Citation Nr: 21005464 Decision Date: 02/01/21 Archive Date: 02/01/21 DOCKET NO. 18-44 236 DATE: February 1, 2021 ORDER An initial rating for bilateral hearing loss higher than 0 percent prior to February 9, 2018 is denied. A rating of 10 percent for bilateral hearing loss from February 9, 2018 through November 14, 2019 is granted. A rating higher than 20 percent as of November 15, 2019 is denied. FINDINGS OF FACT 1. Prior to February 9, 2018, the Veteran’s bilateral hearing loss was manifested by puretone threshold averages and speech discrimination scores warranting numerical designations no higher than II for each ear. 2. From February 9, 2018 through November 14, 2019, the Veteran’s bilateral hearing loss was manifested by puretone threshold averages and speech discrimination scores warranting numerical designations of IV, but no higher, for each ear. 3. As of November 15, 2019, the Veteran’s bilateral hearing loss has been manifested by puretone threshold averages and speech discrimination scores warranting numerical designations no higher than VI for the right ear and IV for the left ear. CONCLUSIONS OF LAW 1. Prior to February 9, 2018, the criteria for a rating higher than 0 percent for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.3 4.85, Diagnostic Code 6100. 2. From February 9, 2018 through November 14, 2019, the criteria for a rating of 10 percent, but no higher, for bilateral hearing loss have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.3 4.85, 4.86, Diagnostic Code 6100. 3. As of November 15, 2019, the criteria for a rating higher than 20 percent for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.3 4.85, Diagnostic Code 6100 REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1956 to April 1961. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded the matter for further development in May 2019 and July 2020. Increased Rating VA has adopted a Schedule for Rating Disabilities to evaluate service-connected disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 3.321; see generally, 38 C.F.R. § Part IV. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10. The percentage ratings in the Schedule for Rating Disabilities represent, as far as practicably can be determined, the average impairment in earning capacity resulting from service-connected disabilities in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Diagnostic codes in the rating schedule identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. All reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Because the level of disability may have varied over the course of the claim, the rating may be “staged” higher or lower for segments of time during the period under review in accordance with such variations. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). \ Evaluation of Hearing Loss For the reasons discussed below, the Board finds that the criteria for an initial rating for the Veteran’s bilateral hearing loss higher than 0 percent prior to February 9, 2018 have not been met. From February 9, 2018 through November 14, 2019, the criteria for a 10-percent rating have been met. Since November 15, 2019 (the effective date of the 20-percent rating), the criteria for a rating higher than 20 percent have not been met. A. Rating Criteria for Hearing Loss Hearing loss is evaluated under 38 C.F.R. § 4.85, Diagnostic Code (DC) 6100. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). 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 puretone audiometry test. 38 C.F.R. § 4.85(a). Examinations will be conducted without the use of hearing aids. Id. Table VI (in 38 C.F.R. § 4.85) is used to determine a Roman numeral designation (I through XI) for hearing impairment based on a combination of the percent of speech discrimination and the puretone threshold average. 38 C.F.R. § 4.85(b). The puretone threshold average is the sum of the puretone thresholds at 1000, 2000, 3000, and 4000 Hertz, divided by four. § 4.85(d). The Roman numeral designation is located at the point where the horizontal column corresponding to the percentage of discrimination and the vertical column corresponding to the puretone threshold average intersect. § 4.85(b). Table VIa is used to determine a Roman numeral designation (I through XI) for hearing impairment based only on the puretone threshold average. 38 C.F.R. § 4.85(e). Table VIa will be used when the examiner certifies that the use of the speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc., or when indicated under the provisions of § 4.86 (discussed below). Table VII (in 38 C.F.R. § 4.85) is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment of each ear. 38 C.F.R. § 4.85(e). The horizontal rows represent the ear having the better hearing and the vertical columns the ear having the poorer hearing. Id. The percentage evaluation is located at the point where the row and column intersect. Id. There are alternative criteria for certain exceptional patterns of hearing loss. Specifically, if the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more, the Roman numeral designation for hearing impairment will be determined 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 puretone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, the Roman numeral designation for hearing impairment will be determined 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 will be evaluated separately. 38 C.F.R. § 4.86(b). B. Analysis The October 2016 VA examination report reflects audiometric testing results showing puretone thresholds for the right ear of 50 decibels (dB) at 1000 Hertz, 55 dB at 2000 Hertz, 60 dB at 3000 Hertz, and 70 dB at 4000 Hertz. The puretone threshold average was 59 dB. The speech discrimination score for the right ear was 92 percent. The left ear had puretone thresholds of 50 dB at 1000 Hertz, 60 dB at 2000 Hertz, 60 dB at 3000 Hertz, and 65 dB at 4000 Hertz. The puretone threshold average was 59 dB. The speech discrimination score was 100 percent. Applying Table VI to the above results, each ear is assigned a Roman numeral designation of II. The point where designations II and II intersect in Table VII yields a rating of 0 percent. 38 C.F.R. § 4.85, DC 6100. Audiometric testing was performed for treatment purposes at VA in February 2018. A graphical audiogram from that testing shows designations of “O” and “X” for each ear on the graph. The graph does not contain a key decoding which letter refers to which ear. For purposes of this decision, it does not matter, since the puretone threshold averages were the same for each ear. Moreover, speech discrimination scores were not based on the Maryland CNC word list, and therefore cannot be paired with the puretone thresholds to determine the appropriate rating via Table VI, as will be discussed further below. See 38 C.F.R. § 4.85(a). The ear designated by the letter “O” (likely the right ear) had puretone thresholds of 55 dB at 1000 Hertz, 55 dB at 2000 Hertz, 60 dB at 3000 Hertz, and 70 dB at 4000 Hertz. The puretone threshold average was 60 dB. The ear designated by “X” (likely the left ear) had puretone thresholds of 55 dB at 1000 Hertz, 60 dB at 2000 Hertz, 60 dB at 3000 Hertz, and 65 dB at 4000 Hertz. The puretone threshold average was also 60 dB. A VA examiner reviewed the February 2018 VA audiometric testing. In a November 2020 opinion, the examiner found that the graphical audiogram showed puretone threshold averages of 60 dB with respect to each ear, consistent with the Board’s own reading of that audiogram. The examiner stated that the speech discrimination scores were based on the CID-W22 word lists, and therefore could not be used for rating purposes. In this regard, the Maryland CNC word list is required under the rating criteria. 38 C.F.R. § 4.85(a). While the February 2018 VA audiometric testing results cannot be used to obtain a rating using Table VI, the audiogram shows puretone thresholds of 55 dB or higher at each of the relevant frequencies; consequently, it shows an exceptional pattern of hearing loss for each ear under 38 C.F.R. § 4.86(a). Therefore, Table VIA, which is not based on speech discrimination scores, can be applied. Applying the puretone threshold averages of 60dB in each ear from the February 2018 audiogram to Table VIA, a Roman numeral designation of IV is obtained for each ear. The point where designations IV and IV intersect in Table VII yields a rating of 10 percent. 38 C.F.R. § 4.85, DC 6100. Accordingly, the Board finds that a 10-percent rating is warranted from February 9, 2018, the date of the above VA audiogram, until November 15, 2019, when a 20-percent rating has been assigned. The November 2019 VA examination report reflects audiometric testing results showing puretone thresholds for the right ear of 45 dB at 1000 Hertz, 50 dB at 2000 Hertz, 60 dB at 3000 Hertz, and 90 dB at 4000 Hertz. The puretone threshold average was 61 dB. The speech discrimination score for the right ear was 64 percent. The left ear had puretone thresholds of 45 dB at 1000 Hertz, 55 dB at 2000 Hertz, 60 dB at 3000 Hertz, and 75 dB at 4000 Hertz. The puretone threshold average was 59 dB. The speech discrimination score was 76 percent. Applying Table VI to the above results, the right ear is assigned a Roman numeral designation of VI. The left ear is assigned a designation of IV. The point where designations VI and IV intersect in Table VII yields a rating of 20 percent. 38 C.F.R. § 4.85, DC 6100. The rating of 20 percent currently assigned effective November 15, 2019 for the Veteran’s bilateral hearing loss is based on the results of this examination. The October 2020 VA examination report reflects audiometric testing results showing puretone thresholds for the right ear of 45 dB at 1000 Hertz, 50 dB at 2000 Hertz, 55 dB at 3000 Hertz, and 75 dB at 4000 Hertz. The puretone threshold average was 56 dB. The speech discrimination score for the right ear was 88 percent. The left ear had puretone thresholds of 45 dB at 1000 Hertz, 50 dB at 2000 Hertz, 60 dB at 3000 Hertz, and 75 dB at 4000 Hertz. The puretone threshold average was 58 dB. The speech discrimination score was 88 percent. Applying Table VI to the above results, the right ear is assigned a Roman numeral designation of II. The left ear is assigned a designation of III. The point where designations III and II intersect in Table VII yields a rating of 0 percent. 38 C.F.R. § 4.85, DC 6100. In sum, for the reasons discussed above, the criteria for a rating higher than 0 percent prior to February 9, 2018 for the Veteran’s bilateral hearing loss have not been met. From February 9, 2018 through November 14, 2019, the criteria for a 10-percent rating have been met, and thus a 10-percent rating is granted for that period. Since November 15, 2019 (the effective date of the 20-percent rating), the criteria for a rating higher than 20 percent have not been met. Because the preponderance of the evidence weighs against higher ratings, the benefit-of-the-doubt rule does not apply. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. P.M. DILORENZO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Rutkin, 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.