Citation Nr: 21013168 Decision Date: 03/08/21 Archive Date: 03/08/21 DOCKET NO. 14-07 307 DATE: March 8, 2021 ORDER From November 7, 2017, a 30 percent rating for bilateral hearing loss is granted, subject to controlling regulations governing the payment of monetary awards. A rating higher than 30 percent rating for bilateral hearing loss is denied. FINDINGS OF FACT 1. For the period October 27, 2016 to November 7, 2017, the Veteran’s bilateral hearing loss was manifested by no worse than level IV hearing impairment in the right ear and level VIII hearing impairment in the left ear. 2. From November 7, 2017, the Veteran’s bilateral hearing loss has been manifested by, at most, level IV hearing impairment in the right ear and level XI hearing impairment in the left ear. CONCLUSIONS OF LAW 1. The criteria for a 30 percent rating, from November 7, 2017 but no earlier, are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.85, Diagnostic Code (DC) 6100. 2. The criteria for a rating higher than 30 percent are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.85, DC 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served as a member of the Army National Guard with a period of active duty for training (ACDUTRA) from March 1965 to July 1965. The case is on appeal from an October 2012 rating decision. In November 2017, the Board denied the Veteran’s initial higher “staged” rating claim for bilateral hearing loss. Thereafter, the Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). In an August 2018 Memorandum Decision, the Court affirmed the Board’s November 2017 decision as to an initial compensable rating for bilateral hearing loss prior to January 22, 2015, and in excess of 10 percent to October 26, 2016. The Court also vacated that portion of the November 2017 Board decision that denied a rating in excess of 20 percent for bilateral hearing loss, from October 27, 2016, and remanded that part of the claim to the Board. In December 2018, the Board remanded the appeal for additional development. By rating decision in November 2020, the rating for bilateral hearing loss was increased to 30 percent from August 29, 2018. As the increase did not satisfy the appeal in full, the issue remains on appeal. See AB v. Brown, 6 Vet. App. 35 (1993). Thus, the Board has recharacterized the matter to reflect the staged rating assigned. The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). 1. A rating higher than 20 percent for bilateral hearing loss prior to August 29, 2018. 2. A rating higher than 30 percent for bilateral hearing loss. Rating Criteria Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. 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, DC 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). Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Analysis As reflected above, the appeal period currently before the Board begins October 27, 2016, and, subsequent to the Board’s December 2018 remand, the Regional Office (RO) assigned a staged rating for bilateral hearing loss by increasing the rating to 30 percent from August 29, 2018. Separate ratings may be assigned for separate periods of time based on the facts found, a practice known as “staged” ratings. 38 C.F.R. § 4.2; Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). An October 2016 VA audiological evaluation, see November 2016 VA examination, reveals that the Veteran reported difficulty understanding speech, particularly in the presence of background noise. 38 C.F.R. § 4.10; Martinak v. Nicholson, 21 Vet. App. 447 (2007). The Veteran’s Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: October 27, 2016 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 25 50 65 75 54 80 LEFT 35 50 65 70 55 50 Applying the results to Table VI, the findings yield a numeric designation of Level IV in the right ear and Level VIII in the left ear. Entering the resulting bilateral numeric designation of Level IV for the right ear and Level VIII for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a 20 percent disability rating under DC 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. A January 2017 VA hearing loss examination report reveals that the Veteran reported difficulty understanding conversations, especially in group situations and in the presence of background noise, and difficulty falling asleep. 38 C.F.R. § 4.10; Martinak, 21 Vet. App. at 447. The Veteran’s Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: January 17, 2017 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 25 45 70 65 51 92 LEFT 35 55 70 70 58 48 Applying the results to Table VI, the findings yield a numeric designation of Level I in the right ear and Level VIII in the left ear. Entering the resulting bilateral numeric designation of Level I for the right ear and Level VIII for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a noncompensable rating under DC 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. A November 2017 VA hearing evaluation, see October 2020 CAPRI documents, reveals that the Veteran reported difficulty hearing speech. 38 C.F.R. § 4.10; Martinak, 21 Vet. App. at 447. The Veteran’s Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: November 6, 2017 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 20 45 60 70 49 80 LEFT 45 65 75 75 65 28 Applying the results to Table VI, the findings yield a numeric designation of Level III in the right ear and Level XI in the left ear. Entering the resulting bilateral numeric designation of Level III for the right ear and Level XI for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a 20 percent disability rating under DC 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. An August 2018 VA audiological evaluation, see November 2018 Medical Treatment Record, reveals that the Veteran reported difficulty hearing speech. 38 C.F.R. § 4.10; Martinak, 21 Vet. App. at 447. The Veteran’s Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: August 29, 2018 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 25 45 65 75 53 80 LEFT 40 60 70 75 61 26 Applying the results to Table VI, the findings yield a numeric designation of Level IV in the right ear and Level XI in the left ear. Entering the resulting bilateral numeric designation of Level IV for the right ear and Level XI for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a 30 percent disability rating under DC 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. Although the 30 percent level was not mechanically shown until the date of the August 29, 2018 evaluation, an effective date for an increased rating should not be assigned mechanically based on the date of a diagnosis. Rather, all of the facts should be examined to determine the date that the disability first manifested. The effective date for an increased rating, as well as for an initial rating or for staged ratings, is predicated on when the increase in the level of disability can be ascertained. Swain v. McDonald, 27 Vet. App. 219, 224 (2015); DeLisio v. Shinseki, 25 Vet. App. 45, 56 (2011). The Board notes that although results of audiometric testing indicate that the 30 percent level was not met on audiological evaluation in November 2017, at that time, the Veteran was referred to otolaryngology due to a significant decline in pure-tone thresholds/speech understanding in the left ear. By the time he was returned for audiological evaluation on August 29, 2018, an increase in severity had occurred. Thus, when resolving reasonable doubt in the Veteran’s favor, the Board finds that a factually ascertainable increase to the 30 percent level occurred on November 7, 2017, the day after the November 2017 hearing evaluation. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Swain, 27 Vet. App. at 224. Although the Board is granting an earlier date for the increase to 30 percent, a rating higher than 30 percent is not warranted. As reflected above, the benefit of the doubt was already applied in the Board’s grant of November 7, 2017 as the effective date for the 30 percent rating, and although more recent evaluations indicate improvement, the Regional Office (RO) continued the 30 percent rating, noting that chronic hearing loss does not routinely improve. In that respect, an August 2019 VA audiological evaluation reveals that the Veteran reported difficulty hearing in background noise. 38 C.F.R. § 4.10; Martinak, 21 Vet. App. at 447. The Veteran’s Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: August 7, 2019 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 25 45 65 70 51 84 LEFT 40 60 70 75 61 26 Applying the results to Table VI, the findings yield a numeric designation of Level II in the right ear and Level XI in the left ear. Entering the resulting bilateral numeric designation of Level II for the right ear and Level XI for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a 10 percent disability rating under DC 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. An October 2020 VA hearing evaluation, see December 2020 CAPRI documents, reflects that the Veteran reported difficulty hearing speech. 38 C.F.R. § 4.10; Martinak v. Nicholson, 21 Vet. App. 447 (2007). The Veteran’s Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: October 5, 2020 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 25 50 65 80 55 84 LEFT 45 65 75 75 65 40 Applying the results to Table VI, the findings yield a numeric designation of Level II in the right ear and Level IX in the left ear. Entering the resulting bilateral numeric designation of Level II for the right ear and Level IX for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a 10 percent disability rating under DC 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. The Board expressly acknowledges its consideration of the lay evidence of record, to include difficulty understanding speech. See January 2021 Correspondence. The Veteran is competent to report difficulty with his hearing; however, disability ratings for hearing loss are derived from a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). The rating criteria contemplate speech reception thresholds and ability to hear spoken words on Maryland CNC testing. The functional impact that the Veteran describes, is contemplated by the rating criteria. Doucette v. Shulkin, 28 Vet. App. 366 (2017). The Veteran’s main complaint is reduced hearing acuity and clarity, which is what is contemplated in the 20 percent rating currently assigned prior to November 7, 2017, and the 30 percent rating, for which the Board is granting from the earlier date of November 7, 2017. See Rossy v. Shulkin, 29 Vet. App. 142, 145 (2017). In sum, the evidence is in favor of a 30 percent for bilateral hearing loss from November 7, 2017, but no earlier. The preponderance of evidence is against a rating higher than 30 percent for bilateral hearing loss, and thus, there is no doubt to be resolved. Thus, a 30 percent rating for bilateral hearing loss is warranted from November 7, 2017, and no earlier, and a rating higher than 30 percent is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Z. SAHRAIE Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Taylor 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.