Citation Nr: 21013331 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 15-45 113 DATE: March 9, 2021 ORDER From May 15, 2013 to May 4, 2016, a rating of 20 percent for bilateral hearing loss is granted. Entitlement to a rating in excess of 20 percent from May 15, 2013 to October 4, 2019 and in excess of 30 percent thereafter for bilateral hearing loss is denied. FINDINGS OF FACT 1. From May 15, 2013 to October 4, 2019, the Veteran’s bilateral hearing loss was manifested by no more than no worse than Level VI hearing impairment in the right ear and Level IV hearing impairment in the left ear. 2. From October 4, 2019, the Veteran’s bilateral hearing loss was manifested by no worse than Level VI hearing impairment in the right ear and Level VII hearing impairment in the left ear. CONCLUSIONS OF LAW 1. The criteria for a 20 percent disability rating for bilateral hearing loss are met from May 15, 2013 to May 4, 2016. 38 U.S.C. §§ 1155 , 5107(b); 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100. 2. The criteria for a rating in excess of 20 percent prior to October 4, 2019 and in excess of 30 percent thereafter for bilateral hearing loss, are not met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from June 1969 to June 1971, to include service in the Republic of Vietnam. His decorations include the Combat Infantryman Badge. This matter comes to the Board of Veteran’s Appeals (Board) on appeal from a February 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO), which continued a noncompensable rating for the Veteran’s bilateral hearing loss. A June 2016 rating decision increased the rating for bilateral hearing loss to 20 percent, effective May 5, 2016. In August 2018, the Board remanded the appeal for additional development. In December 2019, the RO further increased the rating for bilateral hearing loss to 30 percent, effective October 4, 2019. In February and July 2020, the Board remanded the appeal, pursuant to Stegall v. West, 11 Vet. App. 268 (1998), to obtain an outstanding relevant July 2014 audiogram, which has since been secured. Increased Ratings: General Principles Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person’s ordinary activity. 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings.” Hart v. Mansfield, 21 Vet. App. 505 (2007). Increased Rating: Bilateral Hearing Loss As noted above, the Veteran is in receipt of a noncompensable rating from June 23, 2006; a 20 percent rating from May 5, 2016; and a 30 percent rating from October 4, 2019. The period on appeal is from May 15, 2013, the date that VA received the Veteran’s increased rating claim, plus the one-year “look back” period. Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010). Hearing loss is evaluated under the criteria set forth in the VA Schedule for Rating Disabilities. VA disability compensation for impaired hearing is derived from the application in sequence of two tables. See 38 C.F.R. § 4.85, Table VI, Table VII. Table VI correlates the average pure tone sensitivity threshold (derived from the sum of the 1000, 2000, 3000, and 4000-hertz thresholds divided by four) with the ability to discriminate speech, providing a Roman numeral to represent the correlation. Each Roman numeral corresponds to a range of thresholds (in decibels) and of speech discriminations (in percentages). Level I represents essentially normal acuity, and numeric level XI represents profound deafness. The table is applied separately for each ear to derive the values used in Table VII. Table VII prescribes the disability rating based on the relationship between the values for each ear derived from Table VI. See 38 C.F.R. § 4.85. In cases involving exceptional patterns of hearing impairment, defined as where the pure tone sensitivity threshold is equal to or greater than 55 decibels at each of 1000, 2000, 3000, and 4000-hertz, then the veteran’s hearing threshold is also applied to Table VIA, which provides a numeric designation of hearing impairment based solely upon pure tone threshold average. For each ear with an exceptional pattern of hearing impairment, the more favorable (i.e., greater) numeric designator from either Table VI or Table VIA is then applied to Table VII. See 38 C.F.R. § 4.86. 1. From May 15, 2013 to May 4, 2016, a rating of 20 percent for bilateral hearing loss is granted. 2. Entitlement to a rating in excess of 20 percent from May 15, 2013 to October 4, 2019 and in excess of 30 percent thereafter for bilateral hearing loss is denied. The Veteran asserts that his hearing is worse than previously rated. The Board initially notes that the Veteran was scheduled to appear at a VA examination in February 2014 in response to his May 2013 claim for an increased bilateral hearing loss, but failed to report for that examination. However, he asserted in his June 2014 Notice of Disagreement (NOD) that he failed to report to his scheduled appointment because he never received notice of the same, noting that VA had an incorrect mailing address and providing his current address of record. The Board will not prejudice the Veteran in this regard, and will apply the findings of the subsequent May 2016 VA examination to the beginning of the appeal period. Additionally, the Board notes that the July 2014 VA audiogram obtained pursuant to the Board’s prior remand directives may not be employed to rate the Veteran’s hearing loss, as it does not employ the Maryland CNC speech recognition test but instead the CIDW-22 word test. See 38 C.F.R. § 4.85(a). The May 2016 examination report demonstrates right ear hearing thresholds of 55 decibels at 1000 hertz, 65 decibels at 2000 hertz, 85 decibels at 3000 hertz, and 90 decibels at 4000 hertz, with an average of 74 hertz and 72 percent speech discrimination. Left ear hearing thresholds were 50 decibels at 1000 hertz, 60 decibels at 2000 hertz, 80 decibels at 3000 hertz, and 90 decibels at 4000 hertz, with an average of 70 hertz and 78 percent speech discrimination. The right ear displayed an exceptional pattern of hearing loss as defined by 38 C.F.R. § 4.86(a), as the puretone threshold at each of the four specified frequencies was 55 or greater. Therefore, the Veteran’s right ear for hearing loss shall be assessed under both Table VI and Table VIa to determine which yields the highest numeral; however, both tables establish level VI hearing acuity in the right ear. The combination of level VI for the Veteran’s right ear and level IV for the Veteran’s left ear results in a 20 percent disability rating, but no higher, for the Veteran’s bilateral hearing loss under Table VII. Accordingly, a 20 percent rating is warranted from May 15, 2013. The Veteran was afforded another VA examination in October 2019. The examination report shows right ear hearing thresholds of 60 decibels at 1000 hertz, 75 decibels at 2000 hertz, 85 decibels at 3000 hertz, and 90 decibels at 4000 hertz, with 96 percent speech discrimination. See October 2019 VA Audiology Examination Report. The examination report shows left ear hearing thresholds of 60 decibels at 1000 hertz, 75 decibels at 2000 hertz, 85 decibels at 3000 hertz, and 90 decibels at 4000 hertz, with 96 percent speech discrimination. Id. The Veteran had an average sensitivity threshold of 76 decibels for the right ear and 78 decibels for the left ear. Id. Both ears displayed an exceptional pattern of hearing loss as defined by 38 C.F.R. § 4.86(a) as the puretone threshold at each of the four specified frequencies was 55 or greater. Therefore, both of the Veteran’s bilateral ears for hearing loss shall be assessed under both Table VI and Table VIa to determine which yielded the highest numeral. Under Table VI, the Veteran’s right ear hearing loss corresponds to level II and under Table VIA, it corresponds to level VI. Under Table VI, the Veteran’s left ear hearing loss results in level II and under Table VIA, it results in level VII. Table VIa yields the highest numeral, thus for rating purposes, the Veteran’s right ear hearing loss results in level VI hearing acuity, and the Veteran’s left ear results in level VII. The combination of level VI for the Veteran’s right ear and level VII for the Veteran’s left ear results in a 30 percent disability rating, but no higher, for the Veteran’s bilateral hearing loss under Table VII from October 4, 2019. The Veteran has not undergone any other VA-compliant hearing examinations for this appeal period. He is competent to report the symptoms and history of his hearing loss. However, he is not competent to determine whether his hearing loss constitutes a compensable hearing disability for VA purposes as it is determined by a mechanical application of the definition found in 38 C.F.R. § 4.85 to audiometric (pure tone threshold and Maryland CNC) testing results. Finally, the Board notes that both the May 2016 and October 2019 VA examiners noted the functional impact of the Veteran’s bilateral sensorineural hearing loss (difficulty hearing and understanding conversation, in groups, at a distance, and one-on-one, and without hearing aids). Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). However, as noted above, the assignment of disability ratings for hearing impairment are derived by a mechanical application of audiometric evaluation results to the rating schedule. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). S. BUSH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. J. Rogers, 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.