Citation Nr: 21069042 Decision Date: 11/17/21 Archive Date: 11/17/21 DOCKET NO. 14-35 723 DATE: November 17, 2021 ORDER Entitlement to a rating in excess of 20 percent prior to June 6, 2013, for bilateral sensorineural hearing loss disability is denied. Entitlement to a rating in excess of 30 percent on and after June 6, 2013, for bilateral hearing loss, to include entitlement to an earlier effective date, is denied. FINDINGS OF FACT 1. The Veteran's September 2011 Veterans Application for Compensation or Pension, VA Form 21-526, for bilateral hearing loss was received by the Agency of Original Jurisdiction on October 12, 2011. 2. Prior to June 6, 2013, the service-connected bilateral sensorineural hearing loss was shown to be manifested by no more than Level VI hearing impairment in the right ear and Level V hearing impairment in the left ear. 3. On and after June 6, 2013, the service-connected bilateral hearing loss was shown to be manifested by no more than Level VI hearing impairment in the right ear and Level VI hearing impairment in the left ear. 4. The report of an October 3, 2013, Department of Veterans Affairs (VA) audiological examination reflects an increase in severity of the service connected bilateral sensorineural hearing loss disability. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent prior to June 6, 2013, for bilateral hearing loss, have not been met. 38 U.S.C. §§ 1155, 5110; 38 C.F.R. §§ 3.400, 4.85, Diagnostic Code 6100. 2. The criteria for a rating in excess of 30 percent prior to June 6, 2013, for bilateral hearing loss, have not been met. 38 U.S.C. §§ 1155, 5110; 38 C.F.R. §§ 3.400, 4.85, Diagnostic Code 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had recognized guerilla service from June 1, 1945 to February 12, 1946. The Veteran died in November 2014. The Appellant is the Veteran's surviving spouse. In February 2018, she was substituted for the Veteran in this appeal. Rating for Bilateral Hearing Loss Disability ratings are determined by comparing the Veteran's symptomatology with the criteria set forth in the Schedule for Rating Disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Ratings for bilateral hearing loss range from 0 percent to 100 percent based on the degree of organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests together with the average hearing threshold level as measured by a pure tone audiometry test in the frequencies of 1000, 2000, 3000, and 4000 cycles per second. The rating schedule establishes eleven auditory acuity levels designated from Level I for essentially normal auditory acuity to Level XI for profound deafness. The ratings derived from the rating schedule are intended to make allowance for improvement by hearing aids. 38 C.F.R. § 4.85, Diagnostic Code 6100. Table VIa, "Numeric Designation of Hearing Impairment Based Only on Puretone Threshold Average," is to be used to determine a Roman numeral designation (I through XI) for hearing impairment based only on the pure tone threshold average. Table VIa will be used when the examiner certifies that use of the speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc., or when indicated under the provisions of 38 C.F.R. § 4.86. 38 C.F.R. § 4.85(c). When the pure tone threshold at each of the four specified frequencies of 1000, 2000, 3000, and 4000 Hertz is 55 decibels or more, 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. Each ear will be evaluated separately. 38 C.F.R. § 4.86(a). When the 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. That numeral will then be elevated to the next higher Roman numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86(b). In rating hearing loss, ratings on a schedular basis are derived by a mechanical application of the ratings schedule to the numeric designations assigned after audiometric evaluations are made. Lendenmann v. Principi, 3 Vet. App. 345 (1992). VA audiological evaluations should include both objective test results and a full description of the functional effect of the Veteran's hearing loss disability. Martinak v. Nicholson, 21 Vet. App. 447 (2007). Unless otherwise specifically provided in Chapter 51 of Title 38 of the United States Code, the effective date of an award based on a claim for increased compensation shall be fixed in accordance with the facts found, but shall not be earlier than the date of application therefor. 38 U.S.C. § 5110(a). An award of increased compensation will be generally effective as of the date of claim or the date entitlement arose, whichever is later. An increase in disability compensation shall be effective on the earliest date as of which it is factually ascertainable that an increase in disability had occurred if an application is received within one year from that date. Otherwise, the effective date shall be the date of receipt of the claim. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o). The Veteran asserted that the service connected bilateral hearing loss disability warranted a 100 percent schedular rating effective as of October 12, 2011, the date of the receipt of his claim for service connection for bilateral hearing loss. Period prior to June 6, 2013 The Veteran submitted a September 2011 Veterans Application for Compensation or Pension, VA Form 21-526, seeking service connection for bilateral hearing loss. The claim was received by the Agency of Original Jurisdiction on October 12, 2011. The Veteran failed to report for a scheduled January 2012 VA audiological examination. In February 2013, the Agency of Original Jurisdiction denied service connection for bilateral hearing loss. The report of an April 2013 VA audiological examination states that the Veteran reported that he needed "to ask the person he is talking to speak louder during conversations." On audiometric examination, the Veteran exhibited pure tone thresholds, in decibels, as follows: HERTZ 1000 2000 3000 4000 RIGHT 75 65 75 80 LEFT 65 55 75 70 The examiner indicated that the use of speech discrimination scores was not appropriate for the Veteran because of language difficulties, cognitive problems, and inconsistent speech discrimination scores. The Veteran was diagnosed with bilateral sensorineural hearing loss. Upon application of 38 C.F.R. §§ 4.85(c), 4.86(a), the audiometric findings reflect right ear Level VI hearing impairment and left ear Level V hearing impairment. In May 2013, the Agency of Original Jurisdiction established service connection for bilateral sensorineural hearing loss rated as 20 percent disabling, effective as of October 12, 2011. In his June 2013 notice of disagreement, the Veteran stated that he could not hear if someone talked to him and the person must put their mouth near his ear in order for him to hear. In a July 2013 written statement, the Veteran clarified that he did not understand conversations unless the person shouts near his ears. He asserted that his hearing loss disability warranted assignment of a 100 percent schedular rating. In both a January 2014 Notice of Disagreement, VA Form 21-0958, and his September 2014 Appeal to the Board, VA Form 9, the Veteran asserted that that the effective date for the award of a 30 percent rating should be October 12, 2011, the date of his original claim for service connection, and a 100 percent schedular rating was warranted for the service connected hearing loss given its severity the level of his disability was so severe. Prior to June 6, 2013, the service connected bilateral sensorineural hearing loss disability was shown to be manifested by no more than right ear Level VI hearing impairment, left ear Level V hearing impairment, and significant difficulty in hearing and participating in conversations with other individuals. Such impairment warrants assignment of a 20 percent rating and no higher under Diagnostic Code 6100. While carefully considering the Veteran's competent statements regarding the severity of the service connected hearing loss disability, the Board observes that the evaluation of hearing loss is conducted by a mechanical application of the rating schedule, after audiometric evaluations are rendered. Lendenmann v. Principi, supra. The record reflects that a 20 percent rating and no higher is warranted under Diagnostic Code 6100 during the relevant period. The functional impact which the Veteran described is contemplated by the rating criteria. Doucette v. Shulkin, 28 Vet. App. 366 (2017); Rossy v. Shulkin, 29 Vet. App. 142 (2017). Period on and after to June 6, 2013 The report of an October 3, 2013, VA audiological examination states that the Veteran indicated that the service connected bilateral hearing loss disability necessitated that he "ask the person talking to repeat the words a number of times for him to understand." On audiometric examination, the Veteran exhibited pure tone thresholds, in decibels, as follows: HERTZ 1000 2000 3000 4000 RIGHT 65 70 70 85 LEFT 65 60 80 80 The examiner indicated that the use of speech discrimination scores was not appropriate for the Veteran because of language difficulties, cognitive problems, and inconsistent speech discrimination scores. The Veteran was diagnosed with bilateral sensorineural hearing loss. Upon application of 38 C.F.R. §§ 4.85(c), 4.86(a), the audiometric findings reflect right ear Level VI hearing impairment and left ear Level VI hearing impairment. In November 2013, the Agency of Original Jurisdiction increased the rating for bilateral sensorineural hearing loss from 20 percent to 30 percent and effectuated the award as of June 6, 2013, the date of the Veteran's notice of disagreement. On and after June 6, 2013, the service connected bilateral sensorineural hearing loss disability was shown to be manifested by no more than right ear Level VI hearing impairment, left ear Level VI hearing impairment, and significant difficulty in hearing and participating in conversations with other individuals. Such impairment warrants assignment of a 30 percent rating and no higher under Diagnostic Code 6100. Accordingly, a rating in excess of 30 percent is denied. In addressing the Veteran's contentions that an effective date prior to June 6, 2013, for the award of the 30 percent rating for bilateral hearing loss is warranted, the Board observes that, while the Veteran's claim for service connection for bilateral hearing loss, from which the instant appeal arises, was received on October 12, 2011, it was initially ascertainable that an increase in severity of the service connected bilateral sensorineural hearing loss disability had occurred on October 3, 2013, the date of the October 2013 VA audiological examination report. The appropriate effective date for the award of a 30 percent rating for bilateral sensorineural hearing loss is therefore October 3, 2103. Accordingly, an effective date prior to June 6, 2013, is not warranted. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o). J. T. HUTCHESON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Casula 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.