Citation Nr: 21070095 Decision Date: 11/23/21 Archive Date: 11/23/21 DOCKET NO. 16-37 243 DATE: November 23, 2021 ORDER A compensable rating for bilateral hearing loss prior to December 9, 2020, is denied. A 40 percent rating for bilateral hearing loss from December 9, 2020, to April 14, 2021, is granted. A 30 percent for bilateral hearing loss as of April 15, 2021, is granted. FINDINGS OF FACT 1. Prior to December 9, 2020, the Veteran's bilateral hearing was manifested by hearing acuity of no worse than Level II in the right ear and no worse than Level III in the left ear. 2. From December 9, 2020, to April 14, 2021, the Veteran's bilateral hearing was manifested by hearing acuity of Level VI in the right ear and Level VIII in the left ear. 3. As of April 15, 2021, the Veteran's bilateral hearing has been manifested by hearing acuity of Level VI in the right ear and Level VII in the left ear. CONCLUSIONS OF LAW 1. The criteria for a compensable rating for bilateral hearing loss prior to December 9, 2020, 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 40 percent rating for bilateral hearing loss from December 9, 2020, to April 14, 2021, 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. 3. The criteria for a 30 percent for bilateral hearing loss as of April 15, 2021, 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 February 1983 to January 1987. In April 2019, the Veteran testified at a Travel Board hearing before the undersigned. A transcript of the hearing has been associated with the Veteran's claims folder. The case was remanded by the Board in September 2019 for further development of the evidence. This has been accomplished and the claim has been returned for further appellate consideration. Entitlement to an increased rating for bilateral hearing loss The Veteran contends his bilateral hearing loss is more disabling than currently evaluated. Review of the record shows that the service connection was granted for hearing loss by rating decision dated in February 2007. A noncompensable (0 percent) evaluation was assigned at that time. The Veteran requested an increased rating in October 2012. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. 38 U.S.C. § 1155. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. The United States Court of Appeals for Veterans Claims (Court) has held that "staged" ratings are appropriate for an increased rating claim where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board notes that it has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to these appeals. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. Evaluations of defective hearing range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of a controlled Maryland CNC speech discrimination test together with the average hearing threshold level measured by pure tone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hertz). 38 C.F.R. § 4.85, Diagnostic Code 6100. To evaluate the degree of disability from bilateral service-connected hearing loss, the schedule establishes 11 auditory hearing acuity levels designated from Level I for essentially normal hearing acuity through Level XI for profound deafness. 38 C.F.R. § 4.85, Tables VI and VII. An exceptional pattern of hearing impairment occurs when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more. 38 C.F.R. § 4.86(a). In that situation, 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. Further, when the average 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, and that numeral will then be elevated to the next higher numeral. 38 C.F.R. § 4.86(b). Prior to December 9, 2020 A review of the relevant evidence shows that in May 2013, a VA examination was conducted. 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: May 14, 2013 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 25 45 55 45 42 84% LEFT 25 50 50 50 45 80% Applying the results to Table VI, the findings yield a numeric designation of Level II in the right ear and Level III in the left ear. Entering the resulting bilateral numeric designation of Level II for the right ear and Level III for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a zero percent disability rating under Diagnostic Code 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. In April 2019, the Veteran testified at a hearing before the Board. Specifically, he testified that he had not had any hearing tests since the May 2013 VA examination, but believed that his hearing had worsened since that time noting that he had been issued hearing aids about four years earlier. He also testified that he had a hard time hearing the television and conversations. As a result of the Veteran's hearing testimony, the Veteran was afforded another VA examination in November 2020. At that time, however, the examiner found that the test results were not valid for rating purposes. The examiner stated the Veteran was able to understand verbal instructions without amplification in conversation, but that speech reception thresholds and acoustic reflexes were not consistent with tonal findings. Based on the evidence above, a compensable rating for the Veteran's bilateral hearing loss is not warranted at that time. The Board expressly acknowledges its consideration of the lay evidence of record when adjudicating this claim, including his testimony that his hearing had worsened over time. The Veteran is competent to report difficulty with his hearing; however, disability ratings for hearing loss are derived from a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). The rating criteria contemplate speech reception thresholds and ability to hear spoken words on Maryland CNC testing. The functional impact that the Veteran describes, is contemplated by the rating criteria. Doucette v. Shulkin, 28 Vet. App. 366 (2017). The Veteran's main complaint is reduced hearing acuity and clarity, which is what is contemplated in the rating assigned. See Rossy v. Shulkin, 29 Vet. App. 142, 145 (2017). Accordingly, the preponderance of the most probative evidence is against the claim of entitlement to a compensable rating for hearing loss, prior to December 9, 2020. In reaching the conclusion above, the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). From December 9, 2020 In January 2021, the Veteran submitted the report from a private audiometric evaluation that was conducted on December 9, 2020. Although the Veteran's puretone thresholds were only provided in graph form, the United States Court of Appeals for Veterans Claim (Court) has found that the Board can interpret audiometric graphs. See Kelly v. Brown, 7 Vet. App. 471, 474 (1995); see also Savage v. Shinseki, 24 Vet. App. 249 (2011). The private examiner noted that the Maryland CNC Word List was utilized for speech recognition scores and pure tone thresholds, which were, in decibels, as follows: December 9, 2020 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 45 45 55 50 49 56% LEFT 50 55 60 60 56 44% Applying the results to Table VI, the findings yield a numeric designation of Level VI in the right ear and Level VIII in the left ear. Entering the resulting bilateral numeric designation of Level VI for the right ear and Level VIII for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a 40 percent disability rating under Diagnostic Code 6100. Under these circumstances, the 40 percent rating is shown to be warranted until the VA examination that was conducted on April 15, 2021. The Board notes that the Veteran was afforded an audiometric evaluation by VA in February 2021, but, once again, the results of that examination was not considered valid. Essentially, the examiner stated that the Veteran's pure tone thresholds could not be tested. In April 2021, the Veteran was most recently afforded a VA examination. The Veteran's Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: April 15, 2021 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 70 80 85 80 79 62% LEFT 65 80 80 75 75 70% Applying the results to Table VI, the findings yield a numeric designation of Level VII in the right ear and Level VI in the left ear. Entering the resulting bilateral numeric designation of Level VII for the right ear and Level VI for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a 30 percent disability rating under Diagnostic Code 6100. Therefore, the Board finds that a 30 percent staged rating is warranted from April 15, 2021. To these extents, the appeal is allowed. The Board has considered whether a rating higher than 40 percent is warranted for the Veteran's hearing loss from December 9, 2020, to April 15, 2021, and whether a rating higher than 30 percent is warranted from April 15, 2021; however, as discussed above, disability ratings for hearing loss are derived from a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). Throughout the appeal period, the Veteran has reported difficulty hearing, such as the television, conversations, and in social settings. However, the rating criteria contemplate speech reception thresholds and ability to hear spoken words on Maryland CNC testing. The functional impact that the Veteran describes, is contemplated by the rating criteria. Doucette v. Shulkin, 28 Vet. App. 366 (2017). The Veteran's main complaint is reduced hearing acuity and clarity, which is what is contemplated in the ratings assigned. See Rossy v. Shulkin, 29 Vet. App. 142, 145 (2017). A. ISHIZAWAR Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Joseph P. Gervasio 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.