Citation Nr: 21006556 Decision Date: 02/04/21 Archive Date: 02/04/21 DOCKET NO. 15-13 317 DATE: February 4, 2021 ORDER Entitlement to a 30 percent rating, but no higher, for bilateral hearing loss from January 10, 2013 to May 17, 2015 is granted subject to the laws and regulations governing the payment of monetary benefits. FINDING OF FACT From January 10, 2013 to May 17, 2015, the Veteran demonstrated Level VI acuity in the right ear and Level VII acuity in the left ear. CONCLUSION OF LAW The criteria for a 30 percent rating, but no higher, for bilateral hearing loss from January 10, 2013 to May 17, 2015 are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.3, 4.7, 4.85, Diagnostic Code (DC) 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1965 to February 1967. This case comes to the Department of Veterans Affairs (VA) Board of Veterans’ Appeals (Board) on appeal from an Agency of Original Jurisdiction (AOJ) rating decision dated in October 2014. A December 2018 Board decision regarding the claim for entitlement to a rating in excess of 20 percent for bilateral hearing loss from January 10, 2013 to May 17, 2015 was vacated by the United States Court of Appeals for Veterans Claims (CAVC) in February 2020. The issue has since returned to the Board for further adjudication. The Board remanded this case to the AOJ in June 2020 for additional development. The Board finds that the AOJ substantially complied with remand directives, and the claim is ready for adjudication. Stegall v. West, 11 Vet. App. (1998). 1. Entitlement to a rating in excess of 20 percent for bilateral hearing loss from January 10, 2013 to May 17, 2015 Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. Separate diagnostic codes identify the various disabilities. The percentage ratings are based on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. When rating the Veteran’s service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. (1991). The Veteran bears the burden of presenting and supporting his claim for benefits. 38 U.S.C. § 5107 (a). In its evaluation, the Board considers all information and lay and medical evidence of record. 38 U.S.C. § 5107 (b). In general, the degree of impairment resulting from a disability is a factual determination and the Board’s primary focus in such cases is upon the current severity of the disability. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994); Solomon v. Brown, 6 Vet. App. 396, 402 (1994). However, staged ratings are appropriate in any increased rating claim in which distinct time periods with different ratable symptoms can be identified. Fenderson v. West, 12 Vet. App. 119, 126-127 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). If the evidence for and against a claim is in equipoise, the claim will be granted. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt will be resolved in the claimant’s favor. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating. 38 C.F.R. §§ 4.3, 4.7. Otherwise, the lower rating will be assigned. Id. Hearing loss is evaluated under DC 6100. Assignment of a disability rating for hearing loss is derived by a mechanical application of the rating schedule to the specific numeric designations assigned after audiology testing is completed. Lendenmann v. Principi, 3 Vet. App. 345 (1992). Additionally, VA must analyze the functional effects caused by a hearing loss disability. See Martinak v. Nicholson, 21 Vet. App. 447 (2007). 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. The rating schedule establishes 11 auditory hearing acuity levels based upon average puretone thresholds and speech discrimination. See 38 C.F.R. § 4.85. “Puretone threshold average” as used in Tables VI and VIa is the sum of the puretone thresholds at 1000, 2000, 3000 and 4000 Hertz and divided by four. This average is used in all cases (including those of § 4.86) to determine a Roman numeral designation from Tables VI and VIa. 38 C.F.R. § 4.85(d). Table VI, “Numeric Designation of Hearing Impairment Based on Puretone Threshold Average and Speech Discrimination,” is used to determine a Roman numeral designation (I through XI) for hearing impairment based on a combination of the percent of speech discrimination (horizontal rows) and the puretone threshold average (vertical columns). The Roman numeral designation is located at the point where the row and column intersect. 38 C.F.R. § 4.85(b). Table VIa, “Numeric Designation of Hearing Impairment Based Only on Puretone Threshold Average,” is used to determine a Roman numeral designation (I through XI) for hearing impairment based only on puretone threshold average. Table VIa is used when the examiner certifies that the use of the speech discrimination test is not appropriate due to language difficulties, inconsistent speech discrimination scores, etc., or when indicated under the provisions of § 4.86. 38 C.F.R. § 4.85(c). Table VII, “Percentage Evaluations of Hearing Impairment,” is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment in each ear. The horizontal rows represent the ear having better hearing and the vertical columns represent the ear having the poorer hearing. The percentage evaluation is located at the point where the row and the column intersect. 38 C.F.R. § 4.85(e). 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). The Veteran underwent a VA examination in January 2013 for his hearing loss. The results were as follows: HERTZ (dB) 1000 2000 3000 4000 Average RIGHT 60 70 5 80 54 LEFT 70 80 80 80 78 The VA examiner determined that the Veteran’s speech discrimination score using the Maryland CNC word list was 76 percent in the right ear and 80 percent in his left ear. The examiner indicated that use of the speech discrimination scores was appropriate for rating purposes. The examiner indicated that the Veteran’s hearing loss impacted his ability to work because he had difficulty understanding women, even with hearing aids. A report from a private audiologist, dated in April 2015, reflects the following: HERTZ (dB) 1000 2000 3000 4000 RIGHT 90 95 110 110 LEFT 85 95 105 110 However, the April 2015 private audiogram does not include speech recognition scores using the Maryland CNC test. In May 2015, a VA examination revealed the following: HERTZ (dB) 1000 2000 3000 4000 Average RIGHT 60 75 80 75 73 LEFT 65 65 75 75 70 The Veteran had speech discrimination scores of 84 percent in both ears. The examiner provided an addendum in December 2015 explaining that the Veteran’s functional loss would include difficulty understanding speech in the presence of background noise. In November 2020, a VA examiner provided a supplemental opinion. The examiner reviewed records, and indicated that the results of the January 2013 VA examination of the right ear at 3000 Hz was a typographical error. Using knowledge of patterns of hearing loss, the result should have been 75 dB, not 5 dB. Based on the evidence above, the Board finds that a 30 percent rating, but no higher, for hearing loss from January 10, 2013 to May 17, 2015 is warranted. Regarding the Veteran’s January 2013 VA examination results, when taking into account the November 2020 opinion, the Board finds that the average hearing loss was 71.25 dB. Applying Table VI to the audiometric testing, the Veteran had Level IV hearing in the right ear. However, the Veteran had an exceptional hearing pattern in the right ear. Thus, applying Table VIa, he would have Level VI hearing in the right ear. Under 38 C.F.R. § 4.86(a), the higher numeral shall be used for exceptional hearing. Therefore, Level VI hearing will be applied for the right ear. Regarding the left ear, the Veteran had Level V hearing when applying Table VI and Level VII when applying Table VIa for exceptional hearing. Thus, Level VII hearing shall be applied for the left ear. With Level VI hearing in the right ear and Level VII hearing in the left, a 30 percent rating is warranted. See Tables VI, VIa, VII. However, a 40 percent rating is not warranted as the objective and adequate audiometric testing did not show acuity in the right ear above Level VI or in the left ear above Level VII. The Board affords the November 2020 opinion significant weight in its finding. The examiner relied on a review of the records, and skills, knowledge, experience, and training as a professional. The Board also notes that, even assuming the examiner’s estimate that the Veteran’s hearing loss was more than 10 percent worse, or 85 dB, the average level of hearing (73.75 dB) would still result in Level VI hearing on the right under Table VIa. Moreover, the estimate at 3000 Hz in the right ear is consistent with the May 2015 VA audiometric testing. Therefore, the Board finds that the examiner’s estimate is reasonable and adequate to determine which rating the Veteran’s hearing acuity more nearly approximated. In February 2020, the Veteran’s representative argued that Table VIa should be applied to the April 2015 private audiometric testing, and whatever the missing Maryland CNC test results, they would not have factored into the assigned rating. The Board disagrees. First, while the Veteran’s representative ignores the fact that, before even deciding which Table applies to the Veteran’s test results, the threshold question is whether the testing is adequate for rating purposes. 38 C.F.R. § 4.85(a) provides that “[a]n examination for hearing impairment for VA purposes…must include a controlled speech discrimination test (Maryland CNC)” (emphasis added). The speech discrimination test is a mandatory prerequisite for rating, not discretionary, even in cases with exceptional hearing. Second, the implication of the Maryland CNC test can be seen in Table VI. Second, in order to determine which numeral applies under 38 C.F.R. § 4.86(a) for exceptional hearing, the level of hearing acuity must first be determined under both Table VI and Table VIa, then the higher numeral will be applied. There is no provision for applying Table VIa without also considering Table VI for the Veteran’s exceptional hearing. The Board also notes that, according to the April 2015 testing, the Veteran’s average puretone threshold was 98-104 bilaterally. However, with a speech discrimination score of 92-100 percent, the Veteran would have as low as a Level IV acuity (resulting in a 10 percent rating under Table VII), and with a score of 0-34 percent, it would be as high as Level XI acuity (resulting in a 100 percent rating under Table VII). Given that there is no other VA examination that is adequate for rating purposes showing that the Veteran’s hearing approaches Level X hearing, which it would if using only Table VIa, the Board finds the April 2015 results anomalous, inconsistent, and unreliable for rating and gives them little weight. Finally, in January 2021, the Veteran’s representative suggested that remand was necessary for current audiometric testing. The Board disagrees. The Veteran has been assigned staged ratings for his hearing loss, and the present appeal applies to 2013. The clarification needed was regarding prior audiometric testing, and the November 2020 VA examiner provided an adequate opinion. Therefore, current testing is not required for the previous 2013-2015 time frame. The Board acknowledges the Veteran’s and his family’s statements that he has difficulty hearing women and in noisy environments, and watches the television loudly. However, even after considering the functional impact of this disability, the evidence shows that a higher rating is not warranted. The Board gives the VA examinations significant weight, as they address all the rating criteria. See also Doucette v. Shulkin, 28 Vet. App. 366, 371-72 (2017) (difficulty in distinguishing sounds in a crowded environment, locating the source of sounds, understanding conversational speech, hearing the television, and using the telephone each are a manifestation of difficulty hearing or understanding speech, which is contemplated by the schedular rating criteria for hearing loss). To the extent the claim for a rating in excess of the now-assigned 30 percent rating is denied, the preponderance of the evidence is against the claim, and the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 54-55. S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Smith, Associate 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.