Citation Nr: 21010696 Decision Date: 02/25/21 Archive Date: 02/25/21 DOCKET NO. 17-15 540 DATE: February 25, 2021 ORDER The claim of entitlement to an initial, compensable rating prior to December 28, 2020, and a rating greater than 20 percent from that date, for service-connected bilateral hearing loss is denied FINDINGS OF FACT 1. Prior to December 28, 2020, the Veteran had no worse than Level III hearing in each ear. 2. Since December 28, 2020, the Veteran has had no worse than Level VIII hearing in the right ear and Level IV hearing in the left ear. CONCLUSIONS OF LAW 1. The criteria for an initial, compensable rating for bilateral hearing loss, prior to December 28, 2020, are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.7, 4.85, 4.86, Diagnostic Code (DC) 6100. 2. The criteria for a rating greater than 20 percent for bilateral hearing loss, from December 28, 2020, are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.7, 4.85, 4.86, DC 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1966 to January 1968. This appeal to the Board of Veterans’ Appeals (Board) arose from an April 2015 rating decision in which the Department of Veterans Affairs (VA) Regional Office (RO), inter alia, granted service connection for bilateral hearing loss and assigned a noncompensable (zero percent) rating, effective March 31, 2013. The Veteran timely appealed that decision. This appeal has been advanced on the Board’s docket pursuant to 38 U.S.C. § 7107(a)(2) and 38 C.F.R. § 20.900(c). In September 2020, the Veteran testified during a Board video-conference hearing. A hearing transcript is associated with the claims file. In November 2020, the Board remanded the claim on appeal to the agency of original jurisdiction (AOJ), for additional development. After accomplishing further action, the AOJ granted a 20 percent rating for bilateral hearing loss, effective December 28, 2020 (as reflected in a January 2021 rating decision) but denied an initial compensable rating before that date and a rating greater than 20 percent from that date (as reflected in a January 2021 supplemental statement of the case (SSOC)). As the Veteran has not been granted the maximum rating available for hearing loss (which he is presumed to seek), the Board has characterized the claim to reflect the staged ratings assigned. See AB v. Brown, 6 Vet. App. 35, 38 (1993). Disability evaluations are assigned to reflect levels of current disability. The appropriate rating is determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27. The degrees of disability specified are considered adequate to compensate for a loss of working time proportionate to the severity of the disability. 38 C.F.R. § 4.1. When 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. The Veteran’s bilateral hearing loss is currently assigned a noncompensable disability rating, prior to December 28, 2020 and a 20 percent rating from that date, pursuant to 38 C.F.R. § 4.85, DC 6100. In evaluating 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). 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 puretone audiometric tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second. The rating schedule establishes eleven 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 puretone audiometry tests. The vertical line in Table VI represents 9 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 puretone 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 puretone decibel loss. The percentage evaluation is found from Table VII 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. 38 C.F.R. § 4.85 (includes Tables VI, VIA, and VII). Regulations also provide that in cases of exceptional hearing loss, i.e., when the puretone 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) provide that when the puretone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz, 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. That numeral will then be elevated to the next higher Roman numeral. The Veteran asserts that his hearing loss has worsened in severity, and that his hearing loss is worse in his right ear at the higher levels. Turning to the record for the relevant period, On the December 2014 VA audiological examination, pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 15 55 70 80 55 LEFT 30 60 70 75 59 Maryland CNC speech recognition scores were 88 percent in the right ear and 88 percent in the left ear. Using Table VI, the Veteran’s December 2014 examination results revealed level III in the right ear and level III in the left ear. Combining these levels according to Table VII results in a 0 rating. On the January 2017 VA audiological examination, pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 20 60 75 80 59 LEFT 35 60 65 70 58 Maryland CNC speech recognition scores were 84 percent in the right ear and 88 percent in the left ear. Using Table VI, the Veteran’s January 2017 VA examination results revealed level III in the right ear and level III in the left ear. Combining these levels according to Table VII results in a 0 rating. Pursuant to the Board remand, VA audiological examination was obtained in December 2020. Pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 45 70 75 80 68 LEFT 50 65 75 75 66 Maryland CNC speech recognition scores were 52 percent in the right ear and 80 percent in the left ear. Using Table VI, the Veteran’s December 2020 VA examination results revealed level VIII in the right ear and level IV in the left ear. Combining these levels according to Table VII results in a 20 rating. The Board has also considered the provisions of 38 C.F.R. § 4.86 governing exceptional patterns of hearing impairment. However, the audiological reports do not demonstrate that each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) in either ear is 55 decibels or more or that the pure tone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz in either ear. Therefore, the provisions of 38 C.F.R. § 4.86 are not applicable. Based on the foregoing, the audiological evidence does not show that the Veteran is entitled to an initial compensable disability rating for his hearing loss prior to December 28, 2020 and a rating greater than 20 percent from that date. The Board has considered the Veteran’s assertions regarding his diminished hearing. However, the assignment of disability ratings for hearing impairment is derived by a mechanical application of the Rating Schedule to the numeric designations based on the audiology examination results. Lendenmann, 3 Vet. App. at 349. It is clear from the Rating Schedule that a higher rating can be awarded only when loss of hearing has reached a specified measurable level. As such, an increased evaluation is not warranted. See also Doucette v. Shulkin, 28 Vet. App. 366 (2017) (the rating criteria for hearing loss contemplate the functional effects of decreased hearing and difficulty understanding speech in an everyday work environment, as these are the effects that VA’s audiometric tests are designed to measure). In Martinak v. Nicholson, 21 Vet. App. 447 (2007) the Court addressed a challenge to VA’s audiological testing practices, specifically, whether VA’s policy of conducting all audiometry testing of hearing-loss claimants in a sound-controlled room was valid. The Court also addressed the requirements for an adequate VA audiological examination report. The Court upheld VA’s policy of conducting audiometry testing in a sound-controlled room. The Court also held that, in addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in his or her final report. The December 2014, January 2017, and December 2020 VA examiners described the functional impact of the Veteran’s hearing loss, and thus complied with Martinak. For the foregoing reasons, the preponderance of the evidence is against an initial, compensable disability rating for the Veteran’s bilateral hearing loss prior to December 28, 2020, and a rating greater than 20 percent from that date. The benefit of the doubt doctrine is therefore not for application and the claim for an initial, compensable rating for bilateral hearing loss prior to December 28, 2020, and a rating greater than 20 percent from that date must be denied. K. Parakkal Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Kovacs, 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.