Citation Nr: 21011068 Decision Date: 02/26/21 Archive Date: 02/26/21 DOCKET NO. 17-02 039 DATE: February 26, 2021 ORDER Entitlement to a compensable rating for left ear hearing loss disability prior to November 17, 2020 is denied. Entitlement to a rating greater than 80 percent for service-connected left ear hearing loss disability from November 17, 2020, to present is denied. FINDINGS OF FACT 1. The Veteran is service connected for a left ear hearing loss disability. He is not service connected for a right ear hearing loss. Audiological evaluations performed prior to November 17, 2020 reveal that he experienced no worse than a Level IX hearing impairment in the left ear. 2. Since November 17, 2020, the Veteran's service-connected left ear hearing loss disability is manifested by no worse than Level XI hearing impairment; and the non-service-connected right ear hearing loss disability is manifested by no more than a level VII hearing impairment. CONCLUSIONS OF LAW 1. The criteria for entitlement for a compensable disability rating prior to November 17, 2020 for service-connected left ear hearing loss is not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100. 2. The criteria for entitlement to a disability rating greater than 80 percent for service-connected left ear hearing loss is not met from November 17, 2020 through the present. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served active duty as a member of the United States Army from June 1960 to June 1963, and as a member of the United States Navy from September 1963 to September 1966. In October 2019, the Veteran and his brother (J.S.) appeared and testified before the undersigned Veterans Law Judge (VLJ) at a travel Board hearing. A transcript of the hearing is associated with the Veteran's claims file. This matter was previously before the Board and remanded in September 2020. As part of the Board’s remand directives, the AOJ was instructed to afford the Veteran a contemporaneous VA examination to assess the severity of his service-connected left ear hearing loss disability. The appeal has returned to the Board for further appellate consideration. During the pendency of this appeal, in a December 2020 rating decision, the AOJ increased the Veteran’s service-connected left ear hearing loss disability rating from non-compensable to 80 percent effective November 17, 2020. The Board notes that this did not constitute a full grant of the benefits sought. Accordingly, the Veteran’s increased rating appeal for his left ear hearing loss, remains in appellate status. AB v. Brown, 6 Vet. App. 35, 39 (1993). This appeal has been advanced on the Board's docket pursuant to 38C.F.R. §20.900(c) and 38 U.S.C. § 7107. In an effort to offer more expedient hearings to Veterans, the Board sent out 1,500 letters to appellants with pending Travel Board hearing requests to ask if they would like to convert to a virtual hearing. Due to a technical issue, many of these letters were sent to appellants who had actually already had their hearing and then had their cases remanded by the Board. Veterans who previously had a requested hearing but were sent the above letter in error may still be scheduled for another hearing if they respond indicating they would like a virtual hearing. However, the Board’s customer service staff will be notifying Veterans and appellants who call in that they were sent the letter in error. The record reflects that you received a letter indicating that you could request a virtual tele-hearing instead of waiting for a travel board hearing. Upon further review, you do not have a pending hearing request with regards to this matter. You provided testimony in a hearing with a Veterans Law Judge on October 24, 2019. I have considered the transcript of that hearing as evidence in making my decision Increased Ratings Disability ratings are determined by evaluating the extent to which a veteran's service-connected disability adversely affects the ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. While the Veteran's entire history is reviewed when assigning a disability rating, 38 C.F.R. § 4.1, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Additionally, the Court has held that in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. 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. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992); 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 audiometric tests at the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hertz). To evaluate the degree of disability from bilateral defective hearing, the rating schedule establishes eleven auditory acuity levels designated from Level I, for essentially normal acuity, through Level XI, for profound deafness. Id. 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. See 38 C.F.R. § 4.86(a). Similarly, if the pure tone threshold is 30 decibels or less at 1000 Hz, and 70 decibels or more at 2000 Hz, 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, and that numeral will be elevated to the next higher Roman numeral. Table VIa, "Numeric Designation of Hearing Impairment Based Only on Pure Tone Threshold Average," is used to determine a Roman numeral designation (I through XI) for hearing impairment based only on the pure tone threshold average. Table VIa will be used when the examiner certifies that use of the speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc., or when indicated under the provisions of Section 4.86, described in the preceding paragraph. 38 C.F.R. § 4.85(c). The Board further notes the United States Court of Appeals for Veterans Claims has 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." Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). At the outset, the Board notes that the Veteran is service connected for a left ear hearing loss disability effective from May 4, 2011. To date, the Veteran has not been awarded entitlement to service connection for a right ear hearing loss disability. Pursuant to 38 C.F.R. § 4.85(f), if impaired hearing is service-connected in only one ear, the non-service-connected ear will be designated as "Level I" hearing in order to determine the percentage evaluation, for the service-connected ear, from Table VII. Special considerations for hearing impairment are provided when a service-connected single ear hearing loss warrants a disability rating of 10 percent or more, and the other, nonservice-connected ear, meets the criteria for a hearing loss disability for VA purposes. See 38 C.F.R. §§ 3.383, 3.385. In order for this provision to apply, the Veteran's service-connected left ear hearing loss must warrant the assignment of a 10 percent evaluation. Specifically, the Veteran's left ear hearing loss must be assessed as either a Level X or a Level XI based upon audiological testing. See 38 C.F.R. § 4.85, Table VI. 1. Entitlement to a compensable rating for left ear hearing loss prior to November 17, 2020 As noted, above, the Veteran contends that his service-connected left ear hearing loss disability warrants a compensable rating prior to November 17, 2020. However, as will be discussed below, the Veteran's service-connected left ear hearing loss disability resulted in no worse than a Level IX hearing impairment prior to November 17, 2020. Furthermore, as the Veteran has not been awarded entitlement to service connection for a right ear hearing loss disability, the right ear will be assigned a Level I hearing impairment for rating purposes. Thus, the Board determines that a compensable rating is not warranted for the Veteran's left ear hearing loss disability for the appeal period prior to November 17, 2020. The Veteran was afforded a VA audio examination in August 2012. The pure tone thresholds, in decibels, were as follows: 1000 2000 3000 4000 Average Right 25 20 25 35 26 Left 25 25 25 65 35 Speech audiometry revealed speech recognition ability of 96 percent bilaterally. When utilizing Table VI, the Veteran’s left ear exhibits a Level I hearing impairment. A Level I hearing impairment is assigned to the right ear since it is non-service connected. After applying these results to Table VII, a noncompensable percent rating is for application. The Veteran underwent another VA audio examination in December 2016. His puretone thresholds, in decibels, were as follows: 1000 2000 3000 4000 Average Right 30 35 40 45 38 Left 35 40 40 75 48 Speech audiometry revealed speech recognition ability of 92 percent bilaterally. When utilizing Table VI, the Veteran’s left ear exhibits a Level I hearing impairment. A Level I hearing impairment is assigned to the right ear since it is non-service connected. After applying these results to Table VII, a noncompensable percent rating is for application. The Veteran submitted a private medical report from Shipman ENT & Associates. The audiologist noted that a hearing test was conducted in his office on October 11, 2016. The Veteran’s puretone thresholds in decibels, were as follows: 1000 2000 3000 4000 Average Right 65 85 75 90 85 Left 80 90 100 NR 95 Speech audiometry revealed speech recognition ability of 70 percent in the right ear and 50 percent in the left ear. When utilizing Table VI, the Veteran’s left ear exhibits a Level IX hearing impairment. A Level I hearing impairment is assigned to the right ear since it is non-service connected. After applying these results to Table VII, a noncompensable percent rating is for application. Following the Board’s September 2020 remand directives, the Veteran was afforded a VA audio examination in November 2020. His puretone thresholds, in decibels, were as follows: 1000 2000 3000 4000 Average Right 80 85 85 90 85 Left 95 100 105+ 105+ 101.25 Speech audiometry revealed speech recognition ability of 46 percent in the right ear and 16 percent in the left ear. When utilizing Table VI, the Veteran’s left ear exhibits a Level XI hearing impairment. Whenever hearing impairment in one ear is compensable to a degree of 10 percent or more as a result of service-connected disability and there is hearing impairment as a result of nonservice-connected disability that meets the provisions of 38 C.F.R. § 3.385 in the other ear, compensation is payable as if both disabilities were service-connected, provided the nonservice-connected disability is not the result of the Veteran's own willful misconduct. (38 C.F.R. § 3.383(a)(3)). In light of the foregoing, the Veteran’s right hearing loss exhibits a Level IX hearing impairment. The loss of hearing in the right ear is not a willful misconduct by the Veteran. Thus, the right ear hearing loss exhibits a Level VII hearing impairment for rating purposes. After applying these results to Table VII, an 80 percent rating is for application. The Veteran is already in receipt of this rating effective November 17, 2020. In considering the appropriate disability ratings and a review of the evidentiary record, the Board finds that at no time relevant to the period prior to November 17, 2020 has the Veteran's left ear hearing loss disability warranted the assignment of a compensable evaluation. The Board has also considered the Veteran's statements that his hearing loss is worse than the rating he received within this appeal period. Specifically, at Board hearing, the Veteran testified that he had difficulty hearing on his left side. His brother also testified that he can hear the Veteran’s TV from outside the house. See October 2019 Hearing Transcript. Here, while the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, he is not competent to identify a specific level of disability of his disabilities according to the appropriate diagnostic codes. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). On the other hand, such competent evidence concerning the nature and extent of the Veteran's hearing loss has been provided by various medical personnel (audiologists) who have examined him during the appeal timeframe and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the above examination) directly address the criteria under which his left ear hearing loss disability is evaluated. Therefore, based on the evidence of record, a compensable rating for a left ear hearing loss disability is not warranted for the period prior to November 17, 2020. Accordingly, the appeal for a higher rating is denied. 2. Entitlement to a rating greater than 80 percent for service-connected left ear hearing loss disability from November 17, 2020, to present As noted above, the Veteran is currently in receipt of an 80 percent rating for his left ear hearing loss disability effective November 17, 2020. This increased rating was based on the findings of the November 2020 VA audio examination. The Veteran contends that a rating greater than 80 percent is warranted from November 17, 2020 onwards. Again, none of the VA and private audio examinations discussed above, show any higher rating is warranted. While the Board notes the difficulties the Veteran experiences as a result of his disability, his claim primarily hinges on a mechanical application of specifically defined regulatory standards. The Board is bound by the very precise nature of the laws governing evaluations of hearing loss disability. Accordingly, the Board finds that the Veteran is not entitled to a rating greater than 80 percent for a left ear hearing loss disability from November 17, 2020 to present. DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. M. Rogers, 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.