Citation Nr: 21010312 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 13-05 080 DATE: February 24, 2021 ORDER An initial rating of 40 percent for service-connected bilateral hearing loss from May 22, 2012, to June 18, 2019, is granted. A rating in excess of 60 percent for service-connected bilateral hearing loss since June 19, 2019, is denied. FINDINGS OF FACT 1. For the period dated from May 22, 2012, to June 18, 2019, the Veteran’s service-connected bilateral hearing loss was manifested, at worst, by Level V hearing acuity in the right ear and Level XI hearing acuity in the left ear. 2. For the period dated since June 19, 2019, the Veteran’s service-connected bilateral hearing loss was manifested, at worst, by Level VII hearing acuity in the right ear and Level XI hearing acuity in the left ear. CONCLUSIONS OF LAW 1. The criteria for an initial rating of 40 percent, and no more, for service-connected bilateral hearing loss from May 22, 2012, to June 18, 2019, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.2, 4.3, 4.7, 4.85, 4.86, Diagnostic Code (DC) 6100. 2. The criteria for a rating in excess of 60 percent for service-connected bilateral hearing loss since June 19, 2019, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.2, 4.3, 4.7, 4.85, 4.86, DC 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from August 1955 to April 1960. In June 2017, he testified before the undersigned Veterans Law Judge (VLJ), seated at the Department of Veterans Affairs (VA) Board of Veteran’s Appeals (Board’s) Central Office in Washington, D.C. A transcript of the hearing has been associated with the claims file. Most recently, in October 2019, the Board remanded this issue for additional development; it has been returned to the Board for adjudication. Increased Ratings Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disability. 38 U.S.C. § 1155. Separate diagnostic codes identify the various disabilities. Id. It is necessary to rate the disability from the point of view of the Veteran working or seeking work, 38 C.F.R. § 4.2 and to resolve any reasonable doubt regarding the extent of the disability in the Veteran’s favor. 38 C.F.R. § 4.3. If there is a question as to which disability rating to apply to the Veteran’s disability, the higher disability rating will be assigned if the disability picture more nearly approximates the criteria for that disability rating. Otherwise, the lower disability rating will be assigned. 38 C.F.R. § 4.7. On appeal is the initial disability rating from the September 2012 rating decision granting service connection for bilateral hearing loss and assigning such an initial 10 percent rating, effective May 22, 2012. By a January 2014 rating decision, the VA Regional Office (RO) increased the rating to 20 percent, effective November 14, 2013, and by a June 2019 rating decision, a Decision Review Officer (DRO) of the RO increased the rating to 60 percent, effective June 19, 2019. As such, the severity of the disability is to be considered during the period from the initial assignment of the disability ratings, May 22, 2012, to the present. Fenderson v. West, 12 Vet. App. 119 (1999). Additionally, in determining the present level of a disability for any increased rating claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran bears the burden of presenting and supporting a claim for benefits. 38 U.S.C. § 5107 (a). In its evaluation, the Board considers all information and lay and medical evidence of record. 38 U.S.C. § 5107 (b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board gives the benefit of the doubt to the claimant. Id. In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a claimant is competent to report on that of which he or she has personal knowledge). The Board has considered the Veteran’s claim and decided entitlement based on the evidence. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record, with respect to this claim. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). The severity of a hearing loss disability is determined by comparisons of audiometric test results with specific criteria set forth at 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 puretone audiometry tests in the frequencies of 1,000, 2,000, 3,000, and 4,000 Hertz (cycles per second). Id. The Rating Schedule allows for such audiometric test results to be translated into a numeric designation ranging from Level I, for essentially normal acuity for VA compensation purposes, to Level XI, for profound deafness, in order to evaluate the degree of disability from bilateral service-connected defective hearing. 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 puretone audiometry test. Examinations are to be conducted without the use of hearing aids. Id. The rating criteria provide for rating exceptional patterns of hearing impairment when the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more, when the puretone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, and when an audiological examiner certifies that use of the speech discrimination test is inappropriate because of language difficulties, inconsistent speech discrimination scores, or other related factors. 38 C.F.R. §§ 4.85 (c), 4.86. Also, current VA guidelines direct that, when speech recognition is 92 percent or less in a given ear, a modified performance intensity function should be obtained. See VA Handbook of Standard Procedures and Best Practices for Audiology Compensation and Pension Examinations, sec. B, pt. 2, Table 7 (K.C. Dennis ed., 2004) (providing detailed procedures for obtaining a modified performance-intensity function); Revised Audio AMIE Worksheet, Veterans Benefit Administration (VBA) Fast Letter 10-06 (Dep’t of Veterans Affairs, February 17, 2010). Once the decibel level for the best performance is obtained, the word recognition ability at this level is reported as the speech recognition score. Id. The assignment of disability evaluations for hearing impairment is a purely mechanical application of the rating criteria from which the Board cannot deviate. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992); see also Massey v. Brown, 7 Vet. App. 204, 208 (1994) (finding the Board may only consider the specific factors as are enumerated in the applicable rating criteria). As to each of the periods on appeal and as discussed by the Board in its October 2019 remand, the Veteran’s service-connected bilateral hearing loss had been evaluated by VA for compensation purposes on three occasions during the entire appellate period, in June 2012, November 2013, and June 2019. The Board found that the VA examinations of record at that time were inadequate, as the Veteran demonstrated speech recognition scores of zero percent in the left ear on each occasion of VA examination and scores of less than 92 percent in the right ear in November 2013 and June 2019. The Board directed the RO, as a remedy, to afford the Veteran an adequate VA examination, one that provided a modified performance intensity function if his speech recognition scores were 92 percent or less. The Board also directed the RO to inform the examiner of the Veteran’s prior speech recognition scores and request that the examiner discuss and/or opine as to retrospective value of a modified performance intensity function, if performed at present based on the present speech recognition scores, i.e., whether any results of such may be considered as a remedy to the prior inadequate VA examinations. Resultant to the Board’s October 2019 remand, the Veteran underwent VA audiological examination in December 2019 and demonstrated speech recognition scores of 80 percent in the right ear and zero percent in the left ear. In response to the Board’s directive to obtain a modified performance intensity function if the Veteran’s speech recognition scores were 92 percent or less, the examiner responded that such was recorded on the full examination, that the best scores were included in the templates showing phonetically balanced (PB) maximum of 80 percent in the right ear and zero percent in the left ear, representing the performance intensity function for phonetically balanced words (PI-PB). In an October 2020 VA opinion, the examiner discussed that a current modified performance intensity function could be applied retroactively, that such would produce a more meaningful assessment of the Veteran’s disability, based on his profound hearing deficit demonstrated on the left side, such testing could not be performed on that side, but given the severity of his speech recognition deficit on the right side, such testing, if performed at that time, could cast light on results of past audiometric testing. The Veteran underwent VA audiological examination in November 2020, conducted by the same audiologist who conducted the December 2019 VA audiological examination, and demonstrated a speech recognition score of 72 percent in the right ear; his left ear could not be tested in this regard. It does not appear that the examiner obtained a modified performance intensity function. However, the Board has considered that this same audiologist, in her December 2019 response as to the Board’s inquiry related to modified performance intensity function, specifically directed the Board to the examination report template showing PB maximum of 80 percent in the right ear and zero percent in the left ear, representing the PI-PB, at that time, in December 2019. Applying her December 2019 response and the Veteran’s scores at that time, to the same template of the November 2020 VA audiological examination report, the Veteran showed results of 72 percent in the right ear and zero percent in his left ear, as such could not be tested. To avoid an additional remand requiring the Veteran to appear for another VA audiological examination, and resolving all doubt in favor of the Veteran, the Board will provide the Veteran the benefit of his most severe speech recognition ability, as recorded during the November 2020 VA audiological examination, 72 percent in the right ear and zero percent in his left ear, retrospectively during the entire appellate period. 1. Entitlement to an initial rating in excess of 10 percent for service-connected bilateral hearing loss from May 22, 2012, to November 13, 2013, and a rating in excess of 20 percent from November 14, 2013, to June 18, 2019. In the June 2012 Disability Benefits Questionnaire (DBQ), the Veteran presented with puretone thresholds, in decibels, in the right ear, of 35, 60, 65, 70, and in the left ear, of 70, 100, 100, 100, measured at 1000, 2000, 3000, and 4000 Hertz, respectively. The average puretone threshold was 56 decibels in the right ear and 93 decibels in the left ear and speech recognition ability was 94 percent in the right ear and zero percent in the left ear. However, as discussed above, the Board shall apply, retrospectively, the Veteran’s speech recognition ability as recorded in November 2020, 72 percent in the right ear and zero percent in his left ear. The examiner reported that the Veteran’s hearing loss impacted his ordinary conditions of daily life, including the ability to work. The Veteran complained that he could not hear much of anything in the left ear and had to have people repeat a lot, even while wearing a hearing aid in the right ear. Based on the June 2012 results, the Veteran’s hearing impairment was manifested by Level V hearing acuity in the right ear and Level XI in the left ear. 38 C.F.R. § 4.85, Table VI, DC 6100. Using Table VII, the result is a 40 percent rating for bilateral hearing impairment. See 38 C.F.R. § 4.85, Table VII, DC 6100. Based on the June 2012 results, the Veteran did not demonstrate a puretone threshold at each of the four specified frequencies of 55 decibels or more, or a puretone threshold of 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, and the examiner did not certify that use of the speech discrimination test is inappropriate because of language difficulties, inconsistent speech discrimination scores, or other related factors. Thus, consideration of exceptional patterns of hearing impairment or the use of Table VIA is not required. 38 C.F.R. §§ 4.85 (c), Table VIA, DC 6100, 4.86. In the November 2013 DBQ, the Veteran presented with puretone thresholds, in decibels, in the right ear, of 45, 60, 70, 80, and in the left ear, of 95, 105, 105, 105, measured at 1000, 2000, 3000, and 4000 Hertz, respectively. The average puretone threshold was 64 decibels in the right ear and 103 decibels in the left ear and speech recognition ability was 88 percent in the right ear and zero percent in the left ear. However, as discussed above, the Board shall apply, retrospectively, the Veteran’s speech recognition ability as recorded in November 2020, 72 percent in the right ear and zero percent in his left ear. The examiner reported that the Veteran’s hearing loss impacted his ordinary conditions of daily life, including the ability to work; the examiner also noted the significant shifts in puretone thresholds since the June 2012 VA audiological examination. The Veteran complained that his hearing was getting worse and that he had to headphones and closed captioning to watch television. Based on the November 2013 results, the Veteran’s hearing impairment was manifested by Level V hearing acuity in the right ear and Level XI in the left ear. 38 C.F.R. § 4.85, Table VI, DC 6100. Using Table VII, the result is a 40 percent rating for bilateral hearing impairment. See 38 C.F.R. § 4.85, Table VII, DC 6100. Based on the November 2013 results, the Veteran did not demonstrate a puretone threshold at each of the four specified frequencies of 55 decibels or more, or a puretone threshold of 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, and the examiner did not certify that use of the speech discrimination test is inappropriate because of language difficulties, inconsistent speech discrimination scores, or other related factors. Thus, consideration of exceptional patterns of hearing impairment or the use of Table VIA is not required. 38 C.F.R. §§ 4.85 (c), Table VIA, DC 6100, 4.86. 2. Entitlement to a rating in excess of 60 percent for service-connected bilateral hearing loss since June 19, 2019. In the June 2019 DBQ, the Veteran presented with puretone thresholds, in decibels, in the right ear, of 70, 80, 90, 90, and in the left ear, of 105, 105, 105, 105, measured at 1000, 2000, 3000, and 4000 Hertz, respectively. The average puretone threshold was 83 decibels in the right ear and 105 decibels in the left ear and speech recognition ability was 80 percent in the right ear and zero percent in the left ear. However, as discussed above, the Board shall apply, retrospectively, the Veteran’s speech recognition ability as recorded in November 2020, 72 percent in the right ear and zero percent in his left ear. The examiner reported that the Veteran’s hearing loss impacted his ordinary conditions of daily life, including the ability to work; the Veteran complained that he could not hear anything. Based on the June 2019 results, the Veteran’s hearing impairment was manifested by Level VII hearing acuity in the right ear and Level XI in the left ear. 38 C.F.R. § 4.85, Table VI, DC 6100. Using Table VII, the result is a 60 percent rating for bilateral hearing impairment. See 38 C.F.R. § 4.85, Table VII, DC 6100. Based on the June 2019 results, the Veteran demonstrated a puretone threshold at each of the four specified frequencies of 55 decibels or more, thus, consideration of exceptional patterns of hearing impairment is required. 38 C.F.R. § 4.86. Thus, using Table VIA, his hearing impairment was manifested by Level VII hearing acuity in the right ear and Level XI hearing acuity in the left ear. See 38 C.F.R. §§ 4.485, 4.86, Table VIA, DC 6100. Using Table VII, such does not result in a higher rating. See 38 C.F.R. § 4.85, Table VII, DC 6100. In the December 2019 DBQ, the Veteran presented with puretone thresholds, in decibels, in the right ear, of 50, 65, 70, 75, and in the left ear, of 105, 105, 105, 105, measured at 1000, 2000, 3000, and 4000 Hertz, respectively. The average puretone threshold was 65 decibels in the right ear and 105 decibels in the left ear and speech recognition ability was 80 percent in the right ear and zero percent in the left ear. However, as discussed above, the Board shall apply, retrospectively, the Veteran’s speech recognition ability as recorded in November 2020, 72 percent in the right ear and zero percent in his left ear. The examiner reported that the Veteran’s hearing loss impacted his ordinary conditions of daily life, including the ability to work; the Veteran complained that his hearing “was going downhill, on the left side, he was stone deaf.” Based on the December 2019 results, the Veteran’s hearing impairment was manifested by Level V hearing acuity in the right ear and Level XI in the left ear. 38 C.F.R. § 4.85, Table VI, DC 6100. Using Table VII, the result is a 40 percent rating for bilateral hearing impairment. See 38 C.F.R. § 4.85, Table VII, DC 6100. Based on the December 2019 results, the Veteran did not demonstrate a puretone threshold at each of the four specified frequencies of 55 decibels or more, or a puretone threshold of 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, and the examiner did not certify that use of the speech discrimination test is inappropriate because of language difficulties, inconsistent speech discrimination scores, or other related factors. Thus, consideration of exceptional patterns of hearing impairment or the use of Table VIA is not required. 38 C.F.R. §§ 4.85 (c) Table VIA, DC 6100, 4.86. In the November 2020 DBQ, the Veteran presented with puretone thresholds, in decibels, in the right ear, of 70, 70, 70, 70, and in the left ear, of 105, 105, 105, 105, measured at 1000, 2000, 3000, and 4000 Hertz, respectively. The average puretone threshold was 70 decibels in the right ear and 105 decibels in the left ear and speech recognition ability was 72 percent in the right ear and zero percent in the left ear, as such could not be tested. The examiner reported that the Veteran’s hearing loss impacted his ordinary conditions of daily life, including the ability to work; the Veteran complained that everything was difficult to hear and that he could not communicate well with others. Based on the November 2020 results, the Veteran’s hearing impairment was manifested by Level VI hearing acuity in the right ear and Level XI in the left ear. 38 C.F.R. § 4.85, Table VI, DC 6100. Using Table VII, the result is a 50 percent rating for bilateral hearing impairment. See 38 C.F.R. § 4.85, Table VII, DC 6100. Based on the November 2020 results, the Veteran demonstrated a puretone threshold at each of the four specified frequencies of 55 decibels or more, thus, consideration of exceptional patterns of hearing impairment is required. 38 C.F.R. § 4.86. Thus, using Table VIA, his hearing impairment was manifested by Level VI hearing acuity in the right ear and Level XI hearing acuity in the left ear. See 38 C.F.R. §§ 4.485, 4.86, Table VIA, DC 6100. Using Table VII, such does not result in a higher rating. See 38 C.F.R. § 4.85, Table VII, DC 6100. The Board has considered whether a higher rating might be warranted for any period of time during the pendency of this appeal. Fenderson, 12 Vet. App. 119. The Board, resolving all doubt in favor of the Veteran, finds that the evidence of record demonstrates that during the period dated from May 22, 2012, to June 18, 2019, the Veteran’s service-connected bilateral hearing loss warrants an initial 40 percent rating, and no more; however, the evidence of record demonstrates that during the period since June 19, 2019, his service-connected bilateral hearing loss warrants a 60 percent rating. 38 U.S.C. § 5107 (b); Gilbert, 1 Vet. App. 49. P.M. DILORENZO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Department of Veterans Affairs 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.