Citation Nr: 21071302 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 17-13 871 DATE: November 30, 2021 ORDER For the period prior to September 12, 2016, a rating in excess of 20 percent for bilateral hearing loss is denied. For the period from September 12, 2016 to March 7, 2017, a rating in excess of 30 percent for bilateral hearing loss is denied. For the period from March 7, 2017 to June 22, 2018, entitlement to an increased 50 percent rating for bilateral hearing loss is granted. For the period prior to and since June 22, 2018, a rating in excess of 80 percent for bilateral hearing loss is denied. FINDINGS OF FACT 1. On October 25, 2004, the Veteran's right ear reflected an exceptional pattern of hearing loss. 2. On October 25, 2004, the Veteran's bilateral hearing loss manifested as no more than Level II in the right ear and level V in the left ear utilizing Table VI under 38 C.F.R. § 4.85, and level V in the right ear utilizing Table VIa. 3. On February 23, 2016, the Veteran's bilateral hearing loss manifested as no more than Level V in the right ear and Level V in the left ear. 4. On July 28, 2016, both the Veteran's right and left ears reflected an exceptional pattern of hearing loss. 5. On July 28, 2016, the Veteran's bilateral hearing loss manifested as Level VI in the right ear and level V in the left ear, at worst, utilizing Table VI under 38 C.F.R. § 4.85. It manifested as Level VI in the right ear and level V in the left ear under 38 C.F.R. § 4.85, Table VIa. 6. On September 12, 2016, the Veteran's right and left ears both reflected an exceptional pattern of hearing loss. 7. On September 12, 2016, the Veteran's bilateral hearing loss manifested as no more than VII in the right ear and VI in the left ear utilizing Table VI under 38 C.F.R. § 4.85. It manifested as V in both the right and left ears under 38 C.F.R. § 4.85, Table VIa. 8. On March 7, 2017, the Veteran's right and left ears both reflected an exceptional pattern of hearing loss. 9. On March 7, 2017, the Veteran's bilateral hearing loss manifested as no more than VI in the right ear and XI in the left ear utilizing Table VI under 38 C.F.R. § 4.85. It manifested as V in both the right and left ears under 38 C.F.R. § 4.85, Table VIa. 10. On June 22, 2018, the Veteran's right and left ears both reflected an exceptional pattern of hearing loss. 11. On June 22, 2018, the Veteran's bilateral hearing loss manifested as no more than XI in the right ear and IX in the left ear utilizing Table VI under 38 C.F.R. § 4.85. It manifested as VI in both the right and left ears under 38 C.F.R. § 4.85, Table VIa. CONCLUSIONS OF LAW 1. For the period prior to September 12, 2016, the criteria for a disability rating in excess of 20 percent for bilateral hearing loss are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.85, Diagnostic Code 6100, 4.86. 2. The criteria for a disability rating in excess of 30 percent for bilateral hearing loss from September 12, 2016 to March 7, 2017 are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.85, Diagnostic Code 6100, 4.86. 3. The criteria for an increased disability rating of 50 percent for bilateral hearing loss for the period from March 7, 2017 to June 26, 2018 are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.85, Diagnostic Code 6100, 4.86. 4. The criteria for a disability rating in excess of 80 percent for bilateral hearing loss prior to and since June 26, 2018 are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.85, Diagnostic Code 6100, 4.86. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from September 1, 1971 to June 15, 1979 and from January 1981 to March 1993. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2016 rating decision by a Department of Veteran's Affairs (VA) Regional Office (RO). In August 2021 the Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ) and the transcript is of record. Disability ratings are determined by applying the rating criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule) and represent, as far as can practicably be determined, the average impairment of earning capacity. 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, 3.321. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA compensation, as well as the whole recorded history of the Veteran's disability. 38 C.F.R. §§ 4.1, 4.2; see generally Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question of which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating is assigned. Id. Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1999). However, that is not the case where the Veteran has expressed dissatisfaction with the assignment of an initial rating following an initial award of service connection for that disability. Separate ratings may be assigned for separate periods of time based on the facts founda practice known as "staged rating". Fenderson v. West, 12 Vet. App. 119, 126 (1999). Hearing Loss 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 speech discrimination test (Maryland CNC), together with the average hearing threshold level measured by a puretone audiometric test in the frequencies of 1000, 2000, 3000, and 4000 Hertz. 38 C.F.R. § 4.85. To evaluate the degree of disability from service-connected defective hearing, the rating schedule establishes eleven 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, VIA, and VII, Diagnostic Code 6100. Disability ratings for hearing loss are derived from a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing. 38 C.F.R. § 4.85; See Lendenmann v. Principi, 3 Vet. App. 345 (1992). Hearing tests are conducted without hearing aids, and the results of above-described testing are charted on Table VI and Table VII. See 38 C.F.R. § 4.85. Under 38 C.F.R. § 4.86, when the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hz) is 55 decibels or more, the rating specialist will determine the level designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. 38 C.F.R. § 4.86 (a). Further, when the average puretone threshold is 30 decibels at 1000 Hz, and 70 decibels or more at 2000 Hz, the rating specialist will determine the level 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 Level. 38 C.F.R. § 4.86(b). 1. For the period prior to September 12, 2016, a rating in excess of 20 percent for bilateral hearing loss is denied. Here, during the period between April 5, 2004 and September 12, 2016, the Veteran was afforded two VA examinations. In addition, one private opinion was associated with the record. The October 25, 2004 VA examination revealed puretone thresholds of 55,75,70, and 65 in the right ear at the relevant frequencies and 50,65, 65, and 65 in the left ear at the relevant frequencies. See 10/25/2004 VA Examination. Average decibel loss was 66 in the right ear and 61 in the left ear. Applying these results to Table VI in 38 C.F.R. § 4.85 yields a finding of Level II in the right ear and Level V in the left ear. When hearing loss is at Level V in the poorer ear and Level II in the better ear, a rating of 10 percent is assigned under Table VII. However, during the examination, the Veteran's right ear reflected an exceptional pattern of hearing loss of the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hz) was 55 decibels or more. Therefore, consideration of the level designation for hearing impairment of the right ear under Table VIa was warranted. Applying those results to Table VIa yielded a finding of Level V in the right ear. The Level V designation for the left ear under Table VI remained. When a hearing loss is at Level V in the poorer ear and Level V in the better ear, a rating of 20 percent is assigned under Table VII. Because the level designation for the Veteran's hearing impairment from Table VIa resulted in the higher numeral, that designation was used to determine entitlement to a 20 percent rating. The February 23, 2016 VA examination revealed puretone thresholds of 25,65,65, and 55 in the right ear at the relevant frequencies and 45,70, 65, and 65 in the left ear at the relevant frequencies. See 02/23/2016 C&P Examination. Average decibel loss was 53 in the right ear and 61 in the left ear. Applying these results to Table VI in 38 C.F.R. § 4.85 yields a finding of Level V in the right ear and Level V in the left ear. When a hearing loss is at Level V in both the poorer and better ear, a rating of 20 percent is assigned under Table VII. Finally, the Veteran underwent a private audiology examination on July 28, 2016. That examination revealed puretone thresholds of 60,80,75, and 75 in the right ear at the relevant frequencies and 60,70, 70, and 65in the left ear at the relevant frequencies. See 8/16/2016 Medical Treatment Record-Non-Government Facility. Average decibel loss was 73 in the right ear and 66 in the left ear. Unfortunately, the examiner did not utilize the Maryland CNC for speech discrimination as is required by the regulation. Therefore, results under 38 C.F.R. § 4.85 Table VI are unascertainable. However, the puretone results reflected an exceptional pattern of hearing loss as the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hz) in each ear was 55 decibels or more. Applying those results to Table VIa yielded a finding of Level VI in the right ear and Level V in the left ear. When a hearing loss is at Level VI in the poorer ear and Level V in the better ear, a rating of 20 percent is assigned under Table VII. Despite being inadequate for VA purposes to determine the Veteran's degree of hearing loss, the examination results are still relevant to the effective date of such loss. See Swain v. McDonald, 27 Vet. App. 219 (2015). Nonetheless, the hearing loss reflected during that examination appears to be consistent with the VA examinations during the relevant period. Thus, the effective date of any increase in disability is not affected. As is apparent, the Veteran was only entitled to a 20 percent rating for the entirety of the relevant period even when considering exceptional hearing loss. 2. For the period from September 12, 2016 to March 7, 2017, a rating in excess of 30 percent for bilateral hearing loss is denied. From September 12, 2016 to March 7, 2017, one VA audiology examination was conducted. During the September 12, 2016 examination the Veteran's bilateral hearing loss manifested with puretone thresholds of 55,75,75, and 70 in the right ear at the relevant frequencies and 55,75, 70, and 70 in the left ear at the relevant frequencies. See 9/14/2016 C&P Examination. Average decibel loss was 69 in the right ear and 68 in the left ear. Applying these results to Table VI in 38 C.F.R. § 4.85 yields a finding of Level VII in the right ear and Level VI in the left ear. When a hearing loss is at Level VII the poorer ear and VI in the better ear, a rating of 30 percent is assigned under Table VII. During that examination both the Veteran's right and left ears reflected an exceptional pattern of hearing loss as the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hz) in each ear was 55 decibels or more. Applying those results to Table VIa yielded a finding of Level V in both the right and left ear. When a hearing loss is at Level V in both the poorer ear and the better ear, a rating of 20 percent is assigned under Table VII. Because the level designation for the Veteran's hearing impairment from Table VI resulted in the higher numeral, that designation was used to determine entitlement to a 30 percent rating for the entirety of the relevant period. 3. Entitlement to an increased 50 percent rating for bilateral hearing loss from March 7, 2017 to June 26, 2018 is granted. During the period from March 7, 2017 to June 26, 2018, the Veteran underwent one private audiology examination. During the March 7, 2017 examination, the Veteran's bilateral hearing loss manifested with puretone thresholds of 60,75,70, and 70 in the right ear at the relevant frequencies and 60,70, 65, and 70 in the left ear at the relevant frequencies. See 3/7/2017 Medical Treatment Record-Non-Government Facility. Average decibel loss was 69 in the right ear and 66 in the left ear. Applying these results to Table VI in 38 C.F.R. § 4.85 yields a finding of Level VI in the right ear and Level XI in the left ear. When a hearing loss is at Level XI in the poorer ear and VI in the better ear, a rating of 50 percent is assigned under Table VII. During that examination both the Veteran's right and left ears reflected an exceptional pattern of hearing loss as the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hz) in each ear was 55 decibels or more. Applying those results to Table VIa yielded a finding of Level V in both the right and left ear. When a hearing loss is at Level V in both the poorer ear and the better ear, a rating of 20 percent is assigned under Table VII. Because the level designation for the Veteran's hearing impairment from Table VI resulted in the higher numeral, that designation was used to determine entitlement to a 50 percent rating for the entirety of the relevant period. 4. For the period prior to and since June 26, 2018, a rating in excess of 80 percent for bilateral hearing loss is denied. Prior to June 26, 2018 the Veteran's bilateral hearing loss entitled him to various ratings less than 80 percent as delineated above. As of June 26, 2018, and in accordance with the June 2018 examination, the Veteran became entitled to an 80 percent disability rating, but no more. The June 26, 2018 VA examination reflected puretone thresholds of 60,80,70, and 70 in the right ear at the relevant frequencies and 60,75, 70, and 75 in the left ear at the relevant frequencies. Average decibel loss was 70 in both the right and left ears. Applying these results to Table VI in 38 C.F.R. § 4.85 yields a finding of Level XI in the right ear and Level IX in the left ear. When a hearing loss is at Level XI in the poorer ear and IX in the better ear, a rating of 80 percent is assigned under Table VII. During that examination both the Veteran's right and left ears reflected an exceptional pattern of hearing loss as the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hz) in each ear was 55 decibels or more. Applying those results to Table VIa yielded a finding of Level VI in both the right and left ear. When a hearing loss is at Level VI in both the poorer ear and the better ear, a rating of 30 percent is assigned under Table VII. Because the level designation for the Veteran's hearing impairment from Table VI resulted in the higher numeral, that designation was used to determine entitlement to an 80 percent rating from June 26, 2018, but no more. S.C. Krembs Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Z. Sloley, 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.