Citation Nr: 21010251 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 15-44 552 DATE: February 24, 2021 ORDER Entitlement to an initial compensable disability rating for bilateral hearing loss prior to August 13, 2019, is denied. Entitlement to a disability rating for bilateral hearing loss in excess of 30 percent from August 13, 2009, is denied. FINDINGS OF FACT 1. Prior to August 13, 2019, the Veteran's bilateral hearing loss was manifested by no more than Level I hearing acuity in the right ear and Level III hearing acuity in the left ear. 2. From August 13, 2019, the Veteran's bilateral hearing loss was manifested by no more than Level VI hearing acuity in the right ear and Level VI hearing acuity in the left ear. CONCLUSIONS OF LAW 1. The criteria for a compensable rating for bilateral hearing loss prior to August 13, 2019 have not been met. 38 U.S.C. §§ 1155, 5103, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100. 2. The criteria for a rating in excess of 30 percent for bilateral hearing loss from August 13, 2019 have not been met. 38 U.S.C. §§ 1155, 5103, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1969 to September 1971. This case comes before the Board of Veterans’ Appeals (Board) on appeal of an August 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). Increased Rating Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. In cases in which a claim for a higher initial evaluation stems from an initial grant of service connection for the disability at issue, multiple ("staged") ratings may be assigned for different periods of time during the pendency of the appeal. See generally Fenderson v. West, 12 Vet. App. 119 (1999). Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings. See Francisco v. Brown, 7 Vet. App. 55 (1994); 38 C.F.R. § 4.2. Staged ratings are, however, appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. 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. See 38 C.F.R. § 4.7. Bilateral Hearing Loss The Rating Schedule establishes 11 auditory hearing acuity levels based upon average pure tone thresholds and speech discrimination. See 38 C.F.R. § 4.85. Evaluations of bilateral defective hearing range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests together with the average hearing threshold level as measured by pure tone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 Hertz (cycles per second). The audiometric test results are then translated into a numeric designation ranging from Level I to Level XI, in order to evaluate the degree of disability from bilateral service-connected defective hearing. Id. In certain situations, the Rating Schedule provides for rating exceptional patterns of hearing impairment. 38 C.F.R. § 4.86. When the pure tone thresholds at the four specified frequencies of 1000, 2000, 3000, and 4000 Hz are 55 decibels or more under 38 C.F.R. § 4.86(a), or when the pure tone thresholds are 30 decibels or less at 1000 Hz and 70 decibels or more at 2000 Hz under 38 C.F.R. § 4.86(b), the Roman numeral designation for hearing impairment will be determined from either Table VI or Table VIA, whichever results in the higher numeral. Entitlement to an initial compensable disability rating for bilateral hearing loss prior to August 13, 2019 The Veteran is in receipt of a noncompensable rating for his bilateral hearing loss, effective February 24, 2014, and he seeks a compensable rating for the period on appeal. In May 2014, the Veteran was afforded a VA examination for his claimed bilateral hearing loss. Audiometric testing on a VA audiology examination dated in March 2017 revealed the following pure tone thresholds: HERTZ 1000 2000 3000 4000 RIGHT 25 45 55 65 LEFT 25 60 75 85 The average pure tone thresholds at 1000, 2000, 3000, and 4000 Hertz were 47.5 decibels for the right ear and 61.25 decibels for the left ear. Audiometry revealed speech recognition ability of 92 percent in the right ear and of 88 percent in the left ear. Bilateral sensorineural hearing loss was noted. Applying these values to Table VI, the result is a Level I Roman numeral designation for the right ear and a Level III Roman numeral designation for the left ear. Application of Table VII by comparing the right and left ear numerical designations shows that an evaluation of 0 percent is warranted. 38 C.F.R. § 4.85. The Board notes that an exceptional pattern of hearing impairment has not been shown in either ear. 38 C.F.R. § 4.86. The examiner noted that the Veteran reported functional impairment in that he has “difficulty understanding speech in noise and groups.” On February 17, 2015, the VA received a "Hearing Evaluation Report" from an unknown provider. The document does not state whether the provider was licensed, nor does it provide Maryland CNC speech discrimination scores. The audio report did not provide results of a speech discrimination test as required by 38 C.F.R. § 4.85. Therefore, this report is not adequate for evaluating hearing loss for VA compensation for the Veteran. There has been no other evidence received showing that the Veteran’s bilateral hearing loss has increased in severity. However, using these figures, the February 2015 “Hearing Evaluation Report” revealed the following pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 10 40 45 50 LEFT 25 55 65 65 The average pure tone thresholds at 1000, 2000, 3000, and 4000 Hertz were 36.25 decibels for the right ear and 52.5 decibels for the left ear. The “discrimination loss” percentage for the Veteran’s right ear was 80 percent and 85 percent in the left ear, Applying these values to Table VI, the result is a Level III Roman numeral designation for the right ear and a Level II Roman numeral designation for the left ear. Application of Table VII by comparing the right and left ear numerical designations shows that an evaluation of 0 percent is warranted. 38 C.F.R. § 4.85. The Board notes that an exceptional pattern of hearing impairment has not been shown in either ear. 38 C.F.R. § 4.86. Thus, even if the 2015 “Hearing Evaluation Report” was a Maryland CNC test, the test would not warrant a compensable rating. VA medical records also reveal the Veteran underwent audiometric testing in October 2018. The VA audiologist stated that the Veteran’s hearing was unchanged from the 2014 test. The audiologist also wrote that testing showed a moderately severe high frequency sensorineural loss with good speech discrimination. The 2020 Board remand requested this 2018 audiology record in order to adjudicate the claim. The graph the VAMC provided did not list the type of exam used or the speech recognition scores. The RO contacted the audiologist to gather more information regarding the audiology examination and received an electronic mail response on May 13, 2020. The audiologist stated that the 2018 examination would not be useful because the audiogram was not Maryland CNC recorded. Therefore, this report is not adequate for evaluation of the Veteran’s claim for a compensable rating for bilateral hearing loss prior to August 13, 2019. In addition to the medical evidence above, the Board has considered the lay evidence of record including the contention that the Veteran is entitled to a compensable rating due to the use of hearing aids. A layperson's testimony is competent evidence in regard to the symptoms he experiences. Heuer v. Brown, 7 Vet. App. 379, 384 (1995). However, disability ratings for hearing impairment are derived by a mechanical application of the Rating Schedule to the numeric designations assigned after audiometric evaluations are rendered. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). As such, the medical evidence is considered the most probative evidence with regard to the level of severity of the Veteran's service-connected hearing loss. Moreover, the May 2014 VA examiner considered the functional effects of the Veteran's hearing loss, and the Board finds that those effects are consistent with the degree of hearing loss shown and fully contemplated by the assigned evaluation. Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). In addition, the 2018 VA audiologist found that the Veteran’s hearing was unchanged since 2014. Based on the foregoing, the evidence of record showed no distinct periods of time during the appeal period when the Veteran's service-connected bilateral hearing loss warranted a compensable rating prior to August 13, 2019. In summation, the preponderance of the evidence is against the Veteran's claim for a compensable disability rating, the claim must be denied, and the benefit-of-the-doubt doctrine is not for application. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Entitlement to a disability rating for bilateral hearing loss in excess of 30 percent from August 13, 2009 The Veteran is in receipt of a 30 percent rating for his bilateral hearing loss, effective August 13, 2019, and seeks an increased rating thereafter and/or an earlier effective date of the 30 percent rating. The Veteran was afforded a second VA examination in August 2019. The pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 25 50 65 70 LEFT 30 50 60 65 The average pure tone thresholds at 1000, 2000, 3000, and 4000 Hertz were 52.5 decibels for the right ear and 51.25 decibels for the left ear. Speech audiometry revealed speech recognition ability of 60 percent in the right ear and of 64 percent in the left ear. Bilateral sensorineural hearing loss was noted. Applying these values to Table VI, the result is a Level VI Roman numeral designation for the right ear and a Level VI Roman numeral designation for the left ear. Application of Table VII by comparing the right and left ear numerical designations shows that an evaluation of 30 percent is warranted. 38 C.F.R. § 4.85. The Board notes that an exceptional pattern of hearing impairment has not been shown in either ear. 38 C.F.R. § 4.86. It was noted that the Veteran reported a functional impairment in that he has “difficulty understanding speech in quiet, noise, on the telephone, and the television.” The Board expressly acknowledges its consideration of the lay evidence of record when adjudicating this claim, including that the Veteran reported difficulty understanding speech in quiet, noise, on the telephone, and the television. 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, 3 Vet. App. at 349. The rating criteria contemplate speech reception thresholds and 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). Additionally, the August 2019 VA examination is the earliest date the Veteran’s hearing loss was ascertainable at a 30 percent rating. No other evidence has been submitted, and there is no other evidence to support an increased rating. Accordingly, the preponderance of the evidence is against the claim of entitlement to a rating in excess of 30 percent or earlier effective date for bilateral hearing loss, and the benefit-of-the-doubt doctrine is not for application. The claim therefore must be denied. 38 U.S.C. § 5107(b); see also Gilbert, 1 Vet. App. at 57. A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Hetman 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.