Citation Nr: 21075445 Decision Date: 12/20/21 Archive Date: 12/20/21 DOCKET NO. 16-38 690 DATE: December 20, 2021 ORDER Entitlement to a compensable rating for bilateral sensorineural hearing loss (SNHL) is denied. FINDING OF FACT For the entirety of the appeal, the Veteran's bilateral SNHL was not manifested by more than Level II hearing loss in both ears. CONCLUSION OF LAW The criteria for a compensable rating for bilateral SNHL have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. § 4.85, Diagnostic Code 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1963 to January 1971. The Board acknowledges that subsequent to the certification of the Veteran's appeal of the rating assigned for the bilateral SNHL, he submitted a new claim seeking an increased rating for the condition. Rather than dismiss the claim on the grounds that the Veteran already had an extant claim for the same benefit on appeal, the Agency of Original Jurisdiction (AOJ) readjudicated the matter in a September 2018 rating decision. The AOJ confirmed the denial of a compensable rating for the condition in that rating decision, and the Veteran did not appeal the decision. As such, it is final, and has no bearing on the Board's ultimate determination as to the propriety of the rating assigned for the bilateral SNHL. To that end, the Board notes that although development undertaken in support of the new claim seeking a compensable rating for bilateral SNHL would ordinarily require reevaluation by the AOJ, the Veteran's representative has explicitly waived such review and so there is no need to return the case to the AOJ for this reason. The Board also notes that subsequent to the certification of the case to the Board the Veteran was scheduled for a hearing in June 2019 before a Veterans Law Judge. The Veteran requested that the hearing be rescheduled, and it was ultimately scheduled for September 2021. Internal memoranda indicate that the Veteran contacted VA and requested that the hearing be cancelled and that the Board should proceed with its adjudication of the matter. As such, the Board finds that there are no procedural defects to resolve prior to adjudicating the Veteran's claim, and that it may do so without prejudice to the Veteran. The Board has considered whether a claim for a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) has been raised by the Veteran during the pendency of this appeal. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) held that VA must address the issue of entitlement to TDIU in increased rating claims when the issue of unemployability either is raised expressly or by the record. A review of available VA treatment records does not reflect that the Veteran ever asserted that the symptomatology associated with his bilateral SNHL precluded him from securing and following substantially gainful employment. Moreover, the VA examiners of record who have evaluated the severity of the hearing loss did not find that it had such a severe impact on the Veteran's occupational functioning during the appeal period that he was precluded from securing and following substantially gainful employment. Accordingly, a claim for TDIU has not been raised by the record. The Veteran contends generally that a compensable rating is warranted for his bilateral SNHL for the entirety of the appeal, which extends back to July 31, 2013. Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. In cases in which a claim for a higher initial evaluation stems from an initial grant of service connection for the disability at issue, multiple ("staged") ratings may be assigned for different periods of time during the pendency of the appeal. See generally Fenderson v. West, 12 Vet. App. 119 (1999). Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings. See Francisco v. Brown, 7 Vet. App. 55 (1994); 38 C.F.R. § 4.2. Staged ratings are, however, appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. 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 required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. The Rating Schedule establishes 11 auditory hearing acuity levels based upon average pure tone thresholds and speech discrimination. See 38 C.F.R. § 4.85, Diagnostic Code 6100. Evaluations of bilateral defective hearing range from noncompensable 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 pure tone audiometry tests in the frequencies of the 1000, 2000, 3000, and 4000 Hertz (cycles per second). The audiometric test results are then translated into a numeric designation ranging from Level I to Level XI, in order to evaluate the degree of disability from bilateral service-connected defective hearing. Id. 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. See Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). Even if an audiologist's description of the functional effects of a veteran's hearing disability was somehow defective, the Veteran bears the burden of demonstrating any prejudice caused by a deficiency in the examination. Id. A June 2013 audiology evaluation submitted by the Veteran and produced by a private treatment provider revealed the following pure tone thresholds, in decibels: 1000 2000 3000 4000 RIGHT 10 15 10 35 LEFT 15 15 55 55 The average pure tone threshold in the right ear was 17.5 and in the left ear was 35. Speech audiometry revealed a speech recognition score of 88 percent in the right ear and 96 percent in the left ear; however, the examiner did not indicate whether they utilized the Maryland CNC test for this speech audiometry testing. It would be inappropriate to utilize the speech recognition findings recorded in the above-detailed audiometric testing without the noted use of the Maryland CNC word list as required by 38 C.F.R. § 4.85(a). To that end, the Board finds that it may be more appropriate to utilize Table VIa of Diagnostic Code 6100 and eschew the application of speech recognition findings altogether. See 38 C.F.R. § 4.85(c). Applying the June 2013 testing results to Table VIa shows Level I hearing acuity in both ears. See 38 C.F.R. § 4.85, Table VIa, Diagnostic Code 6100. Applying these findings to 38 C.F.R. § 4.85, Table VII of the Rating Schedule results in a noncompensable disability rating for bilateral hearing loss. The Veteran was afforded a VA audiology examination in April 2014. Audiometric testing revealed the following pure tone thresholds: 1000 2000 3000 4000 RIGHT 10 15 15 40 LEFT 15 15 55 60 The average pure tone threshold in the right ear was 20 and in the left ear was 36.25. Speech audiometry using the Maryland CNC test revealed a speech recognition score of 90 percent in the right ear and 88 percent in the left ear. As for the functional impact of the hearing loss, the Veteran reported that he has difficulty hearing conversation as well as the television, and that he is often told that he talks too loudly. Applying the results from the April 2014 examination to Table VI under the criteria shows Level II hearing impairment in both ears. Applying these findings to Table VII of the Rating Schedule results in a noncompensable evaluation for bilateral hearing loss under Diagnostic Code 6100. A January 2017 audiology evaluation submitted by the Veteran and produced by a private treatment provider revealed the following pure tone thresholds: 1000 2000 3000 4000 RIGHT 15 15 15 55 LEFT 15 20 20 55 The average pure tone threshold in the right ear was 25 and in the left ear was 27.5. Speech audiometry revealed a speech recognition score of 100 percent in both ears; however, the examiner did not indicate whether they utilized the Maryland CNC test for this speech audiometry testing. As stated previously, since it is unclear whether the Maryland CNC word list was used for the speech audiometry testing during the January 2017 audiology evaluation, the Board will apply the results of that testing to Table Via, which shows Level I hearing acuity in both ears. See 38 C.F.R. § 4.85, Table VIa, Diagnostic Code 6100. Applying these findings to 38 C.F.R. § 4.85, Table VII of the Rating Schedule results in a noncompensable disability rating for bilateral hearing loss under Diagnostic Code 6100. The Veteran was also afforded a VA audiology examination in September 2018 in support of his separate claim also seeking entitlement to a compensable rating for bilateral SNHL (the Board reiterates that AOJ review of this evidence has been waived). Audiometric testing revealed the following pure tone thresholds: 1000 2000 3000 4000 RIGHT 20 20 20 50 LEFT 25 25 65 65 The average pure tone threshold in the right ear was 27.5 and in the left ear was 45. Speech audiometry using the Maryland CNC test revealed a speech recognition score of 92 percent in the right ear and 88 percent in the left ear. The Veteran did not endorse experiencing any impact on his functioning as due to the bilateral SNHL. Applying the results from the September 2018 examination to Table VI under the criteria shows Level I hearing impairment in the right ear and Level II impairment in the left ear. See Table VI, Diagnostic Code 6100. Applying these findings to Table VII of the Rating Schedule results in a noncompensable evaluation for bilateral hearing loss under Diagnostic Code 6100. In addition to the medical evidence above, the Board has considered the lay evidence provided by the Veteran. He has been followed for bilateral hearing loss through his local VA medical center for the entirety of the appeal period and has consistently reported difficulty in understanding conversation. His treatment has included the prescription of hearing aids. A layperson's testimony is competent evidence regarding the symptoms he experiences. Heuer v. Brown, 7 Vet. App. 379, 384 (1995). However, disability ratings for hearing impairment are derived by a 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). As such, the medical evidence is considered the most probative evidence with regard to the level of severity of the Veteran's service-connected hearing loss. Moreover, the April 2014 and September 2018 VA examiners considered the functional effects of the Veteran's hearing loss during the examinations, and both concluded that the condition did not contribute to any substantial impairment of functioning. Martinak, 21 Vet. App. at 455. Based on the foregoing, the evidence of record shows that a compensable rating is not warranted for the bilateral SNHL at any point during the appeal period. The Board also notes that the Veteran has not specifically contended that the rating criteria are insufficient for evaluating the severity of his bilateral hearing loss disability. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). The appeal is denied. A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Christopher M. Collins, 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.