Citation Nr: 21009652 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 16-31 637 DATE: February 23, 2021 ORDER Entitlement to an initial compensable rating for bilateral hearing loss prior to November 22, 2019, is denied. Entitlement to a 10 percent rating, but no higher, for bilateral hearing loss, from November 23, 2019, is granted. FINDINGS OF FACT 1. During the period on appeal prior to November 22, 2019, the Veteran’s bilateral hearing loss was no worse than Level II hearing in the right ear and Level III hearing in the left ear. 2. Resolving reasonable doubt in favor of the Veteran, during the period on appeal from November 23, 2019, the Veteran’s bilateral hearing loss disability was no worse than Level III hearing in the right ear and Level V hearing in the left ear. CONCLUSIONS OF LAW 1. Prior to November 22, 2019, the criteria for a compensable disability rating for bilateral hearing loss were not met. 38 U.S.C. § 1155 (2018); 38 C.F.R. §§ 4.85, Diagnostic Code (DC) 6100 (2019). 2. Beginning November 23, 2019, the criteria for a 10 percent rating for bilateral hearing loss have been met. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 4.7, 4.85, DC 6100 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from February 1983 to February 1985. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In connection with this appeal, the Veteran testified at a hearing before the undersigned Veterans Law Judge in May 2019. A transcript of that hearing has been associated with the claims file. This case was previously before the Board in May 2019, at which time it was remanded for additional development. The case has now been returned to the Board for further appellate action. Increased Rating—Bilateral Hearing Loss Disability The Veteran contends that his bilateral hearing loss disability warrants a higher rating because of his diminished hearing capacity. The Veteran underwent a VA examination in July 2013. He reported having trouble hearing conversations on the phone and hearing instructions and directions in work situations. Audiometric testing results at that time were as follows: Hertz 1000 2000 3000 4000 Average Right Ear 45 45 65 70 56 Left Ear 45 50 75 80 62 Speech recognition ability was measured at 94 percent in the right ear and 86 percent in the left ear. Applying those values to the rating criteria results in a numeric designation of Level I in the right ear and Level III in the left ear. 38 C.F.R. § 4.85, Table VI. Application of the levels of hearing impairment in each ear to Table VII produces a noncompensable (0 percent) rating. 38 C.F.R. § 4.85. The Veteran underwent another VA examination in May 2016. Audiometric testing results at that time were as follows: Hertz 1000 2000 3000 4000 Average Right Ear 40 45 65 75 56 Left Ear 45 45 85 80 64 Speech recognition ability was measured at 96 percent in the right ear and 94 percent in the left ear. Applying those values to the rating criteria results in a numeric designation of Level I in the right ear and Level II in the left ear. 38 C.F.R. § 4.85, Table VI. Application of the levels of hearing impairment in each ear to Table VII produces a noncompensable (0 percent) rating. 38 C.F.R. § 4.85. In support of his claim, the Veteran also submitted private audiometric testing records; however, those reports do not include controlled speech discrimination tests administered pursuant to the Maryland CNC testing criteria as required for VA rating evaluation purposes. 38 C.F.R. § 4.85(a). Instead, those reports provide scores which are based upon CID W-22 lists. An October 2020 VA addendum report explains that those results cannot be converted to be considered under the required criteria. Nevertheless, even using those speech discrimination percentages as provided, and applying the findings to the mechanical structure of the rating criteria, a noncompensable rating is still the result. Specifically, the June 2016 test demonstrated the following: Hertz 1000 2000 3000 4000 Average Right Ear 40 45 65 75 56.25 Left Ear 40 50 75 80 61.25 The testing scores based upon the CID W-22 lists showed speech recognition ability in the right ear at 84 percent and 76 percent in the left ear. Applying those values to the rating criteria results in a numeric designation of Level II in the right ear and Level IV in the left ear. 38 C.F.R. § 4.85, Table VI. Application of these levels of hearing impairment in each ear to Table VII produce a noncompensable (0 percent) rating. 38 C.F.R. § 4.85. The Veteran also underwent a November 2019 VA examination. At that time, the Veteran reported that he had to ask people to repeat themselves in the presence of background noise, even with hearing aids; and that he sometimes missed instructions at work, causing his bosses to get irritated when they had to repeat themselves. Audiometric testing results at that time were as follows: Hertz 1000 2000 3000 4000 Average Right Ear 50 50 70 75 61 Left Ear 50 55 80 75 65 Speech recognition ability was measured at 94 percent in the right ear and 84 percent in the left ear. Applying those values to the rating criteria results in a numeric designation of Level II in the right ear and Level III in the left ear. 38 C.F.R. § 4.85, Table VI. Application of the levels of hearing impairment in each ear to Table VII produces a noncompensable (0 percent) rating. 38 C.F.R. § 4.85. The above records do not support that at any time prior to November 22, 2019, the Veteran’s bilateral hearing loss disability warranted a compensable rating. The degree of severity of a hearing loss disability is determined as measured by controlled speech discrimination tests in conjunction with average hearing thresholds demonstrated by puretone audiometric testing at frequencies of 1000, 2000, 3000 and 4000 Hertz. “Puretone threshold average” is the sum of the puretone thresholds at 1000, 2000, 3000 and 4000 Hertz divided by four. This average is used in all cases (including those in §4.86) to determine the Roman numeral designation for hearing impairment from Table VI or VIA. 38 C.F.R. § 4.85, Diagnostic Code 6100. Accordingly, the Board finds that the preponderance of the evidence of record does not support a compensable rating for the Veteran’s disability prior to November 22, 2019. In September 2020, the Veteran underwent another VA examination, the results of which are as follows: Hertz 1000 2000 3000 4000 Average Right Ear 40 50 70 75 58.75 Left Ear 45 50 80 80 63.75 Speech recognition ability was measured at 84 percent in the right ear and 72 percent in the left ear. Applying those values to the rating criteria results in a numeric designation of Level III in the right ear and Level V in the left ear. 38 C.F.R. § 4.85, Table VI. Application of these levels of hearing impairment in each ear to Table VII result in a 10 percent rating. 38 C.F.R. § 4.85. An additional private medical record from September 2020 was also submitted for consideration. As with the June 2016 private record, this report does not reflect utilization of Maryland CNC testing criteria as required for VA rating evaluation purposes and the speech recognition scores cannot be converted. 38 C.F.R. § 4.85(a). However, utilizing the scores as provided, results in a noncompensable (0 percent) rating. Id. Those testing results are as follows: Hertz 1000 2000 3000 4000 Average Right Ear 40 45 70 70 56.25 Left Ear 45 50 80 85 65 The non-Maryland CNC speech recognition testing was measured at 92 percent in the right ear and 88 percent in the left ear. Applying those values to the rating criteria results in a numeric designation of Level I in the right ear and Level III in the left ear, resulting in a noncompensable (0 percent) rating pursuant to Table VII. 38 C.F.R. § 4.85, Table VI. Neither the Veteran nor the Board can speculate and arbitrarily pick a disability rating for a period on appeal assigning a speculative date for the occurrence of worsened severity; there must be a basis in fact for the assigned rating. 38 C.F.R. § 3.102. Generally, the effective date for an increase will be the date of receipt of the claim or date that entitlement arose, whichever is later. 38 C.F.R. § 3.400 (o)(1). Thus, in fixing an effective date for an award of increased compensation, VA must make two essential determinations. It must determine (1) when a claim for increased compensation was received, and (2) when a factually ascertainable increase in disability occurred. As the present claim stems from the Veteran’s appeal of the initial noncompensable rating, it must be determined when the worsened severity of the disability, warranting a 10 percent rating, took effect. As discussed above, up to and including the date of the November 22, 2019, VA examination, there is no evidence of record which supports a factual finding for a compensable rating for the Veteran’s bilateral hearing loss disability. However, the September 2020 VA examination report establishes that the Veteran’s disability warrants a 10 percent rating. Based upon the passage of time between the November 22, 2019, and September 2020 examination results, the Board finds that there is reasonable doubt as to the date of onset of the present severity warranting a 10 percent rating. The Board has no doubt that the Veteran’s hearing loss disability was declining during that period of time, as his symptoms indicate worsening based upon the progression of his puretone threshold results and speech recognition ability. Accordingly, giving the Veteran the benefit of the doubt, the Board applies the September 2020 VA examination results to the period on appeal from November 23, 2019, granting a 10 percent disability rating from that date forward for the Veteran’s bilateral hearing loss disability. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Kristin Haddock Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Sutherell, 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.