Citation Nr: 21071718 Decision Date: 12/01/21 Archive Date: 12/01/21 DOCKET NO. 18-39 438 DATE: December 1, 2021 ORDER Entitlement to an initial rating in excess of 10 percent prior to November 4, 2020, for bilateral hearing loss is denied. Entitlement to an increased rating of 20 percent, but no higher, from November 4, 2020 to July 28, 2021, for bilateral hearing loss is granted. Entitlement to an increased rating in excess of 30 percent from July 29, 2021 for bilateral hearing loss is denied. FINDINGS OF FACT 1. Prior to November 4, 2020, the Veteran's bilateral hearing loss was manifested by, at worse, Level III in the right ear and Level IV in the left ear. 2. From November 4, 2020 to July 28, 2021, the Veteran's bilateral hearing loss was manifested by Level V in the right ear and Level VI in the left ear. 3. From July 29, 2021, the Veteran's bilateral hearing loss was manifested by, at worst, Level VI hearing acuity in both ears. CONCLUSIONS OF LAW 1. Prior to November 4, 2020, the criteria for an increased initial rating for bilateral hearing loss are not met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 3.102, 4.85, Diagnostic Code 6100 (2020). 2. From November 4, 2020 to July 28, 2021, the criteria for a rating increase to 20 percent for bilateral hearing loss are met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 3.102, 4.85, Diagnostic Code 6100 (2020). 3. From July 29, 2021 the criteria for a rating increase in excess of 30 percent are not met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 3.102, 4.85, Diagnostic Code 6100 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from December 1950 to June 1973. This case comes before the Board of Veteran's Appeals (Board) on appeal of a March 2018 rating decision of the Department of Veterans (VA) Regional Office (RO). The Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ) in August 2019. The transcript of the hearing has been associated with the electronic claims file. This claim was previously before the Board in November 2019 and was remanded for further evidentiary development. Increased Rating for Hearing Loss Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. When evaluating service-connected hearing impairment, disability ratings are derived by a mechanical application of the rating schedule to the numeric designations assigned in audiometric evaluations. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). The Rating Schedule provides rating tables for the evaluation of hearing impairment. Table VI assigns a Roman numeral designation (I through XI) for hearing impairment based on a combination of percent speech discrimination and the pure tone threshold average (the sum of the thresholds at 1000, 2000, 3000 and 4000 Hertz, divided by four). 38 C.F.R. § 4.85. Table VII is used to determine the percentage evaluation by combining the Table VI Roman numeral designations for hearing impairment in each ear. 38 C.F.R. § 4.85. 38 C.F.R. § 4.86 provides for exceptional patterns of hearing impairment. 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. 38 C.F.R. § 4.86 (a). Each ear is evaluated separately. Id. 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 from either Table VI or Table VIA, whichever results in the higher numeral. 38 C.F.R. § 4.86(b). That numeral is then elevated to the next higher Roman numeral. Id. Each ear is evaluated separately. Id. 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). Where a claimant appeals the initial rating assigned following an award of service connection, evidence contemporaneous with the claim for service connection and with the rating decision granting service connection would be most probative of the degree of disability existing at the time that the initial rating was assigned and should be the evidence "used to decide whether an [initial] rating on appeal was erroneous . . . ." Fenderson v. West, 12 Vet. App. 119, 126 (1999). If later evidence obtained during the appeal period indicates that the degree of disability increased or decreased following the assignment of the initial rating, "staged" ratings may be assigned for separate periods of time based on facts found. Id. 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, 509-510 (2007). Entitlement to an increased rating for the service-connected hearing loss The Veteran is service connected with a 10 percent disability rating for bilateral hearing loss effective February 25, 2018, the date of his claim. He contends that a rating in excess of 10 percent is warranted for his service-connected bilateral hearing loss prior to July 29, 2021. Prior to November 4, 2020 Reviewing the February 2018 hearing examination, the Veteran's audiometric testing resulted in pure tone thresholds as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 35 30 50 70 80 LEFT 35 30 50 70 80 The average thresholds were 58 for the right ear and 54 for the left ear. Speech discrimination scores were 88 percent in the right ear and 78 percent in the left ear. Applying these results to Table VI, the Veteran's hearing acuity warrants a Level III for the right ear and a Level IV for the left ear. Applying these levels to Table VII, Percentage Evaluation of Hearing Impairment, the Veteran is rated at a 10 percent hearing loss. From November 4, 2020 to July 28, 2021 The Veteran noted in his August 2019 Board hearing that he felt that the VA hearing examination conducted in February 2018 was not adequate and that his bilateral hearing loss had gotten worse. He claimed that during the February 2018 VA examination, he heard "phantom noises" and didn't know what to do and just pressed the button each time he thought he heard a noise. Further, the Veteran testified that he is unable to wear hearing aids due to an ear infection, which caused irritation and the need for emergency VA care. Id. He added that he was told by the doctor that he has a serious inner ear infection, which had made his bilateral hearing loss worse. Id. In a November 4, 2020 VA treatment record, the Veteran had an audiologic evaluation in which he stated he had stopped wearing his hearing aids upon medical advice due to a severe inner ear infection. The Veteran was given a speech recognition test on which he scored 68 percent in the right ear and 64 percent in the left ear during that visit. He did not have audiometric testing on that date. However, applying these speech discrimination scores to his prior pure tone hearing thresholds from audiometric examination in February 2018, the Veteran's hearing acuity warranted a Level V for the right ear and a Level VI for the left ear. Applying these levels to Table VII, and resolving reasonable doubt in favor of the Veteran, a 20 percent disability rating for hearing loss was warranted as of November 4, 2020. From July 29, 2021 The Board remanded the Veteran's claim for an increased rating for bilateral hearing loss directing that all outstanding VA clinical records be obtained and that a new examination for bilateral hearing loss be performed in a November 2019 decision. The Board is satisfied that that there has been substantial compliance with its remand directives. Stegall v. West, 11 Vet. App. 268 (1998). The Veteran underwent a July 29, 2021 hearing examination in which audiometric testing resulted in pure tone thresholds as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 40 45 70 75 80 LEFT 30 35 75 77 80 The average thresholds were 68 for the right ear and 66 for the left ear. Speech discrimination scores were 72 percent in the right ear and 68 percent in the left ear. Applying these results to Table VI, the Veteran's hearing acuity warrants a Level VI for the right ear and a Level VI for the left ear. Applying these levels to Table VII, Percentage Evaluation of Hearing Impairment, the Veteran is rated at a 30 percent hearing loss. Following the Board's remand and the recent audiometric evaluation the RO increased the Veteran's initial rating to 30 percent in an August 2019 rating decision. The remaining evidence of record does not contain any additional audiological testing. The Board has considered and weighed the lay statements submitted by the Veteran regarding his inability to hear well. He is competent to describe his hearing loss. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, the Veteran's description of his service-connected disability must be considered in conjunction with the clinical evidence of record as well as the pertinent rating criteria. In this regard, the Board emphasizes that disability ratings are derived by a mechanical application of the rating schedule to the Veteran's test results. Lendenmann, 3 Vet. App. at 349. Thus, the Board has no discretion in generating the ratings and must predicate its determination on the basis of the results of the audiology studies of record. Here, mechanical application of the rating schedule to the audiometric findings shows that the Veteran's hearing loss disability meets the audiometric findings of a 10 percent rating, but no higher prior to November 4, 2020, and a 20 percent rating, but no higher from November 4, 2020 to July 29, 2021. Prior to November 4, 2020, the decrease in hearing acuity that would warrant a higher disability evaluation was not factually ascertainable. (Continued on the next page) In Martinak v. Nicholson, 21 Vet. App. 447, 455-56 (2007), the Court held that, relevant to VA audiological examinations, in addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in his or her final report. In this case, the VA examinations discussed above addressed functional effects of hearing loss by noting that the Veteran experienced difficulty hearing, especially during conversational speech. These functional effects of the Veteran's hearing loss disability are factors considered by the VA rating criteria for hearing loss. For the foregoing reasons, the Board finds that a rating increase for the Veteran's bilateral hearing loss prior to November 4, 2020 is not warranted. Resolving reasonable doubt in favor of the Veteran, a rating increase to 20 percent, but no higher, is warranted from November 4, 2020 to July 28, 2021. A rating increase in excess of 30 percent from July 29, 2021 is not warranted. KRISTI L. GUNN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Adams Hill, 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.