki, 580 F.3d 1288, 1292 (Fed. Cir. 2009); see Sickles v. Shinseki, 643 F.3d 1362, 1366 (Fed. Cir. 2011). The representative's speculation that the audiometric device may not be calibrated or validated is not enough to establish clear evidence that the examination findings are not competent. The evidence supports a 30 percent rating, but no higher, is warranted for the Veteran's bilateral hearing loss beginning November 2, 2019. R. FEINBERG Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Lin 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.