Citation Nr: 21069635 Decision Date: 11/19/21 Archive Date: 11/19/21 DOCKET NO. 17-42 410 DATE: November 19, 2021 ORDER Entitlement to a rating of 30 percent, but no higher, for service-connected hearing loss from March 21, 2015 to June 20, 2016 is granted. Entitlement to a rating of 50 percent, but no higher, for service-connected hearing loss since June 20, 2016 is granted. FINDINGS OF FACT 1. From March 21, 2015 to June 20, 2016 the Veteran has no worse than Level VI hearing loss in the left ear using Table VI and Level VII for the right ear using Table VI for VA purposes. 2. Since June 20, 2016, the Veteran has no worse than Level IX hearing loss in the left ear using Table VI and Level VIII for the right ear using Table VI for VA purposes. CONCLUSIONS OF LAW 1. The criteria for a schedular rating of 30 percent for a bilateral hearing loss disability, from March 21, 2015 to June 20, 2016, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.385, 4.7, 4.85, 4.87, Diagnostic Code 6100. 2. The criteria for a schedular rating of 50 percent for bilateral hearing loss disability, as of June 20, 2016, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.385, 4.7, 4.85, 4.87, Diagnostic Code 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had honorable active service with the United States Army from March 1969 to January 1971. This matter is before the Board of Veterans' Appeals (Board) on appeal from a June 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a virtual hearing before the undersigned Veterans Law Judge (VLJ) in February 2021. A written transcript of the hearing has been prepared and is associated with the claims file. Then in May 2021, the Board remanded the claim for development. After a Supplemental Statement of the Case (SSOC), the claims are back before the Board. INCREASED RATING Disability ratings are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two ratings will be applied, the higher rating will be assigned if the disability picture more closely approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991); see also 38 C.F.R. §§ 4.1, 4.2. As such, the Board has considered all the evidence of record. However, the most probative evidence of the degree of impairment consists of records generated in proximity to and since the claim on appeal. Under applicable laws and regulations, the rating assigned for hearing loss is determined by a mechanical application of the rating schedule, which is grounded on numeric designations assigned to audiometric examination results. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Currently, evaluations of hearing impairment ranges from 0 to 100 percent based on organic impairment of hearing acuity. Auditory acuity is gauged by examining the results of controlled speech discrimination tests, using the Maryland CNC, together with the results of pure tone audiometric tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hz). To evaluate the degree of disability, the rating schedule establishes 11 auditory acuity levels ranging from Level I, for essentially normal acuity, through Level XI, for profound deafness. 38 C.F.R. § 4.85 Tables VI and VII, as set forth following 38 C.F.R. § 4.85, are used to calculate the rating to be assigned. 38 C.F.R. § 4.85. Under 38 C.F.R. § 4.86, when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000 and 4000 Hz) is 55 decibels (dB) or more, Table VI or Table VIA is to be used, whichever results in the higher numeral. 38 C.F.R. § 4.86(a). Additionally, when the pure tone threshold is 30 dB or less at 1000 Hz, and 70 dB or more at 2000 Hz, Table VI or Table VIA is to be used, whichever results in the higher numeral. Thereafter, that numeral will be elevated to the next higher Roman Numeral. 38 C.F.R. § 4.86(b). 1. Entitlement to a rating of 30 percent, but no higher, for service-connected hearing loss from March 21, 2015 to June 20, 2016 is granted. See Analysis in Section 2 2. Entitlement to a rating of 50 percent, but no higher, for service-connected hearing loss since June 20, 2016 is granted The Veteran asserts that he is entitled to a compensable rating for his bilateral hearing loss prior to August 2021 and that he should be awarded a higher rating since August 2021. In January 2015, the Veteran had an examination at an audiological clinic using recorded Maryland CNC word lists for word recognition scores. The presentation levels represented the most comfortable loudness levels for the Veteran. See Medical Treatment Record-Non-Government Facility received March 2015. The results of pure tone thresholds and speech recognition scores are as follows: Jan. 2015 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 45 50 60 70 56.25 56 % LEFT 45 55 60 70 57.5 60 % The right ear thus had a numerical designation of "VII," and the left ear was "VI" according to Table VI. Following the percentage evaluations listed in Table VII, the Veteran was entitled to a maximum evaluation of 30 percent. In June 2015 the Veteran had a VA examination. See C&P Exam received June 2015. The results of pure tone thresholds and speech recognition scores are as follows: June 2015 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 30 50 60 60 50.00 84 % LEFT 35 60 60 70 56.25 88 % The right ear thus had a numerical designation of "II," and the left ear was "II" according to Table VI. Following the percentage evaluations listed in Table VII, the Veteran was entitled to a maximum evaluation of 0 percent. Then in June 2016 the Veteran had a private examination using the CNC word list and using a recorded voice. See Medical Treatment Record-Non-Government Facility received August 2021. The results of pure tone thresholds and speech recognition scores are as follows: June 2016 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 45 65 65 75 62.5 48% LEFT 45 65 70 80 65 42% The right ear thus had a numerical designation of "VIII," and the left ear was "IX" according to Table VI. Following the percentage evaluations listed in Table VII, the Veteran was entitled to a maximum evaluation of 50 percent. Then in July 2017 the Veteran had a VA examination. See C&P Exam received July 2017. The results of pure tone thresholds and speech recognition scores are as follows: July 2017 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 30 50 60 65 51.25 84 % LEFT 35 55 60 70 55 86 % The right ear thus had a numerical designation of "II," and the left ear was "II" according to Table VI. Following the percentage evaluations listed in Table VII, the Veteran was entitled to a maximum evaluation of 0 percent. In May 2019 the Veteran had a private audiological examination, by a different private provider than he used in June 2016, using the Maryland CNC word lists and a recorded voice. See Medical Treatment Record-Non-Government Facility received August 2021. The results of pure tone thresholds and speech recognition scores are as follows: May 2019 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 50 70 70 75 66.25 48% LEFT 45 70 75 75 66.25 48% The right ear thus had a numerical designation of "VIII," and the left ear was "VIII" according to Table VI. Following the percentage evaluations listed in Table VII, the Veteran was entitled to a maximum evaluation of 50 percent. Then in August 2021 the Veteran had a VA examination. See C&P Exam received August 2021. The results of pure tone thresholds and speech recognition scores are as follows: Aug. 2021 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 25 60 70 85 60 68% LEFT 35 65 70 75 61 64% The right ear thus had a numerical designation of "V," and the left ear was "VI" according to Table VI. Following the percentage evaluations listed in Table VII, the Veteran was entitled to a maximum evaluation of 20 percent. Then in September 2021, a VA examiner was asked to opine on the discrepancies for word recognition scores between the private medical records and the VA examinations. See C&P Exam received September 2021. The VA expert stated that word recognitions scores can vary significantly from one presented intensity level to another, from a recorded word list versus a list presented using live voice, from a female voice versus a male voice, and for other reasons. The examiner suggested that there was a known history of poor examination techniques by the two private providers that the Veteran used for his June 2016, and May 2019 audiological testing. Moreover, the VA audiological expert stated at the VA they used a very strict set of testing procedures. Id. The Board finds that the September 2021 opinion is inadequate for a few reasons. First the VA expert stated that the January 2015, and May 2019 audiological examinations did not specify the word list used or if recorded voice was used. However, the VA expert is incorrect, the records from both these examinations stated that the Maryland CNC word list was used and that a recorded voice was also used. Second, the VA expert did not explain why the June 2016, and May 2019 private audiological providers had "a known history of poor examination techniques" and did not explain the "strict set of testing procedures" that the VA used. As such, the Board finds that the VA opinion provided in September 2021 is inadequate as it is not factually correct and conclusory. From March 21, 2015 to June 20, 2016, the Board finds that a rating of 30 percent is warranted based on the January 2015 audiological examination. As noted above, the January 2015, examination at an audiological clinic was reported to be using a recorded Maryland CNC word lists for word recognition scores. Following the percentage evaluations listed in Table VII, the Veteran was entitled to a maximum evaluation of 30 percent at that time. In June 2016 and again in May 2019, the Veteran's private audiological testing supported a rating of 50 percent. Therefore, a rating of 50 percent was warranted since June 20, 2016, based on the June 20, 2016 audiological testing. The Board noted that there were variations in the word recognition scores, between the VA and private tests, but the private tests were performed using the Maryland CNC word lists and a recorded voice. They were also performed by different private providers and there is no adequate evidence or an opinion by which to discount this favorable evidence. A rating in excess of 50 precent has been denied. Medical evidence of record does not reflect additional audiological examinations that document worse symptoms than the 50 percent rating. Considering the evidence in the light most favorable to the Veteran, and based upon the credible, competent audiology results from private examinations, the Veteran is entitled to an evaluation of 30 percent, but no higher, from March 21, 2015 to June 20, 2016, and of 50 percent, but no higher, since June 20, 2016. As such, entitlement to an increased rating for hearing loss has been granted. B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Associate Counsel, C. Parnell 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.