Citation Nr: 21075833 Decision Date: 12/21/21 Archive Date: 12/21/21 DOCKET NO. 17-31 747 DATE: December 21, 2021 ORDER Entitlement to a compensable rating for the period prior to December 2, 2016 for bilateral hearing loss is denied. Entitlement to a rating in excess of 10 percent for the period from December 2, 2016 to September 13, 2020 for bilateral hearing loss is denied. Entitlement to a rating in excess of 30 percent for the period from September 14, 2020 for bilateral hearing loss is denied. FINDINGS OF FACT 1. Prior to December 2, 2016, the Veteran's bilateral hearing loss was manifested by hearing loss no worse than Level I in the right ear and Level IV in the left ear. 2. For the period from December 2, 2016 to September 13, 2020, the Veteran's bilateral hearing loss was manifested by hearing loss no worse than Level III in the right ear and Level VI in the left ear, with an exceptional pattern of hearing impairment in the left ear. 3. For the period from September 14, 2020, the Veteran's bilateral hearing loss was manifested by hearing loss no worse than Level VI in the right ear and Level VII in the left ear, with an exceptional pattern of hearing impairment in both ears. CONCLUSIONS OF LAW 1. The criteria for a compensable rating for the period prior to December 2, 2016 for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.85, 4.86, Diagnostic Code 6100. 2. The criteria for a rating in excess of 10 percent for the period from December 2, 2016 to September 13, 2020 for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.85, 4.86, Diagnostic Code 6100. 3. The criteria for a rating in excess of 30 percent for the period from September 14, 2020 for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1975 to December 2002. This matter is before the Board of Veterans' Appeals (Board) on appeal from a January 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). A Board hearing was held before the undersigned in February 2020. A transcript of the hearing is of record. This matter was previously before the Board in April 2020 and December 2020 when it was remanded for further development. Increased Rating Bilateral Hearing Loss The Veteran contends that he is entitled to a compensable rating for the period prior to December 2, 2016; a rating in excess of 10 percent for the period from December 2, 2016 to September 13, 2020; and a rating in excess of 30 percent for the period from September 14, 2020 for his service-connected bilateral hearing loss. Generally, disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The Rating Schedule is primarily a guide used in the evaluation of disabilities 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. A Veteran's entire history is to be considered when making disability evaluations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Board acknowledges that with respect to a claim for an increased rating for an already service-connected disability, a Veteran may experience multiple distinct degrees of disability that might result in different levels of compensation. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). The following analysis is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. In evaluating hearing loss, disability ratings for a hearing impairment are derived by a mechanical application of the Rating Schedule to the numeric designations assigned after audiometric evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Hearing loss disability evaluations range from noncompensable to 100 percent based on organic impairment of hearing acuity, as measured by controlled speech discrimination tests (Maryland CNC) in conjunction with the average hearing threshold, as measured by pure tone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 Hertz cycles per second (Hertz or Hz). The Rating Schedule establishes 11 auditory acuity levels designated from Level I, for essentially normal hearing acuity, through Level XI, for profound deafness. VA audiometric examinations are conducted using a controlled speech discrimination test together with the results of a pure tone audiometry test. The vertical lines in Table VI (in 38 C.F.R. § 4.85) represent nine categories of the percentage of discrimination based on the controlled speech discrimination test. The horizontal columns in Table VI represent nine 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 (in 38 C.F.R. § 4.85) by intersecting the vertical column appropriate for the numeric designation for the ear having the better hearing acuity and the horizontal row appropriate to the numeric designation level for the ear having the poorer hearing acuity. For example, if the better ear has a numeric designation Level of "V" and the poorer ear has a numeric designation Level of "VII," the percentage evaluation is 30 percent. See 38 C.F.R. § 4.85. Under 38 C.F.R. § 4.86, which addresses exceptional patterns of hearing impairment, 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 numeric designation Level 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). When the average puretone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hz, the rating specialist will determine the numeric designation Level 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. Each ear will be evaluated separately. 38 C.F.R. § 4.86(b). Prior to December 2, 2016 The record reflects that the Veteran underwent a hearing evaluation in October 2014, as noted in VA treatment records. The actual audiogram which lists the puretone thresholds was not included in the records; however, the evaluator noted that the test results indicated that there was no clinically significant threshold shifts as compared to the Veteran's last evaluation in 2013. The evaluator also indicated that the test results were not valid for rating purposes. In January 2015, the Veteran underwent a VA examination for hearing loss, which revealed puretone thresholds, in decibels, as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 20 60 65 75 55 LEFT 20 65 85 80 63 The Veteran's Maryland CNC speech discrimination test revealed speech recognition ability of 96 percent in the right ear and 80 percent in the left ear. Application of the January 2015 pure tone threshold average levels and speech recognition ability (percentage of discrimination) using Table VI results in Roman Numeral I in the right ear and Roman Numeral IV in the left ear. When these numeric designation Levels are combined in Table VII, they indicate a noncompensable rating should be assigned. Based on the results of the January 2015 VA examination, the Veteran's bilateral hearing loss fails to qualify as an exceptional pattern of hearing impairment under 38 C.F.R. § 4.86, as the puretone thresholds at 1000, 2000, 3000, and 4000 Hertz were not 55 decibels or more and the Veteran's hearing loss in either ear was not shown to have both a puretone threshold at 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz. After review of the evidence during this period, the Board finds the audiometric findings do not reflect hearing impairment that would warrant a compensable rating. While the results of the October 2014 evaluation are not of record and the evaluator did not provide an explanation as to why the results were inadequate, the Veteran underwent a VA examination a few months later, and the results of that examination are adequate for rating the Veteran's bilateral hearing loss. Therefore, the Board concludes the evidence of record for this period is adequate for rating the Veteran's hearing loss disability. The Board has considered any lay evidence provided by the Veteran. The Veteran is competent to report difficulty with his hearing; however, disability ratings for hearing loss are derived from a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). Hence, the preponderance of the evidence is against a finding that the Veteran is entitled to a compensable rating for the period prior to December 2, 2016. From December 2, 2016 to September 13, 2020 The evidence for this period includes a VA audiological evaluation conducted in December 2016. Puretone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 30 60 75 80 61 LEFT 25 70 85 90 68 Speech discrimination testing revealed speech recognition ability of 84 percent in the right ear and 80 percent in the left ear. The Board notes that it is not entirely clear from the record whether the Maryland CNC word list was used. However, the Board will resolve reasonable doubt in the Veteran's favor and conclude the speech discrimination testing was completed using the Maryland CNC word list. Application of the December 2016 pure tone threshold average levels and speech recognition ability (percentage of discrimination) using Table VI results in Roman Numeral III in the right ear and Roman Numeral IV in the left ear. When these numeric designation Levels are combined in Table VII, they indicate a 10 percent rating should be assigned. However, given that the puretone thresholds were 30 decibels or less at 1000 Hz and 70 decibels or more at 2000 Hz in the left ear, the Veteran had an exceptional pattern of hearing impairment in the left ear according to 38 C.F.R. § 4.86(b). As such, Table VIA will also be used for rating purposes. Using Table VIA, the Rating Schedule shows Level V hearing acuity in the left ear. See 38 C.F.R. § 4.85, Table VIA, Diagnostic Code 6100. As Table VIA results in a higher level of hearing acuity in the left ear, the Roman Numeral designation level found under Table VIA will be used for the left ear. As 38 C.F.R. § 4.86(b) further directs that the Roman Numeral designation found under Table VIA shall be elevated to the next higher Roman numeral, the results indicate a Level VI hearing acuity is appropriate for the left ear. Therefore, application of the resulting Roman Numeral VI for the left ear and Level III for the right ear to 38 C.F.R. § 4.85, Table VII, equates to a 10 percent rating. In December 2019, the Veteran underwent an additional VA audiological evaluation. Audiometric results of the evaluation are in the form of an audiometric chart, as opposed to a table. However, the process of reading the raw data from the chart used to report it requires no specialized medical training or knowledge; no interpretation is needed to transcribe the numbers from one form to another. While the United States Court of Appeals for Veterans Claims (Court) may not do so, citing such as "fact finding," the Board, as triers of fact, are entitled to do so. Kelly v. Brown, 7 Vet. App. 471 (1995). In the role as fact finder, the Board has reviewed the graphical findings of the December 2019 audiological report and determined that the results are as follows, with pure tone thresholds in decibels: HERTZ 1000 2000 3000 4000 Average RIGHT 30 60 65 75 58 LEFT 25 70 80 85 65 In correspondence received in July 2021, it was clarified that speech discrimination testing was completed using the CID W-22 word list, rather than the Maryland CNC word list, so the speech discrimination test results are inadequate for rating purposes. See 38 C.F.R. § 4.85(a). Additionally, there is no indication from the audiometry report that speech discrimination testing using the Maryland CNC word list was not appropriate due to such reasons as language difficulties or inconsistent speech discrimination scores; thus, Table VI is not for application. While the puretone thresholds reflect an exceptional pattern of hearing impairment in the left ear according to 38 C.F.R. § 4.86(b), one was not shown in the right ear. Thus, Table VIA cannot be used to rate the Veteran's hearing impairment. As neither Table VI nor Table VIA can be used, the results of the December 2019 VA audiological evaluation are not valid for rating purposes. After review of the evidence during this period, the Board finds the audiometric findings do not reflect hearing impairment that would warrant a rating in excess of 10 percent. The Board has considered any lay evidence provided by the Veteran. The Veteran is competent to report difficulty with his hearing; however, disability ratings for hearing loss are derived from a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). Hence, the preponderance of the evidence is against a finding that the Veteran is entitled to a rating in excess of 10 percent for bilateral hearing loss for the period from December 2, 2016 to September 13, 2020. From September 14, 2020 The evidence for this period includes a September 2020 VA examination, which revealed puretone thresholds, in decibels, as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 25 70 80 85 65 LEFT 25 80 90 90 71 The Veteran's Maryland CNC speech discrimination test revealed speech recognition ability of 100 percent in the right ear and 76 percent in the left ear. Application of the September 2020 pure tone threshold average levels and speech recognition ability (percentage of discrimination) using Table VI results in Roman Numeral II in the right ear and Roman Numeral IV in the left ear. When these numeric designation Levels are combined in Table VII, they indicate a noncompensable rating should be assigned. However, given that the puretone thresholds were 30 decibels or less at 1000 Hz and 70 decibels or more at 2000 Hz in both ears, the Veteran has an exceptional pattern of hearing impairment according to 38 C.F.R. § 4.86(b). As such, Table VIA will also be used for rating purposes. Using Table VIA, the Rating Schedule shows Level V hearing acuity in the right ear and Level VI hearing acuity in the left ear. See 38 C.F.R. § 4.85, Table VIA, Diagnostic Code 6100. As Table VIA results in a higher level of hearing acuity in both ears, the Roman Numeral designation level found under Table VIA will be used for both ears. As 38 C.F.R. § 4.86(b) further directs that the Roman Numeral designation found under Table VIA shall be elevated to the next higher Roman numeral, the results indicate a Level VI hearing acuity in the right ear and Level VII hearing acuity in the left ear, which equates to a 30 percent rating. After review of the evidence during this period, the Board finds the audiometric findings do not reflect hearing impairment that would warrant a rating in excess of 30 percent. The Board has considered any lay evidence provided by the Veteran. The Veteran is competent to report difficulty with his hearing; however, disability ratings for hearing loss are derived from a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing. See Lendenmann, 3 Vet. App. 345. Hence, the preponderance of the evidence is against a finding that the Veteran is entitled to a rating in excess of 30 percent for bilateral hearing loss for the period from September 14, 2020. The rating criteria contemplate speech reception thresholds and ability to hear spoken words on Maryland CNC testing. The functional impact that the Veteran describes, which includes difficulty communicating in the presence of background noise and difficulty hearing female voices, is contemplated by the rating criteria. Doucette v. Shulkin, 28 Vet. App. 366 (2017). The Veteran's main complaint is reduced hearing acuity and clarity, which is what is contemplated in the rating assigned. See Rossy v. Shulkin, 29 Vet. App. 142, 145 (2017). Based on the foregoing discussion, the Board finds a preponderance of the evidence is against finding that the Veteran is entitled to a compensable rating for the period prior to December 2, 2016; a rating in excess of 10 percent for the period from December 2, 2016 to September 13, 2020; and a rating in excess of 30 percent for the period from September 14, 2020 for his service-connected bilateral (Continued on next page) hearing loss. The Board has considered the benefit-of-the-doubt rule; however, since a preponderance of the evidence is against the Veteran's claim, the benefit-of-the-doubt rule is not for application. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. M. SORISIO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Jiggetts 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.