Citation Nr: 21073312 Decision Date: 12/08/21 Archive Date: 12/08/21 DOCKET NO. 20-24 977 DATE: December 8, 2021 ORDER Entitlement to an initial compensable disability rating prior to November 18, 2020 and in excess of 10 percent thereafter for service-connected bilateral hearing loss is denied. FINDINGS OF FACT 1. Prior to November 18, 2020, audiometric findings show that the Veteran has had no more than Level II hearing acuity in the right ear and Level IV hearing acuity in the left ear; he has not had an exceptional pattern of hearing loss at any time. 2. From November 18, 2020, audiometric findings show that the Veteran has had no more than Level IV hearing acuity, bilaterally; he has not had an exceptional pattern of hearing loss at any time. CONCLUSIONS OF LAW 1. Prior to November 18, 2020, the criteria for an initial compensable disability rating for bilateral hearing loss 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. From November 18, 2020, the criteria for a disability rating in excess of 10 percent for bilateral hearing loss 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. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1961 to August 1962. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2018 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This case was most recently before the Board in May 2021 when it was remanded for additional development. It has returned for adjudication. Entitlement to an initial compensable disability rating prior to November 18, 2020 and in excess of 10 percent thereafter for service-connected bilateral hearing loss The Veteran asserts that his service-connected hearing loss disability is worse than is reflected by the current disability ratings assigned. A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 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 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. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as staged ratings. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's bilateral hearing loss is rated noncompensable prior to November 18, 2020 and 10 percent disabling thereafter under 38 C.F.R. § 4.86, Diagnostic Code 6100. The assignment of disability ratings for impairment of hearing acuity is derived by the mechanical application of the Rating Schedule to the numeric designations assigned, after audiometric evaluations are rendered. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). The Rating Schedule provides a table for rating purposes (Table VI) to determine a Roman numeral designation (at Levels I through XI) for hearing impairment. Table VII is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment in both ears. See 38 C.F.R. § 4.85. VA rating criteria for evaluating hearing loss disability provide ratings from 0 (noncompensable) to 100 percent, based on the results of controlled speech discrimination tests together with the results of puretone audiometry tests. 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100. "Puretone threshold average," as used in Table VI, is the sum of the pure tone thresholds at 1000, 2000, 3000 and 4000 Hertz, divided by four. Average puretone decibel loss is located on Table VI along a horizontal axis, and percent of speech discrimination is located along a vertical axis. These axes intersect to determine the Roman numeral designation for hearing impairment in each ear. The results are then matched between the "better" ear and the "poorer" ear on Table VII to produce a disability rating under Diagnostic Code 6100. When the puretone threshold at each of the four specified frequencies (1,000, 2,000, 3,000 and 4,000 Hertz) is 55 decibels or more, Table VI or Table VIa is to be used, whichever results in the higher numeral. 38 C.F.R. § 4.86(a). Additionally, when the puretone threshold is 30 decibels or less at 1,000 Hertz, and 70 decibels or more at 2,000 Hertz, Table VI or Table VIa is to be used, whichever results in the higher numeral. Thereafter, that numeral will be elevated to the next higher numeral. 38 C.F.R. § 4.86(b). 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 pure tone audiometry test. Examinations will be conducted without hearing aids. 38 C.F.R. § 4.85(a). In Martinak v. Nicholson, 21 Vet. App. 447 (2007), the U.S. Court of Appeals for Veterans Claims (Court) held that 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. Martinak, 21 Vet. App. at 455. The Court also noted, however, that even if an audiologist's description of the functional effects of a veteran's hearing disability was somehow defective, the veteran bore the burden of demonstrating any prejudice caused by a deficiency in the examination. Id. The Veteran submitted private audiological testing dated in November 2015. The examiner noted puretone thresholds for the right ear, in decibels, at 1000, 2000, 3000, and 4000 Hz as follows: 45, 30, 75, and 80, for an average of 58; and puretone thresholds for the left ear, in decibels, at 1000, 2000, 3000, and 4000 Hz as follows: 45, 30, 70, and 70, for an average of 54. The Veteran provided an additional private audiological evaluation from Metro ENT dated in February 2018. The examiner noted puretone thresholds for the right ear, in decibels, at 1000, 2000, 3000, and 4000 Hz as follows: 45, 30, 75, and 80, for an average of 58; and puretone thresholds for the left ear, in decibels, at 1000, 2000, 3000, and 4000 Hz as follows: 45, 35, 60, and 80, for an average of 55. A word discrimination score from that date was 60 percent in the right ear and 90 percent in the left ear. The Veteran was afforded a VA audiological examination in September 2018. The examiner noted puretone thresholds for the right ear, in decibels, at 1000, 2000, 3000, and 4000 Hz as follows: 45, 40, 80, and 80, for an average of 61; and puretone thresholds for the left ear, in decibels, at 1000, 2000, 3000, and 4000 Hz as follows: 50, 50, 75, and 80, for an average of 64. The speech recognition scores, using the Maryland CNC Test, were 92 percent in the right ear and 82 percent in the left ear. The examiner noted that the Veteran's hearing loss would impact his ordinary conditions of daily life, including his ability to work, because he has difficulty understanding what people are saying. Evaluating the VA audiological test results cited above, the Board finds that when the pure tone threshold averages and the speech recognition scores for the right ear from the 2018 VA examination are applied to Table VI, the numeric designation of hearing impairment is Level II. When the pure tone threshold averages and speech recognition scores for the left ear are applied to Table VI, the numeric designation of impairment is Level IV. When these numeric designations for the right and left ears from the VA examinations are applied to Table VII (Percentage Evaluation for Hearing Impairment Diagnostic Code 6100), the percentage of disability for hearing impairment is 0 percent for this examination. Additionally, the provisions of 38 C.F.R. § 4.86 which address exceptional patterns of hearing loss are not applicable. There is no showing that Veteran had an exceptional pattern of hearing loss in either ear. In correspondence dated in May 2020, the Veteran stated that there were testing errors during the September 2018 examination due to his guessing words during the word recognition portion of the test. He noted that he has since purchased hearing aids but that he continued to have difficulty understanding people. After review of the above, the Board finds that an initial compensable disability rating is not warranted for the Veteran's service-connected bilateral hearing loss. Notably, the Board has considered the February 2018 private audiological evaluation demonstrating worse speech discrimination scores. However, correspondence received in August 2021 from Metro ENT states that they did not use the Maryland CNC word list for their word discrimination scoring. Accordingly, those scores cannot be used to evaluate the level of disability for VA purposes. See 38 C.F.R. § 4.85(a). The Veteran was afforded an additional VA examination in November 2020. At that time, the examiner noted puretone thresholds for the right ear, in decibels, at 1000, 2000, 3000, and 4000 Hz as follows: 50, 40, 80, and 80, for an average of 63; and puretone thresholds for the left ear, in decibels, at 1000, 2000, 3000, and 4000 Hz as follows: 55, 50, 75, and 75, for an average of 64. The speech recognition scores, using the Maryland CNC Test, were 80 percent in the right ear and 82 percent in the left ear. The examiner noted that the Veteran's hearing loss would impact his ordinary conditions of daily life, including his ability to work, because he misses conversations without his hearing aids and continues to have difficulty understanding people even with them in. The examiner further noted that the Veteran's mild sloping to severe sensorineural hearing loss would "significantly" impair the Veteran's ability to understand speech at a normal conversational level in a variety of different environments. The Veteran would have difficulty understanding verbal instruction/direction from employers, understanding coworkers, and communication with the general public. Evaluating the VA audiological test results cited above, the Board finds that when the pure tone threshold averages and the speech recognition scores for the right ear from the VA examination in 2020 are applied to Table VI, the numeric designation of hearing impairment is Level IV. When the pure tone threshold averages and speech recognition scores for the left ear are applied to Table VI, the numeric designation of impairment is Level IV. When these numeric designations for the right and left ears from the VA examinations are applied to Table VII, the percentage of disability for hearing impairment is 10 percent for this examination. There is no showing that Veteran had an exceptional pattern of hearing loss in either ear. In a March 2021 Brief, the Veteran's representative indicated that the Veteran's hearing loss disability has been consistently severe throughout the period on appeal. After a review of the evidence, the Board finds that a rating in excess of 10 percent for the Veteran's service-connected bilateral hearing loss is not warranted at any time during this period. The Board is sympathetic to the Veteran's assertion that his service-connected bilateral hearing loss warrants higher disability ratings. During his VA audiological examinations, the Veteran described his bilateral hearing loss as negatively affecting his ability to understand others. Indeed, the evidence of record, as detailed above, shows the Veteran's worsening bilateral hearing acuity and its impact on his life. However, there is no evidence of record demonstrating that the Veteran has shown bilateral hearing acuity that allows the Board to consider diagnostic criteria beyond such discussed above. In this regard, as noted above, the assignment of disability evaluations for hearing impairment is a purely mechanical application of the rating criteria from which the Board cannot deviate. Lendenmann, 3 Vet. App. at 349; see also Massey v. Brown, 7 Vet. App. 204, 208 (1994) (finding the Board may only consider the specific factors as are enumerated in the applicable rating criteria). In sum, the Board has considered whether a higher disability rating is warranted for any period of time during the pendency of this appeal. Prior to November 18, 2020, the Board finds that the evidence of record demonstrates that an initial compensable rating for service-connected bilateral hearing loss was not warranted. Effective November 18, 2020, the evidence demonstrates that a disability rating in excess of 10 percent is not warranted. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). CAROLINE B. FLEMING Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Connor, 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.