Citation Nr: 21011281 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 17-66 603 DATE: March 1, 2021 ORDER Entitlement to an initial rating in excess of 0 percent for bilateral hearing loss disability is denied. FINDING OF FACT Audiometric examinations corresponded to no greater than a level II hearing loss for the right ear and no greater than a level I hearing loss for the left ear. CONCLUSION OF LAW 1. The criteria for a rating in excess of 0 percent for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100. REASONINGS AND BASES FOR FINDINGS AND CONLUSION The Veteran served on active duty from March 1964 to January 1968. These matters are before the Board of Veterans’ Appeals (Board) on appeal from a June 2017 rating decision rendered by a Regional Office (RO) of the Department of Veterans Affairs (VA). In August 2019, the Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ). A transcript of this hearing is associated with the claims folder. With respect to the Board hearing, the undersigned Veterans Law Judge (VLJ) clarified the issue on appeal, enquired as to whether there was additional outstanding evidence, and suggested the request for a new examination. These actions complied with any duties owed during a hearing. 38 C.F.R. § 3.103. In December 2019, the Board remanded this case for further development. The December 2019 remand required that the VA schedule the Veteran for an examination with a new examiner and to request the Social Security Administration to provide copies of any records pertaining benefits receive due to Veteran’s claimed disability. Accordingly, the Board’s remand instructions have been substantially complied with. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Veteran’s Social Security records are age-based not disability-based, therefore no other records related to Veteran’s hearing loss were found. The Veteran was provided written notice of the lack of records found by the July 2020 Supplemental Statement of Case (SSOC) and was given an opportunity to respond. 1. Bilateral hearing loss disability Duty to Notify In October 2019, the VA received a Social Security Administration (SSA) profile and benefit data that made it appear Veteran was receiving disability insurance. On December 10, 2019, the Board remanded in order to request the SSA copies of medical records that pertained to the Veteran’s application for SSA disability benefits. The Board instructions included that after continued efforts to obtain Federal records, if the AOJ concludes that it is reasonably certain they do not exist or further efforts to obtain them would be futile, the Veteran should be notified in accordance with 38 C.F.R. § 3.159(e). The Board instructions further elaborated that the Veteran as well must then be given a chance to respond. A review of the record reveals that in December 17, 2019, the AOJ requested the Veteran's medical records related to his SSA disability application. However, the AOJ subsequently received a negative response from SSA. The AOJ determined that Veteran’s Social Security eligibility is age-based, not disability based therefore there are no records. The AOJ included this information in a July 2020 SSOC which was sent to Veteran. Under 38 C.F.R. § 3.159(e), if VA makes reasonable efforts to obtain relevant non-Federal records but is unable to obtain them, or after continued efforts to obtain Federal records concludes that it is reasonably certain they do not exist or further efforts to obtain them would be futile, VA will provide the claimant with oral or written notice of that fact. The July 2020 SSOC provided written notice to the Veteran that these records did not exist pursuant to 38 C.F.R. § 3.159(e). Schedular Ratings Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1 (2017); Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Here, as explained below, a uniform evaluation of the disability on appeal is warranted. If the evidence for and against a claim is in equipoise, the claim will be granted. 38 C.F.R. § 4.3. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Bilateral Hearing Loss Disability Assignment of a disability rating for hearing loss is derived by a mechanical application of the rating schedule to the specific numeric designations assigned after audiology testing is completed. Lendenmann v. Principi, 3 Vet. App. 345 (1992). An examination for hearing impairment for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a Puretone audiometry test. 38 C.F.R. § 4.85. The rating schedule establishes 11 auditory hearing acuity levels based upon average Puretone thresholds and speech discrimination. See 38 C.F.R. § 4.85. "Puretone threshold average" as used in Tables VI and VIa is the sum of the Puretone thresholds at 1000, 2000, 3000, and 4000 Hertz and divided by four. This average is used in all cases (including those of § 4.86) to determine a Roman numeral designation from Tables VI and VIa. 38 C.F.R. § 4.85(d). Table VI, "Numeric Designation of Hearing Impairment Based on Puretone Threshold Average and Speech Discrimination," is used to determine a Roman numeral designation (I through XI) for hearing impairment based on a combination of the percent of speech discrimination (horizontal rows) and the Puretone threshold average (vertical columns). The Roman numeral designation is located at the point where the row and column intersect. 38 C.F.R. § 4.85(b). Table VIa, "Numeric Designation of Hearing Impairment Based Only on Puretone Threshold Average," is used to determine a Roman numeral designation (I through XI) for hearing impairment based only on Puretone threshold average. Table VIa is used when the examiner certifies that the use of the speech discrimination test is not appropriate due to language difficulties, inconsistent speech discrimination scores, etc., or when indicated under the provisions of § 4.86. 38 C.F.R. § 4.85(c). Table VII, "Percentage Evaluations of Hearing Impairment," is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment in each ear. The horizontal rows represent the ear having better hearing and the vertical columns represent the ear having the poorer hearing. The percentage evaluation is located at the point where the row and the column intersect. 38 C.F.R. § 4.85(e). Special provisions apply in instances of exceptional hearing loss. 38 C.F.R. § 4.86. When the Puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) are all 55 decibels or more, the adjudicator must determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. 38 C.F.R. § 4.86(a). Also, 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. Each ear is evaluated separately. 38 C.F.R. § 4.86(b). 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). The Veteran contends that his service-connected bilateral hearing loss disability warrants an evaluation higher than 0 percent. On October 2019, the VA provided an examination to the Veteran to determine his hearing disability rating. The Puretone threshold and Maryland CNC speech discrimination results were as follows:        HERTZ     1000 2000 3000 4000 RIGHT 45 45 50 60  LEFT 40 40 45 50 Neither the right or left ear could provide a word discrimination score due to the Veteran’s language difficulties, cognitive problems or inconsistent word recognition scores. The VA examiner diagnosed both the right and left ear with sensorineural hearing loss (in the frequency range of 500-4000hz). From Table VIa of 38 C.F.R § 4.85 Roman Numeral II is derived for the right ear and Roman Numeral I is derived for the left ear. A 0 percent evaluation is derived from Table VII by intersecting row I with column II. An October 2019 rating decision was issued to Veteran providing him a 0 percent evaluation for bilateral hearing loss. Subsequently, the Board issued a remand to obtain additional records and afford another VA audiological examination with a new examiner for the Veteran. In January 2020 another VA examination was provided to the Veteran with a different VA examiner. Another Puretone threshold and Maryland CNC speech discrimination test was conducted and the results were as follows:        HERTZ     1000 2000 3000 4000 RIGHT CNT CNT CNT CNT LEFT CNT CNT CNT CNT The Puretone threshold and Maryland CNC speech discrimination scores on both ears were all marked as CNT (could not test). The examiner commented that the Veteran’s responses were inconsistent with his functional communication ability and his previous test results. The examiner explained that while these results were invalid, Veteran was able to communicate normally when the examiner spoke softly behind him. The examiner concluded that this was consistent with normal hearing/mild hearing loss. The VA examiner diagnosed the Veteran with sensorineural hearing loss (in the frequency range of 500-4000 Hz) in both ears, the same as the previous examiner. During the January 2020 examination, Veteran reported that he spent 40 years working with machinery and that he has been compensated for his hearing loss by his employer. The examiner concluded that this suggests that his hearing loss occurred while he was employed instead of during his active service. To the extent that the Veteran contends that his hearing loss is more severe that currently evaluated, the Board observes that the Veteran is competent to report symptoms such as having difficulty understanding speech. However, the Veteran is not competent to report that his hearing acuity is of sufficient severity to warrant a particular evaluation under the VA’s tables for rating hearing loss disabilities, because such an opinion requires special testing. While only one of the VA examinations were able to conduct valid tests, they both came to the same conclusion that Veteran’s hearing loss was sensorineural hearing loss (in the frequency range of 500-4000 Hz). The VA examination with valid results provided the Veteran with a 0 percent rating of bilateral hearing loss, while the later exam was invalid due to inconsistent results.. Moreover, as noted above, the Board is bound by the applicable law and regulations to mechanically apply the rating schedule to the numeric designations from audiometric test results. In this case, the “mechanical application” of the diagnostic criteria to the evidence at hand clearly establishes that the Veteran is not entitled to a compensable disability rating for hearing loss disability. Here, there is evidence of inconsistent results. The duty to assist is not a one way street or a blind alley. His inconsistent results render any further discussion of impairment to be an exercise in futility. The preponderance of the evidence is against the claim and there is no doubt to be resolved. Therefore, the Board denies Veteran’s appeal to an increase rating in excess of 0 percent for bilateral hearing loss disability. H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Konieczny, Adam 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.