Citation Nr: 21006704 Decision Date: 02/05/21 Archive Date: 02/05/21 DOCKET NO. 17-29 082 DATE: February 5, 2021 ORDER An increased rating of 100 percent for bilateral hearing loss and associated special monthly compensation (SMC) for loss of use based on deafness in both ears, effective August 28, 2020, is granted. An increased rating in excess of 30 percent for bilateral hearing loss, to include SMC based on deafness in both ears, prior to August 28, 2020, is denied. FINDINGS OF FACT 1. Prior to August 28, 2020, the Veteran had no more than Level VI hearing impairment bilaterally, including with exceptional hearing patterns. 2. The Veteran’s Level XI hearing impairment bilaterally and resulting deafness in both ears has been factually ascertainable since August 28, 2020. CONCLUSIONS OF LAW 1. The criteria for a 100 percent rating for bilateral hearing loss and associated special monthly compensation for loss of use based on deafness in both ears, effective August 28, 2020, are met. 38 U.S.C. §§ 1114(k), 1155, 5107; 38 C.F.R. §§ 3.350, 3.400, 4.3, 4.85. 2. The criteria for an increased rating in excess of 30 percent for bilateral hearing loss prior to August 28, 2020, to include a 100 percent rating and special monthly compensation for loss of use based on deafness in both ears, are not met. 38 U.S.C. §§ 1114(k), 1155, 5107; 38 C.F.R. §§ 3.350, 3.400, 4.3, 4.85. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1967 to October 1970 and October 1972 to December 1976. He is a combat Veteran of the Vietnam War. This matter came to the Board of Veterans’ Appeals (Board) on appeal from a November 2013 rating decision. In July 2019 and October 2020, the Board remanded the issue of an increased rating in excess of 30 percent for bilateral hearing loss for additional development. As directed, the audiometric testing and VA treatment records were obtained, and a new VA examination was provided in 2020 to determine the current severity based on reports of a worsening condition. A December 2020 Decision Review Officer (DRO) decision granted a 100 percent rating for hearing loss, which is a full grant, along with special monthly compensation based on loss of use of deafness in both ears, effective December 2, 2020. Therefore, only the rating prior to December 2, 2020, remains on appeal. On January 5, 2021, and January 11, 2021, the Veteran’s attorney submitted two VA Forms 20-0996 Request for Higher Level Review under VA’s modernized appeals system for the effective date for the 100 percent rating for hearing loss and the award of special monthly compensation (SMC) based on deafness in the December 2020 DRO decision. However, the agency of original jurisdiction (AOJ) advised the Veteran and his attorney that these requests were premature and invalid because the issues were already pending on appeal. On January 13, 2021, the Veteran’s attorney submitted a VA Form 9, or substantive appeal under the Legacy system, also identifying the December 2020 decision and the same issues. Although not explained in detail in the AOJ letters, the request for earlier effective dates for the awards of higher ratings (schedular rating and SMC) for a portion of the period on appeal for the underlying increased rating claim is essential a request for an increase for the earlier portion that remains on appeal. Entitlement to SMC should be considered as part of a claim for increase when reasonably raised by the record. See Akles v. Derwinski, 1 Vet. App. 118 (1991). Therefore, the Veteran’s appeal as characterized above remains before the Board under the Legacy system. 1. and 2. Increased rating in excess of 30 percent for bilateral hearing loss prior to December 2, 2020, to include a 100 percent rating and special monthly compensation for loss of use based on deafness in both ears VA received the Veteran’s claim for an increase for his bilateral hearing loss in April 2012, asserting that it had worsened. This disability has been rated 30 percent disabling effective since February 4, 2005, with a separate 10 percent for tinnitus. VA’s percentage ratings are based on the average impairment of earning capacity as a result of service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings may be awarded if there are decreases or increases in symptomatology that meet the criteria for a different rating for a distinct period. Hart v. Mansfield, 21 Vet. App. 505 (2007). This decision focuses on the evidence pertinent to the rating criteria and disability severity during the relevant period, but the Board has considered the entire record to have a full picture of the disability. See 38 C.F.R. §§ 4.1, 4.2, 4.41; Gonzales v. West, 218 F. 3d 1378 (Fed. Cir. 2000). Effective dates should not be assigned based solely on the date of diagnosis. Swain v. McDonald, 27 Vet. App. 219, 224 (2015). Instead, all relevant facts should be considered to determine the date the increase in disability first manifested. DeLisio v. Shinseki, 25 Vet. App. 45, 58 (2011); see also 38 C.F.R. § 3.400. The ratings for hearing loss are assigned through a mechanical application of the rating schedule to numeric designations that are assigned based on the results of audiometric evaluations. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Disability ratings for hearing loss are assigned based on the results of a controlled speech discrimination (Maryland CNC) test combined with the results of pure tone audiometry tests conducted by a state-licensed audiologist without the use of hearing aids. A Roman numeral designation of I through XI is assigned for the level of hearing impairment in each ear. See 38 C.F.R. §§ 4.85, 4.86. First, a Roman numeral designation of I through XI is assigned for the level of hearing impairment in each ear. Table VI is used to determine a Roman numeral designation based on a combination of the speech discrimination percentage and the average pure tone threshold (the sum of the pure tone thresholds at 1000, 2000, 3000, and 4000 Hertz, divided by four). After a Roman numeral designation has been assigned for each ear, Table VII is used to determine the compensation rate by combining such designations for hearing impairment in both ears. 38 C.F.R. § 4.85. The Roman numeral designation for hearing impairment may be determined based only on the pure tone threshold average using Table VIA if the examiner certifies that use of the speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc. Table VIA may also be used where there is an exceptional pattern of hearing impairment, defined as where the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more, or where the pure tone threshold at 1000 Hertz is 30 decibels or less and the pure tone threshold at 2000 Hertz is 70 decibels or more. Where such an exceptional pattern is shown, a Roman numeral designation for hearing impairment may be ascertained using either Table VI or Table VIA, whichever results in the higher numeral. 38 C.F.R. §§ 4.85 (c), 4.86. The Veteran’s basic eligibility for SMC based on deafness is dependent upon his 100 percent rating for hearing loss. Entitlement to SMC based on deafness of both ears, having absence of air and bone conduction, will be established where examination in a Department of Veterans Affairs (VA) authorized audiology clinic under current testing criteria shows bilateral hearing loss is equal to or greater than the minimum bilateral hearing loss required for a maximum rating evaluation (100 percent) under the rating schedule. 38 U.S.C. § 1114(k); 38 C.F.R. § 3.350(a)(5). In this case, within the one year prior to the Veteran’s April 2012 increased rating claim, a July 2011 audiogram in VA treatment records reflects right ear pure tones of 20 decibels at 1000 Hertz, 75 decibels at 2000 Hertz, 80 decibels at 3000 Hertz, and 85 decibels at 4000 Hertz, for an average of 65. Left ear pure tones were 25 decibels at 1000 Hertz, 75 decibels at 2000 Hertz, 80 decibels at 3000 Hertz, and 80 decibels at 4000 Hertz, for an average of 65. Word recognition scores were provided of 80 percent in the right ear (AD) and 68 percent in the left ear (AS), although the type of test conducted was not specified. The provider stated that these results were not adequate for rating purposes, but the reason for inadequacy is unclear. The pure tone thresholds are similar to subsequent test results in 2013. The Board will assume solely for the purposes of this decision that the Maryland CNC test was used in 2011. Applying Table VI, the right ear pure tone average of 65 combined with the 80 percent speech score yields a Level IV designation. The left ear pure tone average of 65 combined with the 68 percent speech score yields a Level V designation. Under Table VII, combining Level IV for the better ear with Level V for the worse ear results in a 10 percent rating. As this does not allow for a higher rating, there is no need to seek clarification as to the word or speech test. The July 2011 results also demonstrate an exceptional hearing pattern in both ears, with less than 30 decibels at the 1000 Hertz level and more than 70 decibels at the 2000 Hertz level, which allows for analysis based on the pure tones only. Applying Table VIa, the average pure tones bilaterally of 65 yield a Level V designation. Under Table VII, combining Level V with Level V results in a 20 percent rating. During an August 2013 VA examination, testing showed right ear pure tones of 15 decibels at 1000 Hertz, 50 decibels at 2000 Hertz, 90 decibels at 3000 Hertz, and 95 decibels at 4000 Hertz, for an average of 63. Speech discrimination was 70 percent. Left ear pure tones were 10 decibels at 1000 Hertz, 75 decibels at 2000 Hertz, 80 decibels at 3000 Hertz, and 75 decibels at 4000 Hertz, for an average of 60. Speech discrimination was 62 percent. Under Table VI, these results yield a designation of Level V in the right ear and Level VI in the left ear. Applying Table VII, combining Level V for the better ear with Level VI for the worse ear results in a 20 percent rating. As the Veteran’s left ear had pure tones of less than 30 decibels at the 1000 Hertz level and more than 70 decibels at the 2000 Hertz level, Table VIa may be applied to his exceptional pattern of impairment in that ear. Under Table VIa, the pure tone average of 60 yields a Level IV designation. Applying Table VII, combining Level IV for the better ear with Level V for the worse ear results in a 10 percent rating. A February 2015 audiogram in VA treatment records reflects right ear pure tones of 25 decibels at 1000 Hertz, 65 decibels at 2000 Hertz, 85 decibels at 3000 Hertz, and 85 decibels at 4000 Hertz, for an average of 65. Left ear pure tones were 25 decibels at 1000 Hertz, 75 decibels at 2000 Hertz, 75 decibels at 3000 Hertz, and 80 decibels at 4000 Hertz, for an average of 65. Word recognition scores were provided of 60 percent in the right ear and 64 percent in the left ear, although the type of test conducted was not specified. The provider summarized that the Veteran’s Patient’s hearing has not changed significantly since his last evaluation for treatment in 2011, except for slight decline in word recognition in the right ear. The Board will assume solely for the purposes of this decision that the Maryland CNC test was used for the 2015 test. Applying Table VI, the right ear pure tone average of 65 combined with the 60 percent speech score yields a Level VI designation. The left ear pure tone average of 65 combined with the 64 percent speech score yields a Level VI designation. Under Table VII, combining Level VI with Level VI results in a 30 percent rating. As this does not allow for a higher rating, there is no need to seek clarification as to the word or speech test. The February 2015 results also demonstrate an exceptional hearing pattern in the left ear, with less than 30 decibels at the 1000 Hertz level and more than 70 decibels at the 2000 Hertz level, which allows for analysis based on the pure tones only. Applying Table VIa, the average pure tones for the left ear of 65 yields a Level V designation. Under Table VII to this alternative result, combining Level V for the better ear with Level VI for the worse ear results in a 20 percent rating. On August 28, 2020, a VA treatment record reflects that the Veteran requested a hearing test because he was having problems hearing even with his hearing aids. During the December 2, 2020, VA examination, testing showed right ear pure tones of 35 decibels at 1000 Hertz, 60 decibels at 2000 Hertz, 95 decibels at 3000 Hertz, and 95 decibels at 4000 Hertz, for an average of 71. Speech discrimination was 26 percent. Left ear pure tones were 40 decibels at 1000 Hertz, 85 decibels at 2000 Hertz, 95 decibels at 3000 Hertz, and 95 decibels at 4000 Hertz, for an average of 79. Speech discrimination was 28 percent. Under Table VI, these results yield a designation of Level XI in the right ear and Level XI in the left ear. Applying Table VII, combining Level XI with Level XI results in a 100 percent rating. Resolving reasonable doubt in the Veteran’s favor, the Veteran’s report of having increased problems for treatment on August 28, 2020, shows a factually ascertainable increase to the level of severity shown by the December 2, 2020 objective test results. Therefore, a 100 percent rating is warranted for hearing loss as of August 28, 2020. Additionally, he had deafness in both ears to warrant SMC. See 38 C.F.R. § 3.400; Swain , 27 Vet. App. at 224; DeLisio, 25 Vet. App. at 58. In a January 2021 VA Form 9, the Veteran’s attorney argued that the December 2, 2020 VA examination; December 12, 2012, and February 27, 2017 private evaluations for mental conditions; and July 25, 2014, and January 27, 2017 statements by the Veteran regarding his employability are relevant to this claim. In this regard, a 100 percent rating based on unemployability due to service-connected disabilities (or a TDIU) was already granted based on the Veteran’s mental health disability for the entire period since the 2012 hearing loss claim, and that issue is not before the Board. The 2012 and 2017 private evaluations and opinions about employability focus on the Veteran’s mental health impairment, and they do not give information as to the nature or severity of his hearing loss. There are no statements from the Veteran with the identified dates in 2014 or 2017. Nevertheless, the Veteran has generally described functional loss of difficulty hearing, communicating, and understanding speech or conversations due to his hearing loss, which affected his ability to work and resulted in frustrations and anxiety at times, as noted in the treatment records and VA examinations. These types of problems are contemplated by the schedular rating for hearing loss set forth in 38 C.F.R. § 4.85, along with his separate rating for his service-connected mental health condition. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). Prior to August 28, 2020, hearing tests did not support higher than the longstanding 30 percent rating, and there was no specific date to suggest an increase in severity. In summary, reasonable doubt has been resolved in the Veteran’s favor to award a higher rating and SMC for a portion of the appeal period. The appeal is granted to this extent. However, the manifestations of the service-connected disability were otherwise relatively consistent throughout the staged periods on appeal, and an even higher rating is not warranted. Any increases in severity did not more nearly approximate the criteria for the next higher rating, and there is no reasonable doubt to be resolved in the Veteran’s favor. The appeal is otherwise denied. Bethany L. Buck Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Wheatley 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.