Citation Nr: 21012505 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 21-00 162 DATE: March 4, 2021 ORDER Entitlement to a compensable rating for service-connected bilateral hearing loss prior to December 31, 2020, and a rating in excess of 30 percent since December 31, 2020, is denied. FINDINGS OF FACT 1. Prior to December 31, 2020, the Veteran’s bilateral hearing has been manifested by hearing acuity of no worse than Level II in the right ear and no worse than Level II in the left ear. 2. Beginning on December 31, 2020, the Veteran’s bilateral hearing has been manifested by an exceptional pattern of hearing loss no worse than Level VII in the right ear and no worse than Level VI in the left ear. 3. There is no factually ascertainable basis for assigning an earlier effective date than December 31, 2020 for the grant of a 30 percent disability rating for service-connected bilateral hearing loss. CONCLUSION OF LAW The criteria for a compensable rating for bilateral hearing loss prior to December 31, 2020, and a rating in excess of 30 percent since December 31, 2020, 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. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from September 1956 to July 1959. The issues on appeal come before the Board of Veterans’ Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. This matter was previously before the Board in November 2020, following an appeal on a January 2019 rating decision granting service connection for bilateral hearing loss and assigning a noncompensable rating effective July 17, 2018. The Board remanded the issue for a Statement of the Case. Following the remand, the RO increased the rating to 30 percent, with an effective date of December 31, 2020. The Veteran appealed this decision. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). 1. Increased rating for service-connected bilateral hearing loss The Veteran is seeking increased staged ratings for his bilateral hearing loss. Disability evaluations are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. 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. Hart v. Mansfield, 21 Vet. App. 505 (2007). Evaluations of defective hearing range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of a controlled Maryland CNC speech discrimination test together with the average hearing threshold level measured by pure tone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hertz). 38 C.F.R. § 4.85, Diagnostic Code 6100. To evaluate the degree of disability from bilateral service-connected hearing loss, the schedule establishes 11 auditory hearing acuity levels designated from Level I for essentially normal hearing acuity through Level XI for profound deafness. 38 C.F.R. § 4.85, Tables VI and VII. An exceptional pattern of hearing impairment occurs when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more. 38 C.F.R. § 4.86(a). In that situation, 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. Further, when the average pure tone 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, and that numeral will then be elevated to the next higher numeral. 38 C.F.R. § 4.86(b). The Veteran was initially granted service connection for bilateral hearing loss in January 2019, at which time, he was assigned a non-compensable rating effective July 17, 2018, the date in which the Veteran filed the claim for service connection. The rating was increased to 30 percent with an effective date of December 31, 2020, based upon demonstrated decreases in the Veteran’s hearing acuity. The Veteran has challenged this rating, claiming that an earlier effective date is warranted for the 30 percent rating. During a November 2018 VA examination, the Veteran reported difficulty hearing conversations. During audiometric testing, his pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 35 50 70 80 LEFT 20 25 50 70 70 The puretone averages were 59 in the right ear and 54 in the left ear (frequencies 1000 through 4000). Speech audiometry revealed speech recognition ability of 96 percent in the right ear and 100 percent in the left ear. The examiner rendered diagnoses of sensorineural hearing loss in both ears. When plugged into the formula in 38 C.F.R. § 4.85, Table VI, these scores equate to a II in the right ear, and I in the left ear. Table VII then requires a noncompensable, or 0 percent disability rating. There was no exceptional pattern of hearing loss as defined by 38 C.F.R. § 4.86. The Veteran underwent a second VA examination in May 2019. He reported difficulty with hearing conversations. At that time, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 35 45 60 80 85 LEFT 30 35 55 75 75 The puretone averages were 68 in the right ear and 60 in the left ear (frequencies 1000 through 4000). Word recognition testing was accomplished, showing word recognition of 96 percent in the right ear and 100 percent in the left ear. These scores equate to a II in both ears, for a 0 percent rating under the provisions of 38 C.F.R. § 4.85. There was no exceptional pattern of hearing loss as defined by 38 C.F.R. § 4.86. A June 2020 statement from the Veteran’s spouse described the Veteran as “extremely hard of hearing” which has progressively worsened for the last 2 to 3 years but worse in the last year. The Veteran could not hear her conversations from 6 feet apart, and his spouse had to repeat speech. The Veteran could not hear the phone ring. He did not use hearing aids or closed captioning when watching television, and he sometime repeated what he thought he heard on television but his understanding was completely different from what had been said. The Veteran’s hearing was tested again for purposes of compensation in December 2020. He reported hearing conversation, but not understanding the conversation. He had a difficult time hearing his wife at home. At that time, puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 50 60 70 90 90 LEFT 50 55 70 80 80 The puretone averages were 77.5 in the right ear and 71.25 in the left ear. Speech audiometry revealed speech recognition ability of 84 percent in the right ear and of 78 percent in the left ear. Based on the above findings, the Veteran’s hearing loss rose to the level of an exceptional pattern of hearing impairment because his puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more. 38 C.F.R. § 4.86(a). Therefore, under Table VIA, the Veteran’s puretone averages equate to a VII in the right ear, and a VI in the left ear, for a 30 percent rating, but no higher, under the provisions of 38 C.F.R. § 4.85. The Board cannot factually ascertain from the lay and medical evidence a specific date that the Veteran’s hearing loss worsened to a compensable level. The Board is cognizant of the June 2020 statement from the Veteran’s spouse describing the Veteran as “extremely hard of hearing” and not understanding speech which is similar to his complaints at the December 2020 VA examination. However, she also described her perception of a progressive worsening of hearing over the last 2 to 3 years with the last year being the worse. Medical records reflect that the Veteran has been prescribed hearing aids throughout the appeal period. As observed above, this exercise is a mechanical one. Lendenmann, 3 Vet. App. 345 (1992). The lay description is not capable of determining the specific audiometric and word test findings necessary to establish any particular rating for any particular point of time during the appeal period. Furthermore, the Board points out that the VA examinations included discussion of the Veteran’s reported functional impacts. Martinak v. Nicholson, 21 Vet. App. 447 (2007). The Veteran supplemented the record with descriptions of functional effects by statements from himself and his spouse. With regard to functional impairment, the Veteran reported difficulties with hearing conversations. His speech discrimination abilities were specifically measured by VA audiological examinations and this functional impairment has thus been considered as part of the assigned evaluations. Martinak, 21 Vet. App. 455. Initially, the Board observes that the Veteran has had a hearing loss in both ears by VA definition throughout the appeal period. 38 C.F.R. § 3.385. The fact that he has used hearing aids throughout confirms his difficulties in hearing on a daily basis. However, applying the criteria set forth above to his audiometric results confirms that the RO performed these calculations correctly. According to the test results reported above, the Veteran’s hearing acuity decreased measurably during the two to three years this matter has been on appeal. The staged ratings assigned by the RO reflect each decrease. 38 C.F.R. § 4.85, Table VI, Table VIA, and Table VII. The Veteran does have an exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 (a), however he is precluded from consideration of a higher rating under the provisions of 38 C.F.R. § 4.86(b). (Continued on the next page)   The Court has clarified that the provisions of 38 C.F.R. §§ 4.85 and 4.86 contemplate, and thus compensate for, the functional effects of hearing loss, namely difficulty understanding speech and the inability to hear sounds in various contexts. Doucette v. Shulkin, 28 Vet. App. 366 (2017). In other words, the Veteran’s complaints regarding his hearing loss are fully encompassed by the schedular disability ratings provided in 38 C.F.R. §§ 4.85, 4.86 (a) which are the applicable regulations in this instance. As observed above, this exercise is a mechanical one, with no interpretative leeway. Lendenmann v. Principi, 3 Vet. App. 345 (1992). Although the Board sympathizes with the Veteran’s frustration at his decreased hearing acuity, the Board is constrained to follow the law and regulations as they are written and to apply them equally to all similarly situated Veterans. T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Patrick C. Brady, Attorney Advisor 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.