Citation Nr: 21071650 Decision Date: 12/01/21 Archive Date: 12/01/21 DOCKET NO. 14-28 248A DATE: December 1, 2021 ORDER Entitlement to a compensable evaluation for bilateral hearing loss prior to August 29, 2016, is denied. Entitlement to an evaluation in excess of 20 percent for bilateral hearing loss on or after August 29, 2016, is denied. FINDINGS OF FACT 1. Prior to August 29, 2016, the Veteran's hearing acuity was, at worst, Level I in the right ear and Level III in the left ear. 2. Since August 29, 2016, the Veteran's hearing acuity has been, at worst, Level VI in the right ear and Level V in the left ear. CONCLUSIONS OF LAW 1. The criteria for a compensable evaluation for bilateral hearing loss prior to August 29, 2016, have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 4.1-4.14, 4.85, 4.86, Diagnostic Code 6100. 2. The criteria for an evaluation in excess of 20 percent for bilateral hearing loss on or after August 29, 2016, have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 4.1-4.14, 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1983 to November 2003. This case comes before the Board of Veterans' Appeals (Board) on appeal from a January 2013 rating decision. During the pendency of the appeal, in an October 2017 rating decision, the agency of original jurisdiction (AOJ) increased the evaluation for the Veteran's service-connected bilateral hearing loss to 20 percent effective from August 29, 2016. The Veteran testified at hearing before the undersigned Veterans Law Judge in February 2018. A transcript of the proceeding is of record. The Board remanded the case for further development in April 2018, June 2020, and May 2021. That development was completed, and the case has since been returned to the Board for appellate review. In the May 2021 remand, the Board acknowledged that the Veteran had recently reported that he is unable to work, in part, due to his service-connected bilateral hearing loss. However, at that time, the record showed that the AOJ was already developing a claim for entitlement to a total disability rating based on individual unemployability (TDIU) and found that the issue could be considered upon the additional development ordered in the remand. In an October 2021 rating decision, the AOJ denied entitlement to TDIU. The Veteran submitted a VA Form 20-0996, Request for Higher-Level Review, later that same month and listed TDIU. Thus, the issue of entitlement to TDIU is now pending before the AOJ under the Appeals Modernization (AMA) system and is not currently before the Board. Law and Analysis Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. § 4.7. In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where the question for consideration is the propriety of the initial ratings assigned, evaluation of the evidence since the effective date of the grant of service connection is required. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). Where VA's adjudication of the claim for increase is lengthy and factual findings show distinct time periods where the service-connected disability exhibits symptoms which would warrant different ratings, different or "staged" ratings may be assigned for such different periods of time. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Fenderson, 12 Vet. App. at 126-27. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the weight of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The Veteran's bilateral hearing loss is currently assigned a noncompensable evaluation prior to August 29, 2016, and an evaluation of 20 percent thereafter, pursuant to 38 C.F.R. § 4.85, Diagnostic Code 6100. In evaluating hearing loss, disability ratings are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are performed. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Evaluations of bilateral hearing loss range from noncompensable to 100 percent based on an organic impairment of hearing acuity, as measured by controlled speech discrimination tests in conjunction with the average hearing threshold, as measured by pure tone audiometric tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second. The rating schedule establishes 11 auditory acuity levels designated from Level I for essentially normal hearing acuity through Level XI for profound deafness. VA audiological evaluations are conducted using a controlled speech discrimination test together with the results of pure tone audiometry tests. The vertical line in Table VI represents 9 categories of the percentage of discrimination based on a controlled speech discrimination test. The horizontal columns in Table VI represent 9 categories of decibel loss based on the pure tone audiometry test. The numeric designation of impaired hearing (Levels I through XI) is determined for each ear by intersecting the vertical row appropriate for the percentage of discrimination and the horizontal column appropriate to the pure tone decibel loss. The percentage evaluation is found from Table VII by intersecting the vertical column appropriate for the numeric designation for the ear having the better hearing acuity and the horizontal row appropriate for the numeric designation for the level for the ear having the poorer hearing acuity. For example, if the better ear had a numeric designation of Level V and the poorer ear had a numeric designation of Level VII, the percentage evaluation is 30 percent. See 38 C.F.R. § 4.85 (includes Tables VI, VIA, and VII). Regulations also provide that, in cases of exceptional hearing loss, i.e., when the pure tone threshold at each of the four specified frequencies (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). The provisions of 38 C.F.R. § 4.86(b) provide that 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. In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to a compensable evaluation for bilateral hearing loss prior to August 29, 2016, or an evaluation in excess of 20 percent thereafter. The Veteran filed a claim for an increased evaluation for his service-connected bilateral hearing loss in December 2010. The Veteran was afforded a VA examination in February 2011 during which his puretone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 45 55 60 55 54 LEFT 50 55 65 65 59 The Maryland CNC controlled speech discrimination test revealed speech recognition of 100 percent in the right ear and 88 percent in the left ear. These audiometric findings equate to Level I hearing loss in the right ear and Level III hearing loss in the left ear. See 38 C.F.R. § 4.85, Table VI. When those values are applied to Table VII, a noncompensable evaluation is warranted for the Veteran's bilateral hearing loss under the provisions of 38 C.F.R. § 4.85. A June 2014 VA audiology record shows that the Veteran reported that his hearing aids were not loud enough. At that time, puretone air conduction test results revealed mild sloping to severe sensorineural hearing loss above 500 Hertz bilaterally. The audiologist noted that the Veteran's speech recognition was "excellent." There is documentation dated in August 2020 showing that the audiogram results from that appointment are not available. The Veteran was afforded another VA examination for his service-connected hearing loss on August 29, 2016. On the authorized audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 50 60 65 65 60 LEFT 55 60 70 70 64 The Maryland CNC controlled speech discrimination test revealed speech recognition of 72 percent in the right ear and 76 percent in the left ear. These audiometric findings equate to Level V hearing loss in the right ear and Level IV hearing loss in the left ear. See 38 C.F.R. § 4.85, Table VI. When those values are applied to Table VII, a 10 percent evaluation is warranted for the Veteran's bilateral hearing loss under the provisions of 38 C.F.R. § 4.85. Because the pure tone thresholds for the Veteran's left ear at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) was 55 decibels or more, the provisions of 38 C.F.R. § 4.86 are applicable for the August 2016 VA examination. When the audiometric results are applied to Table VIA, the Veteran is shown to have Level V hearing in his left ear, which is results in a higher numeral than Table VI. When that value is applied to Table VII with the Level V hearing in the right ear, a 20 percent percent evaluation is warranted for the Veteran's bilateral hearing loss. Based on the results of the VA examination, the AOJ increased the evaluation for the Veteran's service-connected bilateral hearing loss to 20 percent effective from August 29, 2016. An October 2017 VA audiology progress record documented that the Veteran's chief complaint was a gradual subjective decrease in hearing sensitivity. The audiogram revealed puretone thresholds, in decibels, as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 50 60 65 70 61 LEFT 55 60 70 70 64 The Maryland CNC controlled speech discrimination test revealed speech recognition of 84 percent bilaterally. These audiometric findings equate to Level III hearing loss in both ears. See 38 C.F.R. § 4.85, Table VI. When those values are applied to Table VII, a noncompensable evaluation is warranted for the Veteran's bilateral hearing loss under the provisions of 38 C.F.R. § 4.85. The Board notes that the October 2017 audiogram again shows an exceptional pattern of hearing impairment in the left ear under 38 C.F.R. § 4.86, as the Veteran had a puretone threshold of 55 decibels or more at each of the four specified frequencies. Under Table VIA, the Veteran is shown to have Level V hearing in his left ear, which results in a higher numeral than Table VI. When that value is applied to Table VII with the Level III hearing in the right ear, a 10 percent evaluation is warranted for the Veteran's bilateral hearing loss. A September 2019 VA audiology progress record documents the Veteran's report that he has significant difficulty hearing his girlfriend and in noisy situations. The audiogram revealed puretone thresholds, in decibels, as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 40 55 70 75 60 LEFT 40 60 75 70 61 The audiologist who performed the September 2019 audiogram did not use the Maryland CNC word list when testing speech recognition. Instead, it was noted that the W-22 word list was used. As such, the Board is unable to consider this evaluation because the Maryland CNC test was not used as required by the rating criteria. Under 38 C.F.R. § 4.85(a), an examination for hearing impairment for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a puretone audiometry test. Therefore, the Board is not able to consider the September 2019 audiogram for rating purposes. See Savage v. Shinseki, 24 Vet. App. 259, 263-64 (2011). The Veteran was afforded an additional VA examination for his bilateral hearing loss in September 2019. However, the examiner was unable to obtain reliable or valid puretone results despite repeated instructions. During a January 2021 VA examination, an audiogram revealed puretone thresholds, in decibels, as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 60 65 70 70 66 LEFT 50 60 70 65 61 The Maryland CNC controlled speech discrimination test revealed speech recognition of 74 percent in the right ear and 76 percent in the left ear. These audiometric findings equate to Level VI hearing loss in the right ear and Level IV hearing loss in the left ear. See 38 C.F.R. § 4.85, Table VI. When those values are applied to Table VII, a 20 evaluation is warranted for the Veteran's bilateral hearing loss under the provisions of 38 C.F.R. § 4.85. The Board notes that the January 2021 VA examination revealed an exceptional pattern of hearing impairment in the right ear under 38 C.F.R. § 4.86, as the Veteran had a puretone threshold of 55 decibels or more at each of the four specified frequencies. However, under Table VIA, the Veteran is shown to have Level V hearing in his left ear, which is a lower numeral than Table VI. Thus, it is not beneficial to the Veteran to consider the application of 38 C.F.R. § 4.86 for that examination. During a VA audiology progress appointment in February 2021, the Veteran's puretone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 45 65 70 70 62 LEFT 45 60 75 70 62 The Maryland CNC controlled speech discrimination test revealed speech recognition of 96 percent in the right ear and 92 percent in the left ear. These audiometric findings equate to Level II hearing loss bilaterally. See 38 C.F.R. § 4.85, Table VI. When those values are applied to Table VII, a noncompensable evaluation is warranted for the Veteran's bilateral hearing loss under the provisions of 38 C.F.R. § 4.85. Based on the foregoing, the audiological findings do not show that the Veteran is entitled to a compensable evaluation prior to August 29, 2016, or an evaluation in excess of 20 percent thereafter. The Board has considered the Veteran's lay assertions regarding his diminished hearing. However, the assignment of disability ratings for hearing impairment are derived by a mechanical application of the Rating Schedule to the numeric designations based on the audiology examination results. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). It is clear from the Rating Schedule that a higher rating can be awarded only when loss of hearing has reached a specified measurable level. As such, an increased evaluation is not warranted for the periods on appeal. See also Doucette v. Shulkin, 28 Vet. App. 366 (2017) (the rating criteria for hearing loss contemplate the functional effects of decreased hearing and difficulty understanding speech in an everyday work environment, as these are the effects that VA's audiometric tests are designed to measure). In reaching this determination, the Board has also considered whether an extraschedular evaluation may be warranted. The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. See Thun v. Peake, 22 Vet. App. 111 (2008). In this regard, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule and the assigned schedular evaluation is therefore adequate, and no extraschedular referral is required. Id.; see also VAOGCPREC 6-96 (Aug. 16, 1996). Otherwise, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, VA must determine whether the claimant's exceptional disability picture exhibits other related factors, such as those provided by the extraschedular regulation (38 C.F.R. § 3.321(b)(1)) as "governing norms" (which include marked interference with employment and frequent periods of hospitalization). The evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the service-connected bilateral hearing loss is inadequate. A comparison between the level of severity and symptomatology of the Veteran's assigned evaluation with the established criteria found in the rating schedule shows that the rating criteria reasonably describes the Veteran's disability level and symptomatology. In this regard, the Board acknowledges the Veteran's reports that he has significant difficulty hearing his girlfriend and in noisy situations and his February 2018 hearing testimony that he had a difficult time hearing and communicating with people while working in a casino. However, the Board finds that the Veteran's reports of difficulty hearing constitute symptomatology and impairment contemplated in the rating criteria for hearing loss. Indeed, the Court has held that the rating criteria for hearing loss contemplate the functional effects of decreased hearing and difficulty understanding speech, as these are the effects that VA's audiometric tests are designed to measure. The Court further indicated that "when a claimant's hearing loss results in an inability to hear or understand speech or to hear other sounds in various contexts, those effects are contemplated by the schedular rating criteria." See Doucette v. Shulkin, 28 Vet. App. 366, 369 (2017). The Board acknowledges the Veteran's statements that his hearing issues could have resulted in safety issues with regard to his prior employment. Specifically, in an October 2017 statement, he indicated that he had to stop working as a correctional officer because of his inability to hear and communicate effectively over the radio and that he can no longer work in law enforcement or corrections because his hearing loss poses a hazard. However, such impairments are the result of his difficulty hearing and understanding speech, the functional effects of which are contemplated by the rating criteria. It logically follows that difficulty hearing and understanding speech would impact a veteran in a variety of ways, including possible instances where the Veteran's ability to hear impacts his safety, but the rating schedule is not written to account for every possible consequence associated with each symptom. As such, it cannot be said that the available schedule evaluation for the Veteran's service-connected bilateral hearing loss is inadequate. Based on the foregoing, the Board finds that the requirements for an extraschedular evaluation for the Veteran's service-connected bilateral hearing loss under the provisions of 38 C.F.R. § 3.321(b)(1) have not been met. Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995); Thun, supra; Doucette, supra. For these reasons, the Board finds that the weight of the evidence is against entitlement to an compensable evaluation for bilateral hearing loss prior to August 29, 2016, and in excess of 20 percent thereafter. Thus, the benefit-of-the-doubt rule does not apply, and the claim is denied. J.W. ZISSIMOS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. DeVerter, 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.