Citation Nr: 21006746 Decision Date: 02/05/21 Archive Date: 02/05/21 DOCKET NO. 14-00 539 DATE: February 5, 2021 ORDER For the period on appeal prior to December 20, 2019, an increased compensable evaluation for the Veteran’s service-connected bilateral hearing loss is denied. For the period on appeal from December 20, 2019, an increased evaluation in excess of 10 percent, for the Veteran’s service-connected bilateral hearing loss is denied. FINDINGS OF FACT 1. For the period on appeal prior to December 20, 2019, the Veteran’s bilateral hearing loss is manifested by Level I hearing acuity based on puretone threshold average and speech discrimination. 2. For the period on appeal from December 20, 2019, the Veteran’s bilateral hearing loss is manifested by Level IV hearing acuity based on puretone threshold average and speech discrimination. CONCLUSION OF LAW 1. For the period on appeal prior to December 20, 2019, the criteria for the assignment of an increased compensable evaluation for the Veteran’s service-connected bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 3.385, 4.1, 4.2, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100. 2. For the period on appeal from December 20, 2019, the criteria for the assignment of an increased evaluation in excess of 10 percent for the Veteran’s service-connected bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 3.385, 4.1, 4.2, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served honorably in the U.S. Army from August 1968 to March 1970, including service in Vietnam. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2011 rating decision issued by a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). The Veteran’s Form 9 indicated that he requested a Board hearing; however, the Veteran did not appear for the Board hearing scheduled in April 2014, and no request for postponement was received. Accordingly, the Veteran’s appeal must be processed as though his request for a Board hearing has been withdrawn. See 38 C.F.R. § 20.704(d). In June 2015, the Board remanded this appeal for further development, including scheduling the Veteran for a VA examination to evaluate the severity of his bilateral hearing loss. To the extent that the directed VA examination report was procured in December 2019, the Board finds that substantial compliance with its remand directives pertaining to the Veteran’s bilateral hearing loss claim has been accomplished. See Stegall v. West, 11 Vet. App. 268, 271 (1998); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999). The Board notes that a January 2020 rating decision increased the Veteran’s disability rating from zero percent to 10 percent, effective December 20, 2019. However, because this award amounts to less than the maximum benefit available for the Veteran’s service-connected bilateral hearing loss, and because the Veteran has not indicated that he is satisfied with a 10 percent disability rating, the Veteran’s increased rating claim for his service-connected bilateral hearing loss remains on appeal. See AB v. Brown, 6 Vet. App. 35, 39-40 (1993). 1. For the period on appeal prior to December 20, 2019, an increased compensable evaluation for the Veteran’s service-connected bilateral hearing loss is denied. 2. For the period on appeal from December 20, 2019, an increased evaluation of 10 percent, but no greater, for the Veteran’s service-connected bilateral hearing loss is granted. In December 2011, the Veteran was awarded service connection for his bilateral hearing loss and assigned a noncompensable evaluation, effective June 29, 2011. Subsequently, in August 2012, the Veteran filed the instant claim for an increased evaluation contending that his bilateral hearing loss warrants an increased evaluation. As noted above, during the pendency of the appeal in January 2020, the Veteran was assigned an increased evaluation of 10 percent, effective December 20, 2019. An examination of hearing impairment for VA purposes must be conducted by a state-licensed audiologist, without the use of hearing aids, and must include a controlled speech discrimination test (Maryland CNC) and a puretone audiometry test. See 38 C.F.R. § 4.85(a). A disability rating for hearing loss is determined by a mechanical application of the VA’s Rating Schedule to the numeric designations assigned based on audiometric test results. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Evaluations of bilateral hearing loss range from zero percent (noncompensable) to 100 percent based on organic impairment of hearing acuity, as measured by a controlled speech discrimination test and the average hearing threshold, as measured by puretone audiometric tests at the frequencies of 1000, 2000, 3000 and 4000 Hertz. See 38 C.F.R. § 4.85, Table VI. The VA’s Rating Schedule establishes 11 auditory acuity levels designated from Level I, for essentially normal hearing acuity, through Level XI for profound deafness. See 38 C.F.R. § 4.85, Table VII. Under 38 C.F.R. § 4.85, Table VI (Numeric Designation of Hearing Impairment Based on Puretone Threshold Average and Speech Discrimination) is used to assign a Roman numeral designation (I through XI) for the veteran’s hearing impairment based upon a combination of the percentage of speech discrimination (horizontal rows) and the puretone threshold average (vertical columns). The Roman numeral designation is located at the point where the percentage of speech discrimination and puretone average intersect. See 38 C.F.R. § 4.85(b). The puretone threshold average is determined by the sum of the puretone thresholds at 1000, 2000, 3000 and 4000 Hertz, divided by 4; this average is used in all cases to determine the Roman numeral designation for hearing impairment. See 38 C.F.R. § 4.85(d). Alternatively, VA regulations provide that in cases of exceptional hearing loss, when the puretone thresholds at each of the four specified frequencies (1000, 2000, 3000 and 4000 Hertz) exceeds 55 decibels 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, and each ear will be evaluated separately. See 38 C.F.R. § 4.86(a). In addition, 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. See 38 C.F.R. § 4.86(b). That numeral will then be elevated to the next higher Roman numeral, and each ear will be evaluated separately. See id. The findings for each ear from either Table VI or Table VIA are then applied to Table VII (Percentage Evaluations for Hearing Impairment) to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment of each ear. See 38 C.F.R. § 4.85(e). Where the veteran’s impaired hearing is service-connected in only one ear, in order to determine the percentage evaluation from Table VII, the non-service-connected ear will be assigned a Roman Numeral designation for hearing impairment of Level I, subject to the provisions of 38 C.F.R. § 3.383. See 38 C.F.R. § 4.85(f). Compensation may be warranted for certain combinations of service-connected and nonservice-connected disabilities as if both disabilities were service-connected, provided the nonservice-connected disability is not the result of the veteran’s own willful misconduct, including hearing impairment in one ear compensable to a degree of 10 percent or more as a result of service-connected disability and hearing impairment as a result of nonservice-connected disability that meets the provisions of Section 3.385 in the other ear. See 38 C.F.R. § 3.383(a)(3). After careful review, and in light of applicable VA regulations, the Board finds that, for the period on appeal prior to December 20, 2019, an increased compensable evaluation for the Veteran’s service-connected bilateral hearing loss is not warranted. For the period on appeal from December 20, 2019, an increased evaluation in excess of 10 percent, for the Veteran’s service-connected bilateral hearing loss is not warranted. In December 2011, the Veteran underwent a VA audiological examination which culminated in a report reflecting hearing thresholds as follows: HERTZ 1000 2000 3000 4000 average RIGHT EAR 25 30 35 45 34.00 LEFT EAR 25 35 55 60 44.00 Speech recognition was recorded as 96 percent bilaterally. Applying the results of the December 2011 VA examination to Table VI results in a designation of Level I hearing loss bilaterally. In December 2019, the Veteran underwent a second VA audiological examination which culminated in a report reflecting hearing thresholds as follows: HERTZ 1000 2000 3000 4000 average RIGHT EAR 30 55 60 70 53.75 LEFT EAR 30 55 65 70 55.00 Speech recognition was recorded as 80 percent bilaterally. Applying the results of the December 2019 VA examination to Table VI results in a designation of Level IV hearing loss bilaterally. While VA outpatient treatment records reflect several audiograms, these records did not include speech recognition scores under the Maryland CNC. Nor do the findings result in exceptional patterns of hearing loss so that 38 C.F.R. § 4.86(a) could apply. As such, these records are not appropriate for rating purposes. Based upon the foregoing evidence, Level I hearing loss bilaterally corresponds to a 0 percent evaluation under Table VII of the Rating Schedule, and Level IV hearing loss bilaterally corresponds to a 10 percent evaluation under Table VII of the Rating Schedule. See 38 C.F.R. § 4.85, Diagnostic Code 6100. The Veteran has not specifically raised any other issues, nor have any other issues been reasonably raised by the evidence of record. See Doucette v. Shulkin, 28 Vet. App. 366, 370 (2017). Accordingly, in light of the foregoing and pursuant to Diagnostic Code 6100, the Board finds that, for the period on appeal prior to December 20, 2019, an increased compensable evaluation for the Veteran’s service-connected bilateral hearing loss is not warranted. Additionally, for the period on appeal from December 20, 2019, an increased evaluation in excess of 10 percent for the Veteran’s service-connected bilateral hearing loss is not warranted. As the preponderance of the evidence is against the claim, the appeal is denied. H. SEESEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board H. Marsdale 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.