Citation Nr: 21007395 Decision Date: 02/09/21 Archive Date: 02/09/21 DOCKET NO. 16-62 799 DATE: February 9, 2021 ORDER An initial compensable evaluation for bilateral hearing loss prior to July 22, 2019, is denied. A disability rating of 10 percent, but no higher, for service-connected bilateral hearing loss as of July 22, 2019, is granted. A disability rating in excess of 10 percent for service-connected bilateral hearing loss as of October 14, 2020, is denied. FINDINGS OF FACT 1. The competent and probative evidence shows hearing loss, at worst, at Level III in the right ear and Level VI in the left ear, prior to July 22, 2019 2. The competent and probative evidence is at least in equipoise as to whether hearing loss as of July 22, 2019, is at Level III in the right ear and Level IV in the left ear. CONCLUSIONS OF LAW 1. The criteria for a compensable disability rating for bilateral hearing loss prior to July 22, 2019, are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.85, 4.86, Diagnostic Code (DC) 6100. 2. The criteria for a disability rating of 10 percent, but no higher, for bilateral hearing loss, as of July 22, 2019, are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.85, 4.86, DC 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1952 to August 1957. This case is before the Board of Veterans’ Appeals (Board) on appeal from a December 2015 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO). In February 2020, the Veteran testified at a Board hearing. The transcript of the hearing has been associated with the record. The Board remanded this case for further development in March 2020. As the requested development has been completed, no further action to ensure compliance with the remand directives is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veteran contends that his disability evaluation for hearing loss should be higher as he believes the November 2015 hearing examination was not a true indicator of his type of hearing loss, and he believes his hearing has worsened over the years. See 02/07/2020, Hearing Transcript. Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability is resolved in favor of the Veteran. 38 C.F.R. § 4.3. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). The effective date of an award of increased compensation shall be the earliest date that is factually ascertainable that an increase in disability had occurred if an application is received within one year from that date. 38 U.S.C. § 5110(b)(3); 38 C.F.R. § 3.400(o)(2). Effective dates “should not be assigned mechanically based on the date of diagnosis.” Swain v. McDonald, 27 Vet. App. 219, 224 (2015). Instead, “all the facts should be examined” to determine the date the increase in disability first manifested. DeLisio v. Shinseki, 25 Vet. App. 45, 58 (2011). Where a claimant appeals the denial of a claim for an increased disability rating for a disability for which service connection was in effect before he filed the claim for increase, the present level of disability is the primary concern, and past medical reports should not be given precedence over current medical findings. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994). Where VA’s adjudication of the claim for increase is lengthy and factual findings show distinct time periods where the service-connected disability exhibits symptoms which would warrant different ratings, different or “staged” ratings may be assigned for such different periods of time. Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007). Impairment of auditory acuity (hearing loss) is evaluated pursuant to the provisions set forth at 38 C.F.R. § 4.85. Under that regulation, an examination for hearing impairment must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a pure tone audiometry test. Examinations are to be conducted without the use of hearing aids. 38 C.F.R. § 4.85(a). To evaluate the degree of disability from defective hearing, the Rating Schedule establishes 11 auditory acuity levels from Level I for essentially normal acuity through Level XI for profound deafness. These are assigned based on a combination of the percent of speech discrimination and the pure tone threshold average, as contained in a series of tables within the regulations. 38 C.F.R. § 4.85(b). The “pure tone threshold average” is the sum of the pure tone thresholds at 1000, 2000, 3000, and 4000 Hertz, divided by four. This average is used in all cases to determine the Roman numeral designation for hearing impairment from Table VI or VIa. 38 C.F.R. § 4.85(d). Table VIa, “Numeric Designation of Hearing Impairment Based Only on Pure tone Threshold Average,” is used to determine a Roman numeral designation (I through XI) for hearing impairment based only on the pure tone threshold average. Table VIa will be used when the examiner certifies that the use of speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc., or when indicated under the provisions of section 4.86. 38 C.F.R. § 4.85(c). Table VII, “Percentage Evaluations for Hearing Impairment,” is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment of each ear. The horizontal rows represent the ear having the better hearing and the vertical columns the ear having the poorer hearing. The percentage evaluation is located at the point where the row and column intersect. 38 C.F.R. § 4.85(e). The regulatory provisions also provide two additional circumstances under which alternative tables can be employed. One is where the pure tone thresholds in any four of the five frequencies of 500, 1000, 2000, 3000, and 4000 Hertz are 55 decibels or greater. The second is where pure tone thresholds are 30 decibels or less at frequencies of 1000 Hertz and below and are 70 decibels or more at 2000 Hertz. See 38 C.F.R. § 4.86. The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C. § 5107(b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The relevant evidence applied to the above laws and regulations demonstrates the criteria for an initial compensable evaluation for bilateral hearing loss prior to July 22, 2019, is not met, and the criteria for a rating of 10 percent, but no higher, is met as of July 22, 2019. The Veteran does not have an exceptional pattern of hearing in his ears bilaterally under the standard defined in 38 C.F.R. § 4.86. In November 2015, a VA audiometric examination was conducted. The speech discrimination test revealed a speech recognition ability of 88 percent in the right ear and 90 percent in the left ear. The pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 25 40 85 100 62.5 LEFT 25 45 80 105 63.75 The results of the November 2015 audiological examination combine for a hearing impairment designation of III in the right ear and III in the left ear under Table VI. Roman numerals III and III combine for a 0 percent rating in Table VII. See 38 C.F.R. § 4.85. On July 22, 2019, a private audiologist examined the Veteran. The results revealed word recognition ability of 80 percent in the right ear and 78 percent in the left ear under an unspecified word recognition test. The pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 20 40 75 90 56.25 LEFT 20 45 75 95 58.75 The results of the July 2019 examination are not valid for VA hearing impairment rating purposes as the regulations require the use of the Maryland CNC speech discrimination list. See 38 C.F.R. § 4.85. In October 2020, the Veteran received a VA audiological examination in conjunction with this claim for an increased rating. The speech discrimination test revealed a speech recognition ability of 86 percent in the right ear and 82 percent in the left ear. The recorded pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 25 45 75 90 58.75 LEFT 20 50 75 90 58.75 The results of the October 2020 audiological examination combine for a hearing impairment designation of III in the right ear and IV in the left ear under Table VI. Roman numerals III and IV combine for a 10 percent rating in Table VII. See 38 C.F.R. § 4.85. The results of the July 2019 and October 2020 examinations are consistent with one another. Although the July 2019 examination is not valid for VA rating purposes, the results of the July 2019 examination taken with the Veteran’s lay statements of worsening demonstrate an increase in severity is factually ascertainable by July 22, 2019. 38 U.S.C. § 5110(b)(3); 38 C.F.R. § 3.400(o)(2); see also DeLisio, 25 Vet. App. at 58. The Board expressly acknowledges its consideration of the lay evidence of record when adjudicating this claim, including the Veteran’s contention that the November 2015 audiological examination was not a true indicator of his type of hearing loss. The Veteran is competent to report difficulty with his hearing; however, disability ratings for hearing loss are derived from a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). The Veteran’s frustrations are noted, but the evidence does not demonstrate an exceptional pattern of hearing loss or symptoms not contemplated by the rating criteria. The rating criteria contemplate speech reception thresholds and the ability to hear spoken words on Maryland CNC testing. The functional impact that the Veteran describes is contemplated by the rating criteria. Doucette v. Shulkin, 28 Vet. App. 366 (2017). The Veteran’s main complaint is reduced hearing acuity and clarity, which is contemplated in the rating assigned. See Rossy v. Shulkin, 29 Vet. App. 142, 145 (2017). After reviewing all the evidence of record, resolving all reasonable doubts in favor of the Veteran, and applying the audiological test results to the regulatory criteria most favorable to the Veteran, the evidence warrants a 10 percent rating as of July 22, 2019, the date of the private audiometric examination, but the most probative evidence is against the claim of entitlement to a compensable rating before July 22, 2019. Although the private audiometric examination is not valid for VA rating purposes, it is very consistent with the October 2020 examination results. Thus, it is apparent that the Veteran’s hearing loss was most likely at the 10 percent level at the time of the Jun 2019 examination. Prior to that date, there is no evidence of hearing disability warranting a compensable rating. A 10 percent rating, but no (Continued on next page) higher, as of July 22, 2019, is granted. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991); 38 C.F.R. §§ 4.85-4.86. JAMES L. MARCH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Costa, 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.