Citation Nr: 21011352 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 15-05 536 DATE: March 1, 2021 ORDER A compensable rating prior to December 3, 2019, and in excess of 20 percent thereafter for bilateral hearing loss is denied. FINDINGS OF FACT 1. Prior to December 3, 2019, the Veteran’s bilateral hearing loss results in no worse than Level I hearing in the right and left ears. 2. As of December 3, 2019, the Veteran’s bilateral hearing loss results in no worse than Level V hearing in the right and left ears. CONCLUSION OF LAW The criteria for a compensable rating prior to December 3, 2019, and in excess of 20 percent thereafter for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.85, 4.86, Diagnostic Code (DC) 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from April 1970 to April 1972 and December 1976 to September 2000. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued in May 2014 by a Department of Veterans Affairs (VA) Regional Office (RO), which denied a compensable rating for bilateral hearing loss. In October 2018, the Veteran and his spouse testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. In March 2019, the Board remanded the case for additional development. While on remand, an April 2020 rating decision awarded an increased rating of 20 percent for the Veteran’s bilateral hearing loss as of December 3, 2019. However, as the Veteran is presumed to seek the maximum available benefit for a disability, and higher ratings for such disability remain available on appeal, such claim remains viable on appeal. AB v. Brown, 6 Vet. App. 35, 38 (1993). The case now returns for further appellate review. Entitlement to a compensable rating for bilateral hearing loss prior to December 3, 2019, and in excess of 20 percent thereafter. Disability ratings are determined by applying a schedule of ratings that 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 disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. All reasonable doubt will be resolved in the claimant’s favor. 38 C.F.R. § 4.3. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Separate ratings can be assigned for separate periods based on the facts found - a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. The appeal period before the Board begins on August 21, 2013, the date VA received the Veteran’s claim for an increased rating for his bilateral hearing loss, plus the one-year look back period. Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010). Such disability is rated as noncompensably disabling for the appeal period prior to December 3, 2019, and 20 percent disabling thereafter pursuant to 38 C.F.R. § 4.85, DC 6100. In this regard, ratings of hearing loss range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of speech discrimination tests combined with the average hearing threshold levels as measured by pure tone audiometry tests in the frequencies 1000, 2000, 3000, and 4000 cycles per second. To rate the degree of disability for service-connected hearing loss, the Rating Schedule has established eleven auditory acuity levels, designated from level I, for essentially normal acuity, through level XI, for profound deafness. 38 C.F.R. § 4.85(h), Table VI. In order to establish entitlement to a compensable rating for hearing loss, it must be shown that certain minimum levels of the combination of the percentage of speech discrimination loss and average pure tone decibel loss are met. The assignment of disability ratings for hearing impairment is derived by a mechanical application of the Rating Schedule to the numeric designations assigned after audiometric evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). The criteria for rating hearing impairment use controlled speech discrimination tests (Maryland CNC) together with the results of pure tone audiometry tests. These results are then charted on Table VI, or Table VIA in exceptional cases as described in 38 C.F.R. § 4.86, and Table VII, as set out in the Rating Schedule. 38 C.F.R. § 4.85. An exceptional pattern of hearing loss occurs when the pure tone threshold at 1000, 2000, 3000, and 4000 Hertz is 55 decibels or more, or when the pure tone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz. 38 C.F.R. § 4.86. Turning to the evidence of record, VA treatment records reflect ongoing follow up for the Veteran’s hearing aids. In November 2012, it was noted that he had normal hearing from 250 to 1000 Hertz sloping to a moderately severe to severe sensorineural hearing loss from 1500 to 8000 Hertz. Word recognition scores were 76 percent at 90 decibels in the right ear and 60 percent at 90 decibels in the left ear. At a January 2014 VA audiological examination, the Veteran reported that his bilateral hearing loss interfered with his job performance, and he had difficulty understanding speech even with hearing aids. The pure tone thresholds in decibels at the tested frequencies of 1000, 2000, 3000, and 4000 Hz were 30, 65, 60, and 60 in the right ear and 20, 65, 60, and 60 in the left ear, respectively. The examiner noted that the pure tone threshold average in the right ear was 53.75 decibels and the average in the left ear was 51.25 decibels. No exceptional pattern of hearing loss was shown. Speech recognition scores were 94 percent bilaterally. These audiometric test results equate to Level I hearing in both ears, which results in a noncompensable rating. In January 2014, the Veteran’s wife, D.F., submitted a statement detailing the difficulty of the Veteran’s hearing. She stated they were unable to go the movies, or take tours when vacationing as the Veteran cannot hear what is being said. Further, his hearing makes it hard for him to hear his granddaughter on the phone or family conversations in restaurants. He uses television subtitles, has to ask people to repeat themselves, and D.F. said she and the Veteran have arguments as he cannot fully understand their conversations or misses words. A September 2014 VA treatment record reflects that the Veteran had normal hearing from 250 to 1000 Hertz sloping to moderately-severe to severe sensorineural hearing loss from 2000 to 8000 Hertz in the right ear and normal hearing from 250 to 1000 Hertz sloping to severe sensorineural hearing loss from 2000 to 4000 Hertz rising to moderately severe hearing loss from 6000 to 8000 Hertz. Word recognition scores were noted to be good bilaterally. In a May 2015 statement, the Veteran stated he and D.F. do not go to the movies, and he has a very difficult time understanding his granddaughter on the phone. Further, he stated his hearing loss is a major handicap at work as he has a hard time hearing in meetings. A January 2017 VA treatment record reflects moderately severe sensorineural hearing loss from 1500 to 8000 Hertz in the right ear and moderate to moderately severe sensorineural hearing loss from 1500 to 8000 Hertz in the left ear. Word recognition was 76 percent in the right ear and 60 percent in the left ear. The examiner noted that, when compared to the previously test performed in 2014, the Veteran’s hearing acuity was essentially stable bilaterally while his word recognition performance worsened bilaterally. At the October 2018 Board hearing, the Veteran and D.F. testified that his hearing acuity was worsening. Specifically, the Veteran said he could not hear if he was working in a windy environment, in a moving car, or in a restaurant. At work, he has a very hard time in telecom meetings, and cannot hear questions asked while he is giving a work briefing. An October 2018 VA audiogram reflects pure tone thresholds in decibels at the tested frequencies of 1000, 2000, 3000, and 4000 Hertz were 25, 65, 65, and 60 in one unidentified ear and 30, 65, 60, and 60 in the other unidentified ear, respectively. A contemporaneous treatment record reflects that the Veteran had normal to mild hearing loss from 250 to 1000 Hertz and moderately-severe rising to moderate hearing loss from 1500 to 8000 Hertz in the right ear and normal hearing from 250 to 1000 Hertz and moderately severe rising to moderate hearing loss from 1500 to 8000 Hertz in the left ear. Word recognition scores were 68 percent at 80 decibels in the right ear and 80 percent at 80 decibels in the left ear. Pursuant to the March 2019 remand, the Veteran underwent another VA audiological examination in December 2019. At such time, he reported difficulty hearing people clearly, especially those who speak softly. The pure tone thresholds in decibels at the tested frequencies of 1000, 2000, 3000, and 4000 Hz were 30, 65, 65, and 70 in the right ear and were 25, 60, 65, and 65 in the left ear, respectively. The examiner noted that the pure tone threshold average in the right ear was 57.5 decibels and the average in the left ear was 53.75 decibels. No exceptional pattern of hearing loss was shown. Speech recognition scores were 74 percent in the right ear and 70 percent in the left ear. These audiometric test results equate to Level V hearing in both ears, which results in a 20 percent rating for bilateral hearing loss. Thus, based on the foregoing, the Board finds that, based on the audiometric results at the January 2014 and December 2019 VA examinations, a compensable rating prior to December 3, 2019, and in excess of 20 percent thereafter for bilateral hearing loss is not warranted. In this regard, the Board observes the findings reflected in the Veteran’s VA treatment records, to include the recorded word recognition scores, and his argument in August 2020 that such scores suggest a greater degree of impairment than as reflected by the currently assigned ratings; however, as such were not shown to have been performed using the Maryland CNC word list, they are inadequate for rating purposes. 38 C.F.R. § 4.85. Thus, the Board cannot rely upon such to award higher ratings. Furthermore, a rating may not be assigned based on speech discrimination scores alone. Id. Rather, the criteria for rating hearing impairment use controlled speech discrimination tests (Maryland CNC) together with the results of pure tone audiometry tests, with the exception of cases where there is an exceptional patter of hearing loss, which is not shown here. Furthermore, to the extent that the Veteran contends that his bilateral hearing loss is more severe than currently evaluated, the Board observes that the Veteran and his spouse, while competent to report symptoms capable of lay observation, to include difficulty hearing and understanding speech in a wide variety of circumstances, they are not competent to report that his hearing acuity is of sufficient severity to warrant higher ratings under VA’s tables for rating hearing loss disabilities because such an opinion requires medical expertise (training in evaluating hearing impairment), which they have not been shown to possess. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Charles v. Principi, 16 Vet. App. 370 (2002); Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Despite the foregoing, the Board acknowledges the Veteran’s and his spouse’s aforementioned reports of the difficulties associated with his bilateral hearing loss. However, even after considering such contentions as to the effects of the disability on his daily life, the Board finds that the criteria for higher ratings are not met. See Lendenmann, supra. In this regard, in Doucette v. Shulkin, 28 Vet. App. 366 (2017), the United States Court of Appeals for Veterans Claims held that 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. The Veteran has not otherwise described functional effects that are considered exceptional, or that are not otherwise contemplated by the assigned evaluation. Id. Thus, his complete disability picture is compensated under the rating schedule. The Board has also considered whether staged ratings under Hart, supra, are appropriate for the Veteran’s service-connected bilateral hearing loss; however, the Board finds that his symptomatology has been stable throughout the appeal period. Therefore, assigning staged ratings for such disability is not warranted. Further, neither the Veteran nor his representative have raised any other issues, nor have any other issues been reasonably raised by the record, in regard to the increased rating claim adjudicated herein. See Doucette, supra.. Therefore, the Board finds that a compensable rating prior to December 3, 2019, and in excess of 20 percent thereafter for bilateral hearing loss is not warranted. In reaching such determination, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, such is not applicable and his increased rating claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. A. JAEGER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. M. Kelly, 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.