Citation Nr: 21005880 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 12-35 301 DATE: February 2, 2021 ORDER An initial compensable disability rating for bilateral hearing loss prior to January 28, 2020 is denied. FINDING OF FACT The preponderance of the most probative evidence shows that, prior to January 28, 2020, the Veteran’s bilateral hearing loss was manifested by no worse than Level III hearing in the right ear and Level III hearing in the left ear. CONCLUSION OF LAW The criteria for an initial compensable rating for bilateral hearing loss prior to January 28, 2020 are not met. 38 U.S.C. §§ 1110, 1112, 5107(b); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.85-4.86, Diagnostic Code (DC) 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1969 to September 1975, February 1979 to May 1979, and October 1984 to April 1985. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). As background, a July 2017 Board decision denied entitlement to a compensable evaluation for bilateral hearing loss. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims. In a May 2019 Order, the Court granted a Joint Motion for Partial Remand (JMPR), vacating the Board’s decision and remanded the matter to the Board for actions consistent with the Joint Motion. In a November 2019 Board decision, the Board remanded the case in order to afford the Veteran an adequate VA examination as directed by the JMPR. Thereafter, in a February 2020 rating decision, the Veteran was awarded a 100 percent disability rating for bilateral hearing loss, effective January 28, 2020. On appeal, he contends that his bilateral hearing loss was of sufficient severity to warrant a compensable rating prior to January 28, 2020. In September 2020, the Board remanded the case to the agency of original jurisdiction (AOJ) in order to obtain a retrospective medical opinion on the severity of the Veteran’s bilateral hearing loss since October 2010. The AOJ completed the requested development and readjudicated the matter in a November 2020 Supplemental Statement of the Case. The case has now returned for appellate review and the development will be discussed below. An initial compensable disability rating for bilateral hearing loss prior to January 28, 2020 is denied. Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 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.   In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the veteran, as well as the entire history of the veteran's disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as "staging the ratings." See Fenderson v. West, 12 Vet. App. 119 (1999). From October 25, 2010, the Veteran’s bilateral hearing loss was rated as noncompensable, and for the period beginning January 28, 2020, he has been assigned a 100 percent rating for bilateral hearing loss. The assignment of a disability rating for hearing impairment is "derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometry evaluations are rendered." Lendenmann v. Principi, 3 Vet. App. 345, 349 (1993). Specifically, organic impairment of hearing acuity is rated by using audiological test results, obtained by a state-licensed audiologist, and the basic rating method involves using both the results of controlled speech discrimination tests (Maryland CNC) and the average decibel threshold level as measured by pure tone audiometry tests at the frequencies of 1000, 2000, 3000, and 4000 Hertz. 38 C.F.R. § 4.85(a). Tests are conducted without hearing aids. The rating schedule establishes eleven auditory acuity levels ranging from numeric level I through numeric level XI, obtained by applying the findings to Table VI or VIA. 38 C.F.R. §§ 4.85, 4.86. The numeric designations for both ears are then applied to Table VII to derive the percentage evaluation, under DC 6100. 38 C.F.R. § 4.86 applies to exceptional patterns of hearing impairment. Under § 4.86(a) when the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hz) is 55 decibels (dB) or more, 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. Each ear will be evaluated separately. In Martinak v. Nicholson, 21 Vet. App. 447 (2007), the 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 bears the burden of demonstrating any prejudice caused by a deficiency in the examination. Id. *** The Veteran has undergone multiple audiological evaluations for his service-connected bilateral hearing loss during the appeal period. The Veteran contents that some evidence was overlooked to include an April 2013 hearing evaluation. See, e.g., 07/26/2013 VA 21-4138. However, not all the evaluations of record meet the criteria under 38 C.F.R. § 4.85(a). Specifically, the Board finds that the audiological results from an October 2010 private audiological examination, and from January 2011, April 2013, and July 2016 VA audiological examinations are not valid. The October 2010 private audiological examination report indicates that speech discrimination scores were obtained using the NU6-3A (MLV) word list, and the January 2011, April 2013, and July 2016 VA audiological examination reports reveal that the CIDW-22 word list was used. See 11/23/2010 Medical Treatment Record – Non-Government Facility at 28; see also 03/03/2020 VA Examination. As the Maryland CNC test was not used to obtain speech discrimination scores as required under 38 C.F.R. § 4.85(a), the aforementioned audiological examination results are not valid for rating purposes. Notwithstanding the invalid evaluations above, the probative evidence of record consists of VA audiological examinations conducted in April 2011, September 2016, and January 2020. Additionally, on remand the AOJ procured retrospective medical opinions from a VA audiologist regarding the severity of the Veteran’s bilateral hearing loss since October 2010. See 10/14/2020 C&P Exam and 11/09/2020 C&P Exam.   On VA audiological examination dated April 2011, puretone threshold testing revealed the following: Right Ear HERTZ 1000 2000 3000 4000 Average 15 55 75 85 57.5 Left Ear HERTZ 1000 2000 3000 4000 Average 20 35 60 65 45 The speech recognition scores using the Maryland CNC test were 84 percent in the right ear and 88 percent in the left ear. See 04/01/2011 VA Examination. Applying Table VI, a numeric designation of Level III is warranted for the right ear and a numeric designation of Level II is warranted for the left ear. 38 C.F.R. § 4.85, Table VI. Applying Table VII, DC 6100, this equates to a 0 percent disability rating. Moreover, the April 2011 results do not reflect an exceptional pattern of hearing loss under 38 C.F.R. § 4.86. The Veteran underwent a VA audiological examination in September 2016, and results were as follows: Right Ear HERTZ 1000 2000 3000 4000 Average 25 65 85 95 67.5 Left Ear HERTZ 1000 2000 3000 4000 Average 20 65 75 85 61.25 The speech recognition scores using the Maryland CNC test were 84 percent in the right ear and 84 percent in the left ear. See 10/07/2016 VA Examination. Applying the results of the September 2016 examination to Table VI yields a finding of Level III hearing loss in each ear. Where hearing loss is at Level III in each ear, a 0 percent rating is assigned under Table VII. An exceptional pattern of hearing loss under 38 C.F.R. § 4.86 was not shown. The Board observes that while the September 2016 examination report informed the examiner that a performance intensity function must be obtained when speech discrimination is 92 percent or less, the examiner failed to do so. To the extent that the Veteran is entitled to an adequate VA examination, he was afforded such in January 2020, pursuant to the May 2019 JMPR and November 2019 Board remand. Finally, pursuant to the September 2020 Board remand, a VA audiologist provided a retrospective opinion as to the severity of the Veteran’s bilateral hearing loss since October 2010. See BVA Decision at 6. In October 2020 and November 2020 addendum opinions, the VA examiner summarized the audiometric testing results of record, and opined that the evidence shows progressively worsening hearing loss ranging from normal to profound hearing loss and excellent to poor word discrimination since. 10/14/2020 C&P Exam; 11/09/2020 C&P Exam. These addendums opinions from an audiologist substantially comply withe Board’s September 2020 remand instruction. While the Board acknowledges the October 2020 and November 2020 retrospective VA medical opinions, neither are adequate for rating purposes. However, this did not appear to be the intent as the examination was to look at audiological testing since October 2010 and look at them for consistency. In this regard, the retrospective opinions summarize the audiological findings of record, to include VA examination reports from January 2011, April 2011, April 2013, July 2016, the October 2010 private audiological examination report, and private ENT treatment records from 1988 to 2010. While the retrospective opinions document the speech discrimination scores and presentation levels for the aforementioned records, they lack complete results of controlled speech discrimination tests (Maryland CNC) and the average decibel threshold level as measured by pure tone audiometry tests. As such, the October 2020 and November 2020 retrospective opinions, to include the reported audiological testing results, are not adequate for rating purposes, but substantially comply with the remand directives. As such, the Board assigns the two opinions a low probative weight, but finds them to have some probative weight as to the pattern of the Veteran’s bilateral hearing loss over approximately a 10-year period. See Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (finding that medical reports must be read as a whole and in the context of the evidence of record). In sum, the probative evidence dated prior to January 28, 2020, does not reflect hearing impairment of such severity as to warrant a compensable rating. For the period on appeal, the evidence reveals that the Veteran’s bilateral hearing loss manifested by, at worst, Level III hearing loss in the right and left ears. Such findings do not support assignment of a compensable rating. The Board acknowledges the Veteran's contentions that he is entitled to a compensable disability rating for the period prior to January 28, 2020. See 03/13/2020 VA 21-4138 Statement in Support of Claim. However, even though laypersons are sometimes competent to provide opinions regarding etiology and diagnosis, see Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007), here, the specific audiological results shown on examination in April 2011 and September 2016 are more probative evidence as to the severity of the Veteran's hearing loss disability for VA purposes than the Veteran's general lay assertions. In this regard, the testing was performed by competent medical professionals and the results complied with the regulatory requirements of 38 C.F.R. § 4.85. As such, the Veteran’s lay statements regarding the severity of his bilateral hearing loss are outweighed by competent medical evidence of record. To the extent that the Veteran is having difficulty hearing and/or understanding speech, such is consider by the rating criteria. See Doucette v. Shulkin, 28 Vet. App. 366, 369 (2017) (holding that "the rating criteria for hearing loss contemplate the functional effects of difficulty hearing and understanding speech"). Accordingly, the preponderance of the most probative evidence is against the claim of entitlement to an initial compensable rating for bilateral hearing loss, to include staged rating as distinct time periods of different levels of disability have not been shown by the regulatory compliant examination reports discussed above. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). In reaching the conclusion above, the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. § 4.3. Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Tremont 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.