Citation Nr: 21076911 Decision Date: 12/28/21 Archive Date: 12/28/21 DOCKET NO. 17-42 425 DATE: December 28, 2021 ORDER Entitlement to an initial rating in excess of 30 percent prior to August 24, 2021, and in excess of 50 percent, thereafter, for bilateral hearing loss, is denied. FINDINGS OF FACT 1. Prior to August 24, 2021, the Veteran's bilateral hearing loss manifested by no more than level VII hearing loss in the right ear and VI in the left ear. 2. From August 24, 2021, the Veteran's bilateral hearing loss manifested by no more than level VIII hearing loss in the right ear and IX in the left ear. CONCLUSIONS OF LAW 1. Prior to August 24, 2021, the criteria for an initial rating in excess of 30 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 (DC) 6100. 2. From August 24, 2021, the criteria for a rating in excess of 50 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, DC 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1953 to February 1955. In May 2021, the Board noted that the Veteran complained of right ear pain and the sensation that there was a "small ball" in the ear canal. Also, his VA outpatient treatment records noted complaints of dizziness/vertigo. Based on this information, the Board remanded the claim to determine the etiology of these symptoms. In a September 2021 VA examination, the examiner determined that the symptoms were due to benign paroxysmal positional vertigo. In its November 2021 rating decision, the agency of original jurisdiction (AOJ) granted service connection for benign paroxysmal positional vertigo. As such, the Board will not address these symptoms in this decision. Entitlement to an increased rating for bilateral hearing loss Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which allows for ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. 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. 38 C.F.R. § 4.7. To evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of a Veteran's condition. 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 the question for consideration is the propriety of the initial rating 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). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in this decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran's service-connected bilateral hearing loss is rated under 38 C.F.R. § 4.85, DC 6100. The Rating Schedule, 38 C.F.R. § 4.85, DC 6100, sets out the criteria for evaluating hearing impairment using puretone threshold averages and speech discrimination scores. Numeric designations are assigned based upon a mechanical use of tables found in 38 C.F.R. § 4.85. Scores are matched against Table VI to find the numeric designation, then the designations are matched with Table VII to find the percentage evaluation to be assigned for the hearing impairment. To evaluate the degree of disability from defective hearing, the Rating Schedule establishes eleven auditory acuity levels from level I for essentially normal acuity through level XI for profound deafness. 38 C.F.R. §§ 4.85, 4.86, Tables VI, VIa, VII. Organic impairment of hearing acuity is measured by the results of controlled speech discrimination tests together with the average hearing threshold level as measured by a pure tone audiometry test in the frequencies of 1000, 2000, 3000, and 4000 cycles per second. See 38 C.F.R. § 4.85(a), (d). Ratings of hearing loss disability involve mechanical application of the rating criteria to the findings on official audiometry. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). Special provisions apply in instances of exceptional hearing loss. See 38 C.F.R. § 4.86. When the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) are all 55 decibels or more, the adjudicator must determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa in 38 C.F.R. § 4.85, whichever results in the higher numeral. 38 C.F.R. § 4.86(a). Also, when the puretone 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. Each ear is evaluated separately. 38 C.F.R. § 4.86(b). Analysis The Veteran contends that his bilateral hearing loss is more severe than the ratings depict. In June 2016, the Veteran submitted an audiological examination from his VA audiologist. The examiner stated that the Veteran's 2011 hearing evaluation revealed mild to profound hearing loss, bilaterally. However, the examination contains the results of a speech recognition test but does not state whether the Maryland CNC speech recognition test was used. For this reason, the private audiological exam is not competent evidence for rating purposes. See 38 U.S.C. § 4.85(a). The Veteran's VA treatment records note that the Veteran was prescribed hearing aids. In July 2016, the Veteran was afforded a VA audiological examination to determine the severity of his bilateral hearing loss. Puretone threshold levels in decibels were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 45 55 80 90 100 LEFT 35 45 75 85 100 The average puretone threshold findings at 1000, 2000, 3000, and 4000 Hertz (HZ) for the right and left ears were 81 and 76, respectively. Speech recognition scores based on the Maryland CNC Test for the right and left ears were 80 and 72 percent, respectively. Testing revealed sensorineural bilateral hearing loss at 500-4000 Hz. After applying the above audiological findings to Table VI in 38 C.F.R. § 4.85, the Veteran's numeric designation was level V in the right ear and VI in the left. Such a degree of hearing loss warrants a 20 percent evaluation under Table VII. The Board recognizes that each of the four specified right ear frequencies (1000, 2000, 3000, and 4000 Hertz) were all 55 decibels or more, i.e., exceptional pattern of hearing loss. 38 C.F.R. § 4.86. As noted above, the average puretone threshold findings at 1000, 2000, 3000, and 4000 HZ for the right ear was 81. When assessing hearing loss based on pure tone threshold alone, the Veteran has level VII in the right ear. When paired with the left ear level VI hearing loss, the Veteran's hearing loss warrants a 30 percent evaluation under Table VII. In August 2021, the Veteran was afforded a VA audiological examination to determine the severity of his bilateral hearing loss. Puretone threshold levels in decibels were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 45 55 80 85 100 LEFT 40 50 70 80 105 The average puretone threshold findings at 1000, 2000, 3000, and 4000 Hertz (HZ) for the right and left ears were 80 and 76.25, respectively. Speech recognition scores based on the Maryland CNC Test for the right and left ears were 56 and 50 percent, respectively. Testing revealed sensorineural bilateral hearing loss at 500-4000 Hz. After applying the above audiological findings to Table VI in 38 C.F.R. § 4.85, the Veteran's numeric designation was level VIII in the right ear and IX in the left. Such a degree of hearing loss warrants a 50 percent evaluation under Table VII. The Board recognizes that each of the four specified right ear frequencies (1000, 2000, 3000, and 4000 Hertz) were all 55 decibels or more, i.e., exceptional pattern of hearing loss. 38 C.F.R. § 4.86. As noted above, the average puretone threshold findings at 1000, 2000, 3000, and 4000 HZ for the right ear was 80. When assessing hearing loss based on pure tone threshold alone, the Veteran has level VII in the left ear. When paired with the left ear level IX hearing loss, the Veteran's hearing loss warrants a 50 percent evaluation under Table VII. Based on the evidence of record, the Board finds that prior to August 24, 2021, a rating in excess of 30 percent is not warranted for the Veteran's bilateral hearing loss. The Board notes, at worst, the Veteran's right ear numeric designation was level VII, and his left ear designation was VI. Such a degree of hearing loss warrants a 30 percent evaluation under Table VII. From August 24, 2021, the Board finds that a rating in excess of 50 percent is not warranted for the Veteran's bilateral hearing loss. At worse, the Veteran's right ear numeric designation was level VIII, and his left ear designation was IX. Such a degree of hearing loss warrants a 50 percent evaluation under Table VII. The Board has considered the Veteran's lay statements and finds that he is both competent and credible in regard to reporting the functional effects of his condition. However, the results of testing prepared by skilled professionals are more probative of the degree of the disability because the schedular criteria are predicated on audiological findings rather than subjective reports of severity of hearing loss. As indicated above, ratings of hearing loss disability involve mechanical application of the rating criteria to the findings on official audiometry. See Lendenmann, supra. The Board is bound to apply the VA Rating Schedule, under which the rating criteria are defined by audiometric test findings. As such, the Board finds that the preponderance of the evidence is against the Veteran's claim. Therefore, the claim must be denied. MICHAEL LANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Moore, T. 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.