Citation Nr: 21014799 Decision Date: 03/15/21 Archive Date: 03/15/21 DOCKET NO. 16-20 971 DATE: March 15, 2021 ORDER Entitlement to a compensable initial rating for bilateral hearing loss prior to December 5, 2016, for substitution purposes is denied. Entitlement to an initial rating in excess of 20 percent for bilateral hearing loss from December 5, 2016 to March [REDACTED], 2020, for substitution purposes is denied. FINDINGS OF FACT 1. Prior to December 5, 2016, audiological testing compliant with 38 C.F.R. § 4.85 shows no worse than Level II hearing in the right ear and Level IV hearing in the left ear. 2. From December 5, 2016 to March [REDACTED], 2020, the Veteran’s hearing loss is manifest with no worse than a Level IV hearing loss in the right ear and a Level V in the left ear. CONCLUSIONS OF LAW 1. The criteria for an initial compensable rating for bilateral hearing loss disability rating prior to December 5, 2016, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.85(c), Diagnostic Code 6100. 2. From December 5, 2016 to March [REDACTED], 2020, the criteria to establish a rating in excess of 20 percent for bilateral hearing loss disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.85(c), Diagnostic Code 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from August 1955 to August 1959. By way of history, this matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. In a December 2016 rating decision, the Agency of Original Jurisdiction (AOJ) increased the initial evaluation assigned for the Veteran’s service-connected bilateral hearing loss from zero percent to 20 percent, effective from December 5, 2016. As this partial allowance did not represent a full grant of the benefits sought, the issue remained on appeal and was recharacterized to reflect the “staged” initial evaluation. Hart v. Mansfield, 21 Vet. App. 505 (2007); AB v. Brown, 6 Vet. App. 35, 38-39 (1993). In June 20-17 and October 2019, the Board remanded the Veteran’s appeal to ensure that VA fulfilled its duty to assist the Veteran in substantiating his appeal. As will be discussed below, the Board concludes that the prior remand directives have been substantially completed. See Stegall v. West, 11 Vet. App. 268 (1998). Unfortunately, the Veteran died on March [REDACTED], 2020. In October 2020, the Veteran’s spouse filed a claim for accrued benefits which was accepted as a request for substitution. The request for substitution was approved in November 2020. 38 U.S.C. § 5121A; 38 C.F.R. § 3.1010 (b). Therefore, the Board has jurisdiction to readjudicate the merits of this appeal with the Appellant stepping into the Veteran’s position. 38 U.S.C. § 7104 (a); 38 C.F.R. § 20.1302. Increased Ratings and Hearing Loss Ratings for service-connected disabilities are determined by comparing the veteran’s symptoms with criteria listed in VA’s Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. Separate diagnostic codes identify the various disabilities.38 C.F.R. Part 4. When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski,1Vet. App.589 (1991). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38C.F.R. § 4.7. The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield,21Vet. App.505 (2007). Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. See 38 C.F.R. § 4.3. Hearing loss ratings are determined by a mechanical application of the rating schedule to the numeric designations assigned based on audiometric test results. Lendenmann v. Principi, 3Vet. App.345 (1992). Ratings of defective hearing are based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination testing together with the average hearing threshold level as measured by pure tone audiometry tests in the frequencies 1000, 2000, 3000 and 4000 Hertz. 38 C.F.R. § 4.85. Once these test results have been obtained, employing Table VI, a Roman numeral designation of auditory acuity level for hearing impairment is ascertained based on a combination of the percent of speech discrimination and pure tone threshold average. Once a Roman numeral designation of auditory acuity level for each ear has been determined, Table VII is used to determine the percentage evaluation for hearing loss by combining the Roman numeral designations of auditory acuity level for hearing impairment of each ear. 38 C.F.R. §4.85. An alternative method of rating hearing loss in defined for instances of exceptional hearing loss. In such exceptional cases, the Roman numeral designation for hearing loss of an ear may be based only on pure tone threshold average, using Table VIA, or from Table VI, whichever results in the higher Roman numeral. Exceptional hearing loss exists when the pure tone threshold at the frequencies of 1000, 2000, 3000, and 4000 Hertz is 55 decibels or more; or where the pure tone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz. The higher Roman numeral, determined from Table VI or VIA, will then be elevated to the next higher Roman numeral. Each ear is evaluated separately. 38C.F.R. §4.86. If pure tone thresholds at each specified frequency of 1000, 2000, 3000 and 4000 Hertz is 55 decibels or more, the Roman numeral designation for hearing impairment will be determined from either Table VI or Table VIA, whichever results in the higher numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86. Table VIA can also be used when the examiner certifies that use of the speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc. 38 C.F.R. § 4.85(c). 1. Entitlement to an increased initial rating for bilateral hearing loss, currently evaluated noncompensably disabling prior to December 5, 2016, and 20 percent disabling, thereafter The Appellant contends that the Veteran’s hearing was much worse than the non-compensable rating initially assigned. See September 2019 Informal Hearing Brief; see also May 2017 Informal Hearing Presentation Brief. In February 2015, the Veteran was afforded a VA examination to determine the nature and etiology of his bilateral hearing loss. See February 2015 Audiology Examination. The Veteran’s Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 30 40 50 60 45 84 LEFT 20 40 55 60 43.75 68 The Board notes that when the results are applied to Table VI results in right ear is at worst a Level II, and the left ear is at worst a Level IV. Pursuant to Table VII, the Board finds that this corresponds with a 0 percent rating. An April 2015 VA audiology visit documented that the Veteran’s hearing loss had worsened, as per the Appellant’s assertions. See Fort Snelling VA Clinic, April 13, 2015 Audiogram. The Board observes that, although the existence of this audiogram was noted, the actual testing results were not associated with the record for review until December 2020. While the audiogram was represented in graphical form, the Board, as the finder of fact, may interpret such. Kelly v. Brown, 7 Vet. App. 471 (1995). The puretone threshold, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 30 40 55 60 46.25 not recorded LEFT 25 40 55 65 48.75 not recorded As noted by the AOJ in a January 2021 rating decision, this audiogram provides limited probative weight because Maryland CNC test scores (if completed) were not recorded. To this point, the Board notes that the Veteran was admitted to a hospital in October 2014 due to an intracranial hemorrhage, intracerebral hemorrhage and seizure after a fall. See November 2014 United Hospital Record, Courage Kenny Rehabilitation Institute Physical Medicine and Rehabilitation Consultation note. The record indicates that the Veteran was experiencing intermittent periods of confusion, left hemiparesis and an inability to follow directions without repetition and was referred to speech pathology. See November 3, 2014 United Hospital Record, Speech Pathology Consult Notation. The Board recognizes that “in some circumstances, VA does have a duty to return for clarification unclear or insufficient private examination reports or progress notes, or the Board must explain why such clarification is not necessary.” Savage v. Shinseki, 24 Vet. App. 259, 260 (2011). However, in this case, the record clearly indicates that after an intracerebral hemorrhage the Veteran was having issues with speech, cognition and impaired judgment. Thus, the Board finds that this provides clarification why Maryland CNC was not included. The Board finds that as the audiological testing relevant to the Veteran’s claim were not associated with the claims file in a matter in which retesting cannot be performed. See Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Consequently, the Board performs a “critical examination” of the evidence in the record at hand. See id. (citing Fletcher v. Derwinski, 1 Vet. App. 394, 397 (1991)). On December 5, 2016 the Veteran was afforded a new VA audiology examination. The Veteran’s Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 35 55 65 75 58 72 LEFT 45 55 75 80 64 60 When the results are applied to Table VI results in right ear is at worst a Level V, and the left ear is at worst a Level VI. Pursuant to Table VII, the Board finds that this corresponds to an increase to a 20 percent rating and demonstrates that the Veteran’s hearing acuity and speech recognition had dramatically worsened. The Board has considered the lay statements of the Veteran and the Appellant as to the severity of his hearing loss during the appeal period, as well as the assignment of disability ratings for hearing impairment is derived from a mechanical formula based on levels of pure tone threshold average and speech discrimination. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). The Board finds that the audiological findings discussed above correspond to the Veteran’s lay contention that his hearing had worsened. The Board observes that, effective June 10, 1999, exceptional patterns of hearing impairment, which cannot always be accurately assessed under the standards of 38 C.F.R. § 4.85, may be evaluated under the provisions of 38 C.F.R. § 4.86. However, the audiological testing completed during the appeal period does not reflect that the Veteran demonstrated decibel losses meeting the criteria for exceptional patterns of hearing impairment, and thus, 38 C.F.R. § 4.86 is not for application. (Continued on the next page)   Considering the preponderance of the probative evidence of record, as summarized above, the evidence does not support a finding that a rating in excess of zero percent prior to December 5, 2016, and/or greater than 20 percent after December 5, 2016, is warranted. Absent a relative balance of the evidence, the evidence is not in equipoise and the benefit-of-the-doubt doctrine does not apply. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The claim for an increased rating in excess of 20 percent from December 5, 2015 to March [REDACTED], 2020 must be denied. SCOTT W. DALE Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. McKenzie, 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.