Citation Nr: 21067493 Decision Date: 11/04/21 Archive Date: 11/04/21 DOCKET NO. 17-16 911 DATE: November 4, 2021 ORDER For the period prior to July 12, 2021, entitlement to an increased, compensable rating for bilateral hearing loss is denied. FINDING OF FACT For the period prior to July 12, 2021, the Veteran's bilateral hearing loss approximated a pure tone threshold average of no higher than 50 decibels for the right ear and 56 decibels for the left ear, with speech discrimination scores, using the Maryland CNC word list, of no lower than 88 percent for the right ear and 88 percent for the left ear. CONCLUSION OF LAW For the period prior to July 12, 2021, the criteria for an increased, compensable rating for bilateral hearing loss are not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.85, 4.86, DC 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from March 1973 to January 1981. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office in Oakland, California. In April 2021, the Veteran testified at a virtual hearing before the undersigned Veterans Law Judge. A transcript of this hearing is of record. In June 2021, the Board remanded the case to the Regional Office for further evidentiary development. Thereafter, in an August 2021 rating decision, the Regional Office increased the disability rating for the bilateral hearing loss disability to 10 percent disabling, effective July 12, 2021. However, this rating increase does not constitute as a total grant of full benefits sought on appeal, and thus, this increased rating claim for bilateral hearing loss remains on appeal before the Board. AB v. Brown, 6 Vet. App. 35 (1993). Increased Rating Disability ratings are determined by application of the criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating applies. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is to be considered when making disability evaluations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran asserts entitlement to a higher, increased rating, than currently assigned, for his service-connected bilateral hearing loss. He is currently rated for service-connected bilateral hearing loss at a zero, non-compensable rating for the period prior to July 12, 2021, and at 10 percent disabling for the period beginning July 12, 2021. The Board notes that the Regional Office has just granted the increased, 10 percent disability rating for bilateral hearing loss. Therefore, it shall only consider the issue of whether the Veteran is entitled to an increased, compensable rating for bilateral hearing loss for the period prior to July 12, 2021, as there is no additional, updated, probative evidence for the Board to consider, with respect to whether a rating in excess of 10 percent disabling is warranted for an estimated three-month period (spanning from July 12, 2021 to the date of this Board decision). Hearing loss is evaluated under 38 C.F.R. § 4.85, DC 6100 (2017). In evaluating hearing loss, disability ratings are derived from a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are performed. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Hearing loss disability evaluations range from noncompensable to 100 percent based on organic impairment of hearing acuity, as measured by controlled speech discrimination tests using the Maryland CNC word list, in conjunction with the average hearing threshold, measured by puretone audiometric tests in the frequencies 1,000, 2,000, 3,000 and 4,000 cycles per second. 38 C.F.R. § 4.85, DC 6100. The rating schedule establishes eleven auditory acuity levels designated from Level I, for essentially normal hearing acuity, through Level XI for profound deafness. See id. VA audiometric examinations are generally conducted using a controlled speech discrimination test together with the results of a puretone audiometry test. Id. Table VI in 38 C.F.R. § 4.85 is then used to determine the numeric designation of hearing impairment based on the puretone threshold average derived from the audiometry test, and from the results of the speech discrimination test. Given the above-mentioned criteria, the Veteran was afforded examinations for an assessment of the severity of his bilateral hearing loss. Specifically, a September 2015 VA examination report reflects audiometric findings from an audiological examination. At this examination, pure tone thresholds for the right ear, in dB, were 30dB at 1000Hz; 50dB at 2000Hz; 60dB at 3000Hz; 60dB at 4000 Hz, with an average pure tone threshold of 50dB. Pure tone thresholds for the left ear, in dB, were 25dB at 1000Hz; 55dB at 2000Hz; 70dB at 3000Hz; and 75dB at 4000Hz, with an average pure tone threshold of 56.25dB (rounded up to 56dB). Speech discrimination testing revealed speech recognition ability of 88 percent in the right ear and 88 percent in the left ear. Applying these results to Table VI in 38 C.F.R. § 4.85, the pure tone threshold average of 50dB and a speech discrimination score of 88 percent for the right ear results in Level II for the right ear. Likewise, applying these results to the Table VI chart, a pure tone threshold average of 56dB and a speech discrimination score of 88 percent for the left ear results in a Level II for the left ear. Applying both results to the Table VII chart (with the left ear being the "poorer" ear), a Level II for the right ear, combined with a Level II for the left ear, results in a 0 percent rating evaluation. Although the Veteran's claims file also includes a May 2015 private audiological evaluation and an October 2016 revised audiological evaluation for bilateral hearing loss, the Board finds that these audiologic evaluations are inadequate as the audiometric findings do not provide any indication as to whether the results of a speech test are based on Maryland CNC word list, as required by 38 C.F.R. § 4.85(a). Nonetheless, the Veteran asserted that he is entitled to an increased, compensable rating because he had several hearing tests that demonstrated a higher compensable rating. See April 2017 Form VA 646 (Statement of Accredited Representative in Appealed Case). Contrary to the Veteran's assertions, however, there is no medical evidence of other, additional audiological evaluations that are reflective of findings that warrant a higher, compensable rating, based on the above-mentioned mechanical application rating schedule, under DC 6100. Although medical treatment records include audiometric findings for bilateral hearing loss, these results do not provide a comprehensive breakdown of the puretone threshold for each ear at 1000Hz, 2000Hz, 3000Hz, and 4000Hz; and even though word discrimination scores are documented, there is no indication as to whether these findings are based on the Maryland CNC word list. See e.g. October 2016 Audiology Note. Thus, these results do not provide any probative value to an assessment of the severity of the Veteran's hearing loss, based on the mechanical application of the rating schedule, under DC 6100. At his April 2016 virtual hearing, the Veteran testified that his hearing impairment worsened since his VA examination in 2015. He also explained that he had not been evaluated by an audiologist for a few years. Further, he testified that his hearing loss deteriorated to the point where he has to look at his wife when she is speaking to him, and when they are having casual conversations, he has to keep turning to her direction and look at her, and she has to raise her voice to communicate with him. He indicated that he "reads lips" to communicate with others, and he told his doctor that he is "getting better at it", although he needs people to slow down, when speaking to him, and he constantly asks them to repeat themselves. See April 2016 Virtual Hearing Transcript. However, the evidence does not show that the Veteran's hearing loss worsened at any time prior to July 12, 2021. To the contrary, and a few months after his April 2016 virtual hearing, the Veteran was seen for an audiological re-evaluation, and he reported that his hearing was stable, in comparison to his September 2015 hearing evaluation. See October 2016 Audiology Note. Although the medical evidence does suggest that the Veteran's hearing loss worsened, evidence of such was not apparent until July 2021. Summarily, a July 2021 examination reflects audiometric findings that reflect a pure tone threshold average of 69dB and a speech discrimination score of 80 percent for the right ear, which result in Level IV for the right ear; and a pure tone threshold average of 60dB and a speech discrimination score of 72 percent for the left ear, which results in a Level V for the left ear. Applying both results to the Table VII chart under 38 C.F.R. § 4.85, a Level IV for the right ear, combined with a Level V for the left ear approximate a 10 percent rating evaluation. However, these findings established the basis for the Regional Office's assignment of an increased, 10 percent disability rating for bilateral hearing loss, which became effective on the date of the July 2021 VA examination report that established evidence of the earliest date of worsened hearing. For the period prior to July 12, 2021, however, an increased, compensable rating is not warranted because audiometric findings for this period of the appeal reflect a zero percent, non-compensable rating, based on the mechanical application of the hearing loss measurements, as applied to the relevant tables under 38 C.F.R. §§ 4.85. The rating criteria for hearing loss contemplate the functional effects of decreased hearing and difficulty understanding speech in an everyday work environment, as these are the effects that VA's audiometric tests are designed to measure. Doucette v. Shulkin, 28 Vet. App. 377 (2017). More so, the evidence does not show that Veteran's hearing loss produces any other functional impairments that the rating schedule has not contemplated. See id. Therefore, the claim for an increased, compensable rating for bilateral hearing loss must be denied. M. Tenner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board V-N. Pratt 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.