Citation Nr: 21011074 Decision Date: 02/26/21 Archive Date: 02/26/21 DOCKET NO. 12-21 287 DATE: February 26, 2021 ORDER An initial compensable disability rating for bilateral hearing loss, for the appeal period prior to February 16, 2017, is denied. A disability rating of 10 percent for bilateral hearing loss, from February 16, 2017 onward, is granted. FINDINGS OF FACT 1. The Veteran’s bilateral hearing loss disability manifested as no worse than Level I hearing impairment in the right ear and Level II hearing impairment in the left ear prior to February 16, 2017. 2. The Veteran’s bilateral hearing loss disability manifested as no worse than Level IV hearing impairment in the right ear and Level V hearing impairment in the left ear from February 16, 2017 onward. CONCLUSIONS OF LAW 1. The criteria for entitlement to a compensable disability rating for bilateral hearing loss, for the appeal period prior to February 16, 2017, have not been met. 38 U.S.C. §§ 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.3, 4.7, 4.85, Diagnostic Code (DC) 6100. 2. The criteria for a disability rating of 10 percent, but no higher, are met from February 16, 2017. 38 U.S.C. §§ 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.3, 4.7, 4.85, DC 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1967 to October 1970. This case is before the Board of Veterans’ Appeals (Board) on appeal from a February 2011 Department of Veterans Affairs (VA) Regional Office (RO) rating decision. In that rating decision, the RO denied granted service connection for bilateral hearing loss, and assigned a noncompensable rating effective February 26, 2010. The Veteran timely appealed, and in September 2016 the Board denied the claim for entitlement to a compensable disability rating for bilateral hearing loss; and, declined to refer the claim to an appropriate agency official for extraschedular consideration. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (CAVC or Court). In a January 2018 Memorandum Decision, the Court vacated the portion of the September 2016 Board decision which denied the claim for entitlement to a compensable disability rating for bilateral hearing loss and declined to refer the claim to an appropriate agency official for extraschedular consideration; and remanded the case for further development in compliance with the directives specified in the decision. In December 2018, the Board remanded the case back to the RO for additional development of the record pursuant to the directives specified in the January 2018 Memorandum Decision. In a December 2020 rating decision, the RO granted an increased disability rating of 10 percent, effective from October 27, 2020, for bilateral hearing loss. Because that grant does not constitute a full grant of the benefits sought on appeal, the appeal remains before the Board. Increased Rating Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C. § 1155 (2012). Separate diagnostic codes identify the various disabilities. 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 (2017). If there is a question as to which disability rating to apply to the Veteran’s disability, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2017). In general, to evaluate the degree of disability from defective hearing, the Rating Schedule establishes eleven auditory acuity levels from Level I for essentially normal acuity through Level XI for profound deafness. 38 C.F.R. §§ 4.85, 4.87, Tables VI, VIa, VII (2017). Organic impairment of hearing acuity is measured by the results of controlled speech discrimination tests (Maryland CNC) together with the average hearing threshold level as measured by a pure tone audiometry test in the frequencies of 1000, 2000, 3000, and 4000 cycles per second. See 38 C.F.R. § 4.85 (a), (d) (2017). Ratings of hearing loss disability involve mechanical application of the rating criteria to the findings on official audiometry. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). The schedular ratings are intended to make proper allowance for improvement by hearing aids. 38 C.F.R. § 4.86 (2017). Exceptional patterns of hearing impairment are rated under 38 C.F.R. § 4.86. Specifically, an exceptional pattern of hearing loss is hearing loss of 55 decibels or more in each of the four specified frequencies (i.e. 1000, 2000, 3000, and 4000 Hertz), or hearing loss with a pure tone threshold of 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz. 38 C.F.R. § 4.86 (a), (b) (2017). Where there is an exceptional pattern of hearing loss of 55 decibels or more in each of the four specified frequencies, 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) (2017). 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. See Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). The Veteran’s entire history is reviewed when making disability evaluations. See generally 38 C.F.R. § 4.1 (2017); Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where the question for consideration is the propriety of the initial evaluation assigned, evaluation of the evidence since the grant of service connection and consideration of the appropriateness of a “staged rating” (assignment of different ratings for distinct periods of time, based on the facts found) is required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). 1. Entitlement to an initial compensable disability rating for bilateral hearing loss, and a disability rating in excess of 10 percent from October 27, 2020 The Veteran contends that his bilateral hearing loss disability warrants a compensable disability rating for the appeal period prior to October 27, 2020; and, in excess of 10 percent from October 27, 2020 onward. The Veteran had VA hearing examinations in September 2010, September 2013, and October 2020. At the September 2010 examination, speech discrimination testing was 94 percent in each ear. Audiometric testing revealed the following puretone thresholds (in dB): HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 35 50 50 LEFT 15 15 35 50 55 The average puretone threshold was 37.5 dB for the right ear, and 38.75 dB for the left ear. In July 2012 Correspondence, the Veteran stated “I’m not an audiologist and I’m not exactly sure what [a speech discrimination score of 94 means], but I can tell you that I absolutely do not hear and understand 94 percent of what I hear.” He acknowledged that he can hear well in a noiseless room, such as that in which the test was conducted. However, he reported that he feels “lucky” if he can hear 30 percent of what is said during his everyday life, and reported continually worsening hearing. At the September 2013 examination, speech discrimination testing was 92 percent in the right ear, and 90 percent in the left ear. When asked whether the hearing loss impacts the Veteran’s ordinary conditions of daily life, including ability to work, the examiner stated “No.” Audiometric testing revealed the following puretone thresholds (in dB): HERTZ 500 1000 2000 3000 4000 RIGHT 15 20 35 55 55 LEFT 15 20 40 50 55 The average puretone threshold was 41 dB for the right ear, and 41 dB for the left ear. In August 2014 Correspondence, the Veteran offered an argument against the results of the September 2013 VA examination which used similar language to that used in the July 2012 correspondence. That is, he stated that he does not believe that the speech discrimination results obtained at the September 2013 examination were accurate; that he “sometimes feel[s] like I do not understand half of what I hear;” and that he feels “lucky” if he can hear “30 percent of what’s going on around me.” VA treatment records show that a VA clinical audiologist reviewed a February 16, 2017 private audiogram which indicated sensorineural hearing loss, bilaterally. The note indicates that the audiogram was entered into “National Repository,” but the audiogram has not been associated with the record. Moreover, based on the results of the February 2017 hearing test, the Veteran was recommended for hearing aids. At the October 2020 examination, speech discrimination testing was 80 percent in the right ear, and 68 percent in the left ear. Audiometric testing revealed the following puretone thresholds (in dB): HERTZ 500 1000 2000 3000 4000 RIGHT 25 30 50 60 70 LEFT 20 30 45 60 70 The average puretone threshold was 52.5 dB for the right ear, and 51.25 dB for the left ear. The examiner was asked to describe the functional impairment caused by the bilateral hearing loss. When asked to describe how the hearing loss impacts the ordinary conditions of the Veteran’s life, the examiner cited the Veteran, who reported that he says “huh” often when he does not have his hearing aids, and at times, even when he has his hearing aids. He reported difficulty understanding people who speak with accents, and is unable to hear when using the phone—even, at times, when using his hearing aids. He keeps his television volume up, and misses “a lot” without his hearing aids but does not see much improvement when using the hearing aids. The examiner specifically noted that the Veteran is retired and thus there is no impact on occupational functioning. Nonetheless, the examiner noted that the type and severity of the Veteran’s hearing loss will significantly impact his communication abilities and requires the use of hearing aids. His word recognition scores, which reflect the ability to process speech and indicate how successful the Veteran is able to perform when fit with the appropriate hearing aids, were noted as “poor.” Thus, the examiner found it likely that even with accurately fit hearing aids, the Veteran would experience significant communication difficulties. The medical and lay evidence must all be considered in determining whether the criteria for an increased rating are met at any time during the appeal period. Applying the diagnostic criteria to the results of the September 2010 and September 2013 VA examinations reveals (i) Level I hearing impairment in each ear in September 2010, and (ii) Level I hearing impairment in the right ear with Level II hearing impairment in the left ear in September 2013. Applying these findings to Table VII, these results reflect that assignment of a noncompensable rating is warranted. Applying the diagnostic criteria to the results of the October 2020 VA examination reveals Level IV hearing impairment in the right ear, and Level V hearing impairment in the right ear. Applying these findings to Table VII, a 10 percent disability rating is warranted. However, consideration of the Veteran’s lay statements, and the February 2017 VA audiology note, is necessary, and provides additional insight into the level of impairment present throughout the appeal period. Notably, VA treatment records are silent as to any evidence of the specific puretone thresholds, resulting from the bilateral hearing loss disability, between September 2013 and October 2020. While the October 2020 VA examination results reflected a level of hearing impairment which warranted an increased rating of 10 percent, the Veteran asserts that the increase in hearing impairment occurred far earlier. Specifically, in the letters dated July 2012 and August 2014 he asserted that he experienced continuing decline in hearing. While the Veteran is certainly competent to report observable symptoms such as a decrease in hearing, hearing loss disability is rated by conducting a mechanical application of the rating criteria. The VA examinations were structured to obtain specific data, including puretone thresholds and speech discrimination scores, which are then directly applied to the rating criteria in a mechanical fashion that leaves no room for discretion. Finally, the Veteran’s July 2012 and August 2014 letters asserting a worsening in hearing are consistent with the results of the September 2010 and September 2013 VA examination results. However, while a comparison of the September 2010 and September 2013 examination results in fact shows some worsening in hearing, the September 2013 results still show Level I impairment in the right ear and Level II impairment in the left ear—results which implicate that a noncompensable rating is in fact the correct rating for that period. Thus, while the evidence in fact supports that the Veteran’s hearing had worsened by September 2013, the evidence also shows that the worsening was not of such a level as to warrant assignment of a compensable rating at that time. Simply put, the Veteran’s assertions of his hearing worsening are supported by the findings of the September 2010 and September 2013 VA examiners; but, that evidence also shows that the worsening did not rise to a level that would warrant assignment of a compensable rating. However, and as set out above, the February 2017 VA audiology note reflects that the Veteran was recommended for hearing aids based on the results of his February 2017 private hearing evaluation. This provides additional support for the Veteran’s assertion that the worsening of hearing loss occurred prior to October 2020. Specifically, while the note does not provide any specific puretone thresholds or speech discrimination results, it is reasonable to infer that the Veteran sought treatment—and was recommended for hearing aids—because his hearing loss had worsened. For that reason, it is reasonable to infer that the increase in hearing loss that was noted at the October 2020 examination was present on the date of the February 2017 private hearing evaluation; therefore, an effective date for the 10 percent disability rating that corresponds to the February 16, 2017 private hearing evaluation, rather than the October 2020 VA examination, is appropriate in this case. There is, however, no evidentiary basis to conclude that the Veteran’s hearing in February 2017 was worse than in October 2020. Without evidence to demonstrate that hearing is now, or was at any time during the appeal period, worse than was shown at the October 2020 VA examination, a disability rating in excess of 10 percent, from February 16, 2017, is not warranted. For these reasons, (i) a compensable disability rating for bilateral hearing loss is denied for the appeal period prior to February 16, 2017; and (ii) a disability rating of 10 percent, but no higher, is assigned from February 16, 2017. Lastly, the Board has considered whether referral for an extraschedular rating is warranted. On that issue, the September 2013 examiner simply stated “No” in response to whether the Veteran’s hearing loss disability impacts his ability to function in ordinary conditions of daily life. The Veteran’s July 2012 and August 2014 statements suggests that this determination did not fully encompass the Veteran’s lay beliefs of the extent of the disability. Specifically, in each letter he discussed how he has difficulty hearing more than “30 percent” or “50 percent” of the goings on around him. These letters carry significant probative value, because they were written contemporary to the time period at issue, and there is no reason to doubt the Veteran’s sincerity in preparing either letter. Then, the October 2020 examiner provided a more thorough discussion of the functional impact of the Veteran’s hearing loss. Based on the Veteran’s own reporting, the examiner noted that the substance of the functional impairment caused by the Veteran’s bilateral hearing loss disability is that he often has to ask others to repeat themselves; he has difficulty using the telephone, with or without hearing aids; and he keeps the volume on his television high, regardless of whether he is using hearing aids. In sum, the examiner found that the severity of his hearing loss certainly impacts his ability to communicate with others and to hear others. However, functional impairment due to hearing loss causing difficulty conducting conversations, or difficulty hearing others/hearing the television, is the type of impairment specifically considered in the schedular rating criteria. Doucette v. Shulkin, 28 Vet. App. 366, 371-72 (2017) (difficulty in distinguishing sounds in a crowded environment, locating the source of sounds, understanding conversational speech, hearing the television, and using the telephone are each a manifestation of difficulty hearing or understanding speech, which is contemplated by the schedular rating criteria for hearing loss). Moreover, the Veteran has not suggested, nor does the record show, that the Veteran experiences some other type of impairment not contemplated by the applicable rating criteria. For those reasons, referral for extraschedular consideration is not warranted in this case. Z. SAHRAIE Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. KAYS HUKILL 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. Department of Veterans Affairs YOUR RIGHTS TO APPEAL OUR DECISION The attached decision by the Board of Veterans' Appeals (Board) is the final decision for all issues addressed in the "Order" section of the decision. The Board may also choose to remand an issue or issues to the local VA office for additional development. If the Board did this in your case, then a "Remand" section follows the "Order." However, you cannot appeal an issue remanded to the local VA office because a remand is not a final decision. The advice below on how to appeal a claim applies only to issues that were allowed, denied, or dismissed in the “Order.” If you are satisfied with the outcome of your appeal, you do not need to do anything. Your local VA office will implement the Board’s decision. However, if you are not satisfied with the Board's decision on any or all of the issues allowed, denied, or dismissed, you have the following options, which are listed in no particular order of importance: • Appeal to the United States Court of Appeals for Veterans Claims (Court) • File with the Board a motion for reconsideration of this decision • File with the Board a motion to vacate this decision • File with the Board a motion for revision of this decision based on clear and unmistakable error. Although it would not affect this BVA decision, you may choose to also: • Reopen your claim at the local VA office by submitting new and material evidence. There is no time limit for filing a motion for reconsideration, a motion to vacate, or a motion for revision based on clear and unmistakable error with the Board, or a claim to reopen at the local VA office. Please note that if you file a Notice of Appeal with the Court and a motion with the Board at the same time, this may delay your appeal at the Court because of jurisdictional conflicts. If you file a Notice of Appeal with the Court before you file a motion with the Board, the Board will not be able to consider your motion without the Court's permission or until your appeal at the Court is resolved. How long do I have to start my appeal to the court? You have 120 days from the date this decision was mailed to you (as shown on the first page of this decision) to file a Notice of Appeal with the Court. If you also want to file a motion for reconsideration or a motion to vacate, you will still have time to appeal to the court. As long as you file your motion(s) with the Board within 120 days of the date this decision was mailed to you, you will have another 120 days from the date the Board decides the motion for reconsideration or the motion to vacate to appeal to the Court. You should know that even if you have a representative, as discussed below, it is your responsibility to make sure that your appeal to the Court is filed on time. Please note that the 120-day time limit to file a Notice of Appeal with the Court does not include a period of active duty. If your active military service materially affects your ability to file a Notice of Appeal (e.g., due to a combat deployment), you may also be entitled to an additional 90 days after active duty service terminates before the 120-day appeal period (or remainder of the appeal period) begins to run. How do I appeal to the United States Court of Appeals for Veterans Claims? Send your Notice of Appeal to the Court at: Clerk, U.S. Court of Appeals for Veterans Claims 625 Indiana Avenue, NW, Suite 900 Washington, DC 20004-2950 You can get information about the Notice of Appeal, the procedure for filing a Notice of Appeal, the filing fee (or a motion to waive the filing fee if payment would cause financial hardship), and other matters covered by the Court's rules directly from the Court. You can also get this information from the Court's website on the Internet at: http://www.uscourts.cavc.gov, and you can download forms directly from that website. The Court's facsimile number is (202) 501-5848. To ensure full protection of your right of appeal to the Court, you must file your Notice of Appeal with the Court, not with the Board, or any other VA office. How do I file a motion for reconsideration? You can file a motion asking the Board to reconsider any part of this decision by writing a letter to the Board clearly explaining why you believe that the Board committed an obvious error of fact or law, or stating that new and material military service records have been discovered that apply to your appeal. It is important that your letter be as specific as possible. A general statement of dissatisfaction with the Board decision or some other aspect of the VA claims adjudication process will not suffice. If the Board has decided more than one issue, be sure to tell us which issue(s) you want reconsidered. Issues not clearly identified will not be considered. Send your letter to: Litigation Support Branch Board of Veterans' Appeals P.O. Box 27063 Washington, DC 20038 VA FORM DEC 2016 4597 Page 1 CONTINUED ON NEXT PAGE Remember, the Board places no time limit on filing a motion for reconsideration, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to vacate? You can file a motion asking the Board to vacate any part of this decision by writing a letter to the Board stating why you believe you were denied due process of law during your appeal. See 38 C.F.R. 20.904. For example, you were denied your right to representation through action or inaction by VA personnel, you were not provided a Statement of the Case or Supplemental Statement of the Case, or you did not get a personal hearing that you requested. You can also file a motion to vacate any part of this decision on the basis that the Board allowed benefits based on false or fraudulent evidence. Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. Remember, the Board places no time limit on filing a motion to vacate, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to revise the Board's decision on the basis of clear and unmistakable error? You can file a motion asking that the Board revise this decision if you believe that the decision is based on "clear and unmistakable error" (CUE). Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. You should be careful when preparing such a motion because it must meet specific requirements, and the Board will not review a final decision on this basis more than once. You should carefully review the Board's Rules of Practice on CUE, 38 C.F.R. 20.1400-20.1411, and seek help from a qualified representative before filing such a motion. See discussion on representation below. Remember, the Board places no time limit on filing a CUE review motion, and you can do this at any time. How do I reopen my claim? You can ask your local VA office to reopen your claim by simply sending them a statement indicating that you want to reopen your claim. However, to be successful in reopening your claim, you must submit new and material evidence to that office. See 38 C.F.R. 3.156(a). Can someone represent me in my appeal? Yes. You can always represent yourself in any claim before VA, including the Board, but you can also appoint someone to represent you. An accredited representative of a recognized service organization may represent you free of charge. VA approves these organizations to help veterans, service members, and dependents prepare their claims and present them to VA. An accredited representative works for the service organization and knows how to prepare and present claims. You can find a listing of these organizations on the Internet at: http://www.va.gov/vso/. You can also choose to be represented by a private attorney or by an "agent." (An agent is a person who is not a lawyer, but is specially accredited by VA.) If you want someone to represent you before the Court, rather than before the VA, you can get information on how to do so at the Court’s website at: http://www.uscourts.cavc.gov. The Court’s website provides a state-by-state listing of persons admitted to practice before the Court who have indicated their availability to the represent appellants. You may also request this information by writing directly to the Court. Information about free representation through the Veterans Consortium Pro Bono Program is also available at the Court’s website, or at: http://www.vetsprobono.org, mail@vetsprobono.org, or (855) 446-9678. Do I have to pay an attorney or agent to represent me? An attorney or agent may charge a fee to represent you after a notice of disagreement has been filed with respect to your case, provided that the notice of disagreement was filed on or after June 20, 2007. See 38 U.S.C. 5904; 38 C.F.R. 14.636. If the notice of disagreement was filed before June 20, 2007, an attorney or accredited agent may charge fees for services, but only after the Board first issues a final decision in the case, and only if the agent or attorney is hired within one year of the Board’s decision. See 38 C.F.R. 14.636(c)(2). The notice of disagreement limitation does not apply to fees charged, allowed, or paid for services provided with respect to proceedings before a court. VA cannot pay the fees of your attorney or agent, with the exception of payment of fees out of past-due benefits awarded to you on the basis of your claim when provided for in a fee agreement. Fee for VA home and small business loan cases: An attorney or agent may charge you a reasonable fee for services involving a VA home loan or small business loan. See 38 U.S.C. 5904; 38 C.F.R. 14.636(d). Filing of Fee Agreements: If you hire an attorney or agent to represent you, a copy of any fee agreement must be sent to VA. The fee agreement must clearly specify if VA is to pay the attorney or agent directly out of past-due benefits. See 38 C.F.R. 14.636(g)(2). If the fee agreement provides for the direct payment of fees out of past-due benefits, a copy of the direct-pay fee agreement must be filed with the agency of original jurisdiction within 30 days of its execution. A copy of any fee agreement that is not a direct-pay fee agreement must be filed with the Office of the General Counsel within 30 days of its execution by mailing the copy to the following address: Office of the General Counsel (022D), Department of Veterans Affairs, 810 Vermont Avenue, NW, Washington, DC 20420. See 38 C.F.R. 14.636(g)(3). The Office of the General Counsel may decide, on its own, to review a fee agreement or expenses charged by your agent or attorney for reasonableness. You can also file a motion requesting such review to the address above for the Office of the General Counsel. See 38 C.F.R. 14.636(i); 14.637(d). VA FORM DEC 2016 4597 Page 2 SUPERSEDES VA FORM 4597, APR 2015, WHICH WILL NOT BE USED