Citation Nr: 21071203 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 17-51 997 DATE: November 30, 2021 ORDER Entitlement to a rating higher than 10 percent for bilateral sensorineural hearing loss is denied. FINDING OF FACT At worst, the Veteran has Level VI hearing loss in his right ear and Level II in his left ear. CONCLUSION OF LAW The criteria are not met for entitlement to a rating in excess of 10 percent for the bilateral sensorineural hearing loss. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code (DC/Code) 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1965 to May 1969. This appeal to the Board of Veterans' Appeals (Board) is from an April 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO), which is the Agency of Original Jurisdiction (AOJ). In relevant part, that decision granted service connection for bilateral sensorineural (i.e., high frequency) hearing loss and rated it initially as 0-percent disabling, so noncompensable, retroactively effective from May 24, 2013, so back to the date of receipt of the Veteran's informal claim for this disability. He appealed for a higher initial rating. See Fenderson v. West, 12 Vet. App. 119 (1999). In April 2019, the Board remanded this claim back to the RO (AOJ) for further development and consideration specifically, to obtain relevant medical records (VA and private) and to have the Veteran undergo a VA audiology examination reassessing the severity of his bilateral sensorineural hearing loss. There since has been the required compliance, certainly the acceptable substantial compliance, with those remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Based on the results of the November 2019 VA audiology examination, on remand, an August 2020 RO decision since issued increased the rating for the Veteran's bilateral sensorineural hearing loss from 0 to 10 percent with the same retroactive effective date of May 24, 2013. But, as that increase is not the highest possible rating for this disability, that increase in rating did not abrogate his appeal. See AB v. Brown, 6 Vet. App. 35, 38-39 (1993). So, this appeal now concerns whether he is entitled to an even higher rating meaning a rating even greater than 10 percent at any time since May 24, 2013. Entitlement to a rating higher than 10 percent for the bilateral sensorineural hearing loss Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. When evaluating the severity of a disability, it is essential the disability is considered in the context of its entire recorded history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). But, if the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings, then separate ratings may be assigned for separate periods of time based on the facts found. This practice is known as "staged" ratings and is employed for initial or established ratings. Fenderson, 12 Vet. App. at 125-26; Hart v. Mansfield, 21 Vet. App. 505 (2007). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. In general, 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. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Ratings for hearing loss are determined in accordance with the findings obtained on audiometric examination. Evaluations of hearing impairment range from noncompensable (i.e., 0 percent) to 100 percent based on 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 puretone audiometry tests in the frequencies of 1,000, 2,000, 3,000, and 4,000 cycles per second (Hertz (Hz)). To evaluate the degree of disability from hearing impairment, the Rating Schedule establishes eleven auditory acuity levels designated from Level I for essentially normal acuity through Level XI for profound deafness. 38 C.F.R. § 4.85, DC 6100. As set forth in the regulations, Tables VI, VIA, and VII are used to calculate the rating. See 38 C.F.R. § 4.85, DC 6100. Hearing tests are conducted without hearing aids, and the results are charted on Table VI and Table VII. See 38 C.F.R. § 4.85. Table VI is used to determine the Roman numeric designation, based on test results consisting of puretone thresholds and Maryland CNC test speech discrimination scores. The numeric designations are then applied to Table VII to determine the appropriate rating for hearing impairment. Alternatively, VA regulations provide that, in cases of exceptional patterns of hearing impairment, when the pure tone thresholds at each of the four specified frequencies (1,000, 2,000, 3,000 and 4,000 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). The provisions of 38 C.F.R. § 4.86(b) further provide that, when the pure tone threshold is 30 decibels or less at 1,000 Hertz, and 70 decibels or more at 2,000 Hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever would result in the higher numeral. During the November 2019 VA audiological evaluation, on remand, the Veteran had the following pure tone thresholds, in decibels: HERTZ 500 1000 2000 3000 4000 Avg. RIGHT 45 65 70 65 90 73 LEFT 50 50 65 65 70 63 Speech audiometry revealed speech recognition ability of 94 percent, bilaterally, so in each ear. Applying the results of that audiological examination to Table VI yields a Roman numeral designation of Level II, bilaterally. See 38 C.F.R. § 4.85. However, an exceptional pattern of hearing loss is established for the right ear. And, applying the audiology results instead to Table VIA yields a designation Level VI for this ear, so greater hearing loss in this ear. But when in turn applying these designations to Table VII (Level VI hearing loss in the right ear and Level II in the left ear) still correlates to a 10 percent rating, which is the rating the RO already assigned on remand based on the results of that hearing examination. The VA examiner identified the functional impact of this hearing loss as the Veteran having difficulty hearing in noisy places, such as in restaurants, and difficulty hearing his wife. See Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). He is retired. His medical records do not indicate any physical abnormalities of either ear, other than hearing loss and tinnitus (ringing in his ears), which already has been determined service connected and separately rated as 10 percent disabling effectively since May 24, 2013, which is the highest permissible schedular rating for this disease. See Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006), citing 38 C.F.R. § 4.87, Diagnostic Code 6260. Moreover, the Veteran does not have symptoms or consequent impairment beyond what is contemplated by the regular schedular rating criteria. See Rossy v. Shulkin, 29 Vet. App. 142 (2017); Doucette v. Shulkin, 28 Vet. App. 366 (2017) (affirming a Board decision denying extra-schedular referral under 38 C.F.R. § 3.321(b)(1) when only the functional effects alleged were aspects of hearing loss). The Court concluded that Doucette directed the outcome of the appeal in Rossy, as well. In Doucette, the Court addressed how to conduct an extra-schedular analysis, specifically, the first Thun inquiry in the contest of a hearing loss claim. The Court held that the rating criteria of §§ 4.85 and 4.86 contemplate, and thus compensate for, the functional effects of hearing loss, namely, difficulty understanding speech and the inability to hear sounds in various contexts. While leaving open the possibility that extra-schedular consideration for hearing loss might be warranted by other symptoms or functional effects associated with that disability, the Court further held that extra-schedular referral is not reasonably raised when complaints of difficulty hearing are the only complaints of record. The Court saw no basis to distinguish that appeal from Doucette; as in this case, the only hearing loss problem alleged by the Appellant was difficulty understanding conversations, particularly in noisy or crowded circumstances. Absent other factors, the Court found that this sort of complaint is squarely within the type of symptoms and functional effects contemplated and compensated by VA's schedular rating criteria. The Court found that the Appellant had failed to demonstrate any error regarding his bilateral hearing loss. The Court affirmed the Board's decision. Recognizing all of this, the threshold element for extra-schedular consideration is not met and any further consideration of governing norms or referral to the appropriate VA officials for extra-schedular consideration is unnecessary. Thun v. Peake, 22 Vet. App. 111 (2008). The Board is aware that the Veteran submitted audiometry test results in August 2013, March 2015, and October 2016. These were all completed by different private providers using pure tone and speech recognition threshold testing, including word recognition scores and monitored live voice thresholds. However, none of them utilized Maryland CNC testing, as required by 38 C.F.R. § 4.85(a), and therefore are inadequate to rate this disability. As such, the only audiometry test results available for rating purposes are those from the November 2019 VA examination which, as discussed, at most allow for assignment of a 10 percent rating for the bilateral sensorineural hearing loss. The VA compensation examination the Veteran had previously, in April 2014, following receipt of his claim for service connection for this disability, showed that his bilateral sensorineural hearing loss, at most, warranted a lesser 0 percent rating which is why that lesser rating initially was assigned, that is, until a higher degree of bilateral sensorineural hearing loss was shown during the more recent November 2019 VA compensation examination prompting the assignment, instead, of the higher 10 percent rating. And the RO made that rating increase retroactively effective from May 24, 2013, so back to the date of receipt of the Veteran's informal claim for this disability, i.e., for the entire rating period under review rather than just as of the date of that more recent VA compensation examination in November 2019. There are no other audiometric examination results on record that are both appropriate for use in assigning a disability rating, and that justify any higher disability rating (meaning any higher than 10 percent). Hence, this appeal must be denied because the preponderance of the evidence is against the claim, in turn meaning there is no reasonable doubt concerning this to resolve in the Veteran's favor. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3, 4.7. KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board W. Stearns, Associate Counsel 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.