Citation Nr: 21008235 Decision Date: 02/12/21 Archive Date: 02/12/21 DOCKET NO. 18-05 000 DATE: February 12, 2021 ORDER An evaluation of 20 percent, but not in excess thereof, for bilateral hearing loss from November 14, 2016 to October 19, 2020 is granted. An evaluation in excess of 20 percent for bilateral hearing loss from October 19, 2020 is denied. FINDINGS OF FACT 1. From November 14, 2016 to October 19, 2020, the Veteran exhibited Level VI hearing loss in the right ear and Level IV hearing loss in the left ear. 2. From October 19, 2020, the Veteran exhibits Level VI hearing loss in the right ear and Level IV hearing loss in the left ear. CONCLUSIONS OF LAW 1. The criteria for an evaluation of 20 percent, but not in excess thereof, for bilateral hearing loss from November 14, 2016 to October 19, 2020 are met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100 (2019). 2. The criteria for an evaluation in excess of 20 percent for bilateral hearing loss from October 19, 2020 are not met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1965 to April 1968. This appeal is before the Board of Veterans’ Appeals (Board) from a March 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. In November 2019, the Board remanded the Veteran’s claim for a compensable rating for hearing loss for the period from November 14, 2016, with instruction to obtain current medical records and provide him with a current VA examination. The appropriate records were obtained, and he underwent a VA examination in October 2020. The Board also remanded the issues of entitlement to service connection for epilepsy and erectile dysfunction, which were granted in full in a December 2020 rating decision and are therefore no longer before the Board. The Board is therefore satisfied that the instructions in its November 2019 remand have been satisfactorily complied with. See Stegall v. West, 11 Vet. App. 268 (1998). 1. Entitlement to a compensable evaluation for bilateral hearing loss from November 14, 2016 to October 19, 2020 2. Entitlement to an evaluation in excess of 20 percent for bilateral hearing loss from October 19, 2020 The Veteran claims increased ratings for his bilateral hearing loss. Disability evaluations are determined by application of the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. An evaluation of the level of disability present must also include consideration of the functional impairment of the Veteran’s ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. “Staged” ratings are appropriate for any rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App 119 (1999). When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran’s entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). In evaluating service-connected hearing loss, disability ratings are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are performed. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). 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 pure tone audiometry test. 38 C.F.R. § 4.85. Evaluations of bilateral hearing loss range from noncompensable to 100 percent based on an organic impairment of hearing acuity, as measured by controlled speech discrimination tests in conjunction with the average hearing threshold, as measured by pure tone audiometric tests in the frequencies of 1000, 2000, 3000 and 4000 cycles per second. The rating schedule establishes 11 auditory acuity Levels designated from Level I for essentially normal hearing acuity through Level XI for profound deafness. VA audiological evaluations are conducted using a controlled speech discrimination test together with the results of pure tone audiometry tests. The vertical line in Table VI (printed in 38 C.F.R. § 4.85) represents nine categories of the percentage of discrimination based on a controlled speech discrimination test. The horizontal columns in Table VI represent 9 categories of decibel loss based on the pure tone audiometry test. The numeric designation of impaired hearing (Levels I through XI) is determined for each ear by intersecting the vertical row appropriate for the percentage of discrimination and the horizontal column appropriate to the pure tone decibel loss. The percentage evaluation is found from Table VII in 38 C.F.R. § 4.85 by intersecting the vertical column appropriate for the numeric designation for the ear having the better hearing acuity and the horizontal row appropriate for the numeric designation for the level for the ear having the poorer hearing acuity. For example, if the better ear had a numeric designation of Level V and the poorer ear had a numeric designation of Level VII the percentage evaluation is 30 percent. See 38 C.F.R. § 4.85. Regulations also provide that in cases of exceptional hearing loss, i.e., when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000 and 4000 hertz) is 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. Each ear will be evaluated separately. 38 C.F.R. § 4.86(a). The provisions of 38 C.F.R. § 4.86(b) further provide that when the pure tone threshold is 30 decibels or less at 1000 hertz and 70 decibels or more at 2000, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or VIa, whichever results in the higher numeral. That numeral will then be evaluated to the next higher Roman numeral. In an affidavit dated November 14, 2016, the Veteran reported that his hearing loss had worsened. In a March 2017 brief, his representative requested that a new VA examination be scheduled. In a September 2018 submission, his representative noted that he had reported worsening hearing loss and requested that a VA examination be scheduled. In a January 2019 submission, the representative again requested that a VA examination be scheduled. VA treatment records reflect that in June 2019 the Veteran underwent audiological evaluation. Thresholds and speech discrimination scores were not included in the record. He was diagnosed with bilateral mild to profound sensorineural hearing loss from 1000-8000 hertz. The report confusing stated that compared with prior testing in 2015, “the hearing loss has remained essentially unchanged. changed as expected.” The Veteran underwent a VA examination on October 19, 2020. He reported that in groups he cannot hear everything that is going on. Pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 50 60 80 95 71.25 LEFT 50 55 70 85 65 Speech audiometry revealed speech recognition ability of 68 percent in the right ear and 76 percent in the left ear. He was diagnosed with bilateral sensorineural hearing loss. Based on the results of the VA examination, a December 2020 rating decision awarded the Veteran a 20 percent evaluation effective October 19, 2020, the date of the examination. In a January 2021 statement, the Veteran’s representative agreed that the October 2020 VA examination warranted a 20 percent rating but argued that it should be applied retroactively to the date when he first reported worsening hearing loss. The Board finds that the evidence establishes worsening of the Veteran’s hearing loss on November 14, 2016. His representative is correct that this is the date where worsening was first established; indeed, that is why the Board remanded for the period beginning that date. In an affidavit dated November 14, 2016 the Veteran stated that his hearing loss had worsened, and his representative asked for a new examination three times over the next several years. It is wholly unjust to assume the Veteran’s hearing loss worsened the day of an examination when he and his representative have been requesting an examination that VA took years to provide. As such, the Board finds that a 20 percent rating is warranted for the entirety of the appeal period. The Board further finds that an evaluation in excess of 20 percent is not warranted for the Veteran’s hearing loss for the entirety of the appeal period. The audiological testing performed at his October 2020 VA examination establishes Level VI hearing loss in the right ear and Level IV hearing loss in the left ear. Such a combination warrants a 20 percent rating. There is no evidence in the record to contradict these findings. Furthermore, the testing does not establish that the Veteran exhibits exceptional hearing loss under 38 C.F.R. § 4.86. For these reasons, the Board finds that an evaluation in excess of 20 percent is not warranted for the Veteran’s hearing loss. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Gallagher, 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.