Citation Nr: 21013170 Decision Date: 03/08/21 Archive Date: 03/08/21 DOCKET NO. 14-44 317 DATE: March 8, 2021 ORDER Entitlement to a compensable rating for left ear hearing loss prior to September 2, 2020, and in excess of 60 percent thereafter, is denied. FINDINGS OF FACT 1. Prior to September 2, 2020, the Veteran’s hearing loss was manifested by hearing acuity of no worse than Level I in the nonservice-connected right ear and no worse than Level VIII in the service-connected left ear. 2. From September 2, 2020, the Veteran’s hearing has been manifested by hearing acuity of no worse than Level VII in the nonservice-connected right ear and no worse than Level XI in the service-connected left ear. CONCLUSION OF LAW The criteria for a compensable rating for left ear hearing loss prior to September 2, 2020, and in excess of 60 percent thereafter, are not met. 38 U.S.C. §§ 1155, 1160, 5107; 38 C.F.R. §§ 3.383, 3.385, 4.1, 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 in the United States Army from March 1971 to March 1991. This matter comes before the Board of Veterans’ Appeals (Board) from a September 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In August 2017, the Veteran testified before the undersigned Veterans Law Judge at a Board hearing. In April 2018 and January 2020, the Board remanded this matter for further development. The Board notes that in November 2019, the Veteran requested a second Board hearing. Pursuant to Quinn v. Wilkie, 31 Vet. App. 284 (2019), a veteran may have a second hearing following a Board remand. The January 2020 Board remand noted that the right to a hearing does not preclude the development or attempted development of a record found to be inadequate for decisional purposes. See 38 U.S.C. § 7107(d)(2). The January 2020 Board remand found that a second hearing was premature, as the evidentiary record at the time required an additional examination. The January 2020 Board remand noted that to not afford the second hearing was harmless, and that if the Veteran wished to request another hearing after such development was completed, he could do so. The Veteran has since not requested a second hearing. The Board also notes that in a September 2020 rating decision, the RO granted an increased evaluation of 60 percent for the Veteran’s hearing disability, recharacterized as “bilateral hearing loss,” effective September 2, 2020, the date of his most recent examination, based on application of 38 C.F.R. § 3.383(a)(3) to the results of the same. In other words, the RO rated the September 2020 audiology results as if both ears were service-connected pursuant to 38 C.F.R. § 3.383(a)(3). Contrary to the assertions of the Veteran’s representative, the RO did not issue a new award of service connection for the right ear. See September 2020 Codesheet (indicating right ear hearing loss is not service-connected). The RO was able to do this because the Veteran’s left ear manifested a hearing acuity of Level XI at this examination. This is the only examination showing sufficiently severe hearing loss in the service-connected left ear to trigger the provisions of 38 C.F.R. § 3.383(a)(3) that enable the inclusion of the Level VII hearing acuity of the nonservice-connected right ear in the rating. The present period on appeal stems from his October 18, 2011 increased rating claim, plus the one-year lookback period. See October 2011 Statement in Support of Claim. 1. Entitlement to a compensable rating for left ear hearing loss prior to September 2, 2020, and in excess of 60 percent thereafter, is denied. The Veteran asserts that his hearing loss is entitled to an increased evaluation. See February 2021 Appellant’s Post-Remand Brief; January 2020 Appellant’s Brief; June 2014 NOD; October 2011 Statement in Support of Claim. The Veteran also asserts that the RO arbitrarily established the date of examination, September 2, 2020, as the “effective date” of the 60 percent evaluation for “bilateral” hearing loss. See February 2021 Appellant’s Post-Remand Brief. This statement is construed as an assertion that an increased rating is warranted prior to the date assigned by the RO. Evaluations of defective hearing range from non-compensable 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 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, as here, impaired hearing is service-connected in only one ear, in order to determine the percentage evaluation from Table VII, the nonservice-connected ear will be assigned a Roman numeral designation for hearing impairment of I, subject to the provisions of 38 C.F.R. § 3.383. See 38 C.F.R. § 4.85(f). If the service-connected hearing loss is at least 10 percent disabling (Level X or XI) and there is hearing impairment in the nonservice-connected ear under 38 C.F.R. § 3.385, then both ears may be rated together as if they were each service-connected. 38 U.S.C. § 1160(a)(3); 38 C.F.R. §§ 3.383(a)(3), 4.85(f). In April 2009, the Veteran presented for an audiology examination, the results of which are displayed in the table below: April 2009 HERTZ   1000 2000 3000 4000 Avg CNC RIGHT 40 45 30 35 37.5 100% LEFT 70 70 65 75 70 52% Applying the results to Table VI, the findings yield a numeric designation of Level I in the right ear and VIII in the left ear. The Veteran’s left ear presents an exceptional pattern of hearing impairment and warrants a rating of VI under Table VIA. See 38 C.F.R. § 4.86(a). The higher of the two evaluations will be used. Because the service-connected left ear does not reach the Level of X or XI, the nonservice-connected right ear can only be rated at Level I. See 38 U.S.C. § 1160(a)(3); 38 C.F.R. §§ 3.383(a)(3), 4.85(f). Thus, after applying Level I for the right ear and Level VIII for the left ear to Table VII, 38 C.F.R. § 4.85, these results equate to a noncompensable rating under DC 6100. In September 2009, the Veteran presented for an audiology examination, the results of which are displayed in the table below: Sept. 2009 HERTZ   1000 2000 3000 4000 Avg CNC RIGHT 45 40 30 35 37.5 96% LEFT 75 70 65 70 70 76% Applying the results to Table VI, the findings yield a numeric designation of Level I in the right ear and IV in the left ear. The Veteran’s left ear presents an exceptional pattern of hearing impairment and warrants a rating of VI under Table VIA. See 38 C.F.R. § 4.86(a). The higher of the two evaluations will be used. Because the service-connected left ear does not reach the Level of X or XI, the nonservice-connected right ear can only be rated at Level I. See 38 U.S.C. § 1160(a)(3); 38 C.F.R. §§ 3.383(a)(3), 4.85(f). Thus, after applying Level I for the right ear and Level VI for the left ear to Table VII, 38 C.F.R. § 4.85, these results equate to a noncompensable rating under DC 6100. In December 2011, the Veteran presented for an audiology examination, the results of which are displayed in the table below: Dec. 2011 HERTZ   1000 2000 3000 4000 Avg CNC RIGHT 45 45 40 40 42.5 72% LEFT 75 75 70 70 72.5 72% Applying the results to Table VI, the findings yield a numeric designation of Level IV in the right ear and VI in the left ear. The Veteran’s left ear presents an exceptional pattern of hearing impairment and warrants a rating of VI under Table VIA. See 38 C.F.R. § 4.86(a). Because the service-connected left ear does not reach the Level of X or XI, the nonservice-connected right ear can only be rated at Level I. See 38 U.S.C. § 1160(a)(3); 38 C.F.R. §§ 3.383(a)(3), 4.85(f). Thus, after applying Level I for the right ear and Level VI for the left ear to Table VII, 38 C.F.R. § 4.85, these results equate to a noncompensable rating under DC 6100. In August 2013, the Veteran presented for an audiology examination, the results of which are displayed in the table below: August 2013 HERTZ   1000 2000 3000 4000 Avg CNC RIGHT 50 50 55 55 52.5 60% LEFT 80 75 75 75 76.25 56% Applying the results to Table VI, the findings yield a numeric designation of Level VI in the right ear and VIII in the left ear. The Veteran’s left ear presents an exceptional pattern of hearing impairment and warrants a rating of VI under Table VIA. See 38 C.F.R. § 4.86(a). The higher of the two evaluations for the left ear will be used. Because the service-connected left ear does not reach the Level of X or XI, the nonservice-connected right ear can only be rated at Level I. See 38 U.S.C. § 1160(a)(3); 38 C.F.R. §§ 3.383(a)(3), 4.85(f). Thus, after applying Level I for the right ear and Level VIII for the left ear to Table VII, 38 C.F.R. § 4.85, these results equate to a noncompensable rating under DC 6100. In September 2019, the Veteran presented for an audiology examination, the results of which are displayed in the table below: Sept. 2019 HERTZ   1000 2000 3000 4000 Avg CNC RIGHT 40 60 60 60 55 76% LEFT 75 75 80 80 78 48% Applying the results to Table VI, the findings yield a numeric designation of Level IV in the right ear and IX in the left ear. The Veteran’s left ear presents an exceptional pattern of hearing impairment and warrants a rating of VII under Table VIA. See 38 C.F.R. § 4.86(a). The higher of the two evaluations for the left ear will be used. Because the service-connected left ear does not reach the Level of X or XI, the nonservice-connected right ear can only be rated at Level I. See 38 U.S.C. § 1160(a)(3); 38 C.F.R. §§ 3.383(a)(3), 4.85(f). Thus, after applying Level I for the right ear and Level IX for the left ear to Table VII, 38 C.F.R. § 4.85, these results equate to a noncompensable rating under DC 6100. On September 2020, the Veteran presented for an audiology examination, the results of which are displayed in the table below: Sept. 2020 HERTZ   1000 2000 3000 4000 Avg CNC RIGHT 60 70 70 65 66.25 64% LEFT 90 90 80 75 83.75 24% Applying the results to Table VI, the findings yield a numeric designation of Level VII in the right ear and XI in the left ear. The Veteran’s right and left ears present exceptional patterns of hearing impairment and warrant a rating of V for the right ear and a rating of VII for the left ear under Table VIA. See 38 C.F.R. § 4.86(a). The higher of the two evaluations for each ear will be used. Because the service-connected left ear reaches the Level of XI, the nonservice-connected right ear can be rated at Level VII. See 38 U.S.C. § 1160(a)(3); 38 C.F.R. §§ 3.383(a)(3), 4.85(f). Thus, after applying Level VII for the right ear and Level XI for the left ear to Table VII, 38 C.F.R. § 4.85, these results equate to a rating of 60 percent under DC 6100. The Veteran is currently in receipt of a 60 percent rating for hearing loss effective September 2, 2020, the date of this examination. See September 2020 rating decision. The September 2020 examination is the first time that the Veteran’s hearing impairment in both ears manifested a compensable rating. Thus, establishing the effective date as the date of examination is not arbitrary, as the Veteran’s representative asserts. Rather, it represents the first instance that a compensable rating is factually ascertainable using objective evidence and application of 38 C.F.R. § 3.383(a)(3). A higher evaluation prior to September 2, 2020, is not warranted because a higher evaluation requires an objective finding of an increase in disability, and as detailed above, all examinations that occurred throughout and even slightly before the appeal period, other than the September 2020 examination, showed disability levels consistent with a noncompensable rating. There are several private audiology examinations of record; however, they are inadequate for rating purposes for various reasons. 38 C.F.R. §§ 4.85, 4.86. A December 2013 private audiology examination did not provide a speech discrimination percentage for the left ear. Thus, this examination cannot be used for rating purposes, even though the Maryland CNC word list for speech discrimination testing was employed in the right ear. See August 2017 Hearing transcript at 3-4; December 2013 patient report audiologic evaluation. The results of an April 2014 VA examination were invalid for rating purposes, as the examiner indicated that pure tone thresholds could not be tested. Additional private audiological examinations were performed in November 2019, May 2018, June 2016, June 2014, and September 2013; however, these examinations cannot be used for rating purposes as they either did not indicate which word list they used or, in the case of the June 2014 examination, did not use the Maryland CNC word list. As the RO’s multiple attempts to determine which word lists were used were unsuccessful, the Board finds that further efforts to obtain this information would be futile. See May 2020 Third Party Correspondence; April 2020 Initial Private Third Party Letter. Finally, the Board notes that the VA examiners in April 2009 (cannot hear comments on the firing range when qualifying for small arms working as a deputy sheriff), September 2009 (difficulty hearing or understanding, difficulty with speech at a distance and in background noise), August 2013 (difficulty hearing or understanding, difficulty with speech at a distance and in background noise, and on the telephone, difficulty hearing television), September 2019 (everything is difficult to hear, his spouse has to come with him to translate, people have to repeat what they say and I still do not understand them), and September 2020 (difficulty hearing clearly in back ground noise, asking speakers to repeat and need for increased volume on devices) also noted the functional impact of the Veteran’s bilateral sensorineural hearing loss. Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). S. BUSH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. deBruyn, 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.