Citation Nr: 21015370 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 18-21 284 DATE: March 17, 2021 ORDER Entitlement to an initial compensable rating for a bilateral hearing loss disability prior to December 31, 2020 is denied. Entitlement to an increased rating in excess of 30 percent, for a bilateral hearing loss disability from December 31, 2020 is denied. FINDINGS OF FACT 1. Prior to December 31, 2020, the Veteran had no worse than a level I hearing loss for both the right and left ear. 2. From December 31, 2020, the Veteran had no worse than a level V hearing loss for the right ear and a level VII hearing loss for the left ear. CONCLUSIONS OF LAW 1. Prior to December 31, 2020, the criteria for an initial compensable rating for a bilateral hearing loss disability have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100. 2. From December 31, 2020, the criteria for an increased rating in excess of 30 percent for a bilateral hearing loss disability have not been met. 38 U.S.C. § 1155; 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 Navy from November 1964 to September 1967. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a September 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In October 2019, the Veteran testified before the undersigned Veterans Law Judge during a Board video conference hearing. The Board notes that the Veteran’s claim for an initial compensable rating for his bilateral hearing disability was previously before the Board in August 2020. However, the matter was remanded for to obtain a new VA examination to determine the current severity of his bilateral hearing loss disability. In a January 2021 supplemental statement of the case (SSOC), the RO granted an increased rating of 30 percent effective from December 31, 2020. As this is not a full grant of the issue on appeal, the Veteran’s claim remains on appeal and is again before the Board for adjudication. Increased Rating The Veteran seeks an initial compensable rating prior to December 31, 2020 and an increased rating in excess of 30 percent thereafter. Specifically, during an October 2019 Board hearing, the Veteran testified that he cannot hear and that his hearing is getting worse. Disability evaluations are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. 38 C.F.R. Part 4. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran’s condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where, entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). 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). Here, the Board notes that the Veteran initially sought an initial compensable rating for his bilateral hearing loss disability. During the pendency of the appeal, the RO granted a 30 percent, effective December 31, 2020. In this regard, the Board finds that the staged ratings are appropriate for the Veteran’s bilateral hearing disability and will be discussed below. Evaluations of defective hearing range from 0 to 100 percent. This is based on impairment of hearing acuity as measured by the results of controlled speech discrimination tests, together with the average hearing threshold level as measured by pure tone audiometric tests in the frequencies of 1000, 2000, 3000, and 4000 Hertz. To evaluate the degree of disability from service-connected hearing loss, the rating schedule establishes eleven auditory acuity levels ranging from numeric level I for essentially normal acuity, through numeric level XI for profound deafness. 38 C.F.R. § 4.85, Tables VI and VII, Diagnostic Code 6100. Table VI in 38 C.F.R. § 4.85 is used to determine the numeric designation of hearing impairment based on the pure tone threshold average from the speech audiometry test and the results of the Maryland CNC speech discrimination test. The vertical lines in Table VI represent nine categories of the percentage of discrimination based on the controlled speech discrimination test. The horizontal columns in Table VI represent nine categories of decibel loss based on the puretone audiometry test. The numeric designation of impaired hearing (Levels I through XI) is determined for each ear by intersecting the vertical row corresponding to the percentage of discrimination and the horizontal column corresponding to the puretone decibel loss. The percentage evaluation is derived from Table VII in 38 C.F.R. § 4.85 by intersecting the vertical column corresponding to the numeric designation for the ear having the better hearing acuity and the horizontal row corresponding to the numeric designation level for the ear having the poorer hearing acuity. The ratings for disability compensation for hearing loss are determined by the mechanical, meaning non-discretionary, application of the above criteria. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). 1. Entitlement to an initial compensable rating for a bilateral hearing loss disability prior to December 31, 2020 is denied. Upon review of the evidence prior to December 31, 2020, the preponderance of the evidence does not reflect that an initial compensable rating is warranted for his bilateral hearing loss disability. The Veteran’s initial VA examination on August 2015 shows his puretone thresholds for the right ear, in dB, were 25dB at 1000Hz; 30dB at 2000Hz; 55dB at 3000Hz; and 65dB at 4000Hz, with an average of 44dB. Puretone thresholds for the left ear, in dB, were 25dB at 1000Hz; 35dB at 2000Hz; 60dB at 3000Hz; and 65dB at 4000Hz, with an average of 46dB. Speech discrimination scores revealed speech recognition ability of 98 percent for the right and 96 percent for the left ear. Applying his average dB and speech discrimination scores to Table VI, both his right and left ear yields a level I hearing loss. As both, the right and left ear, yields the same level of hearing loss, there is no poorer or better ear to be distinguished. Applying these results to Table VII, a Level I for the right ear combined with a Level I for the left ear results in a non-compensable rating for his right ear hearing loss disability. The Board acknowledge that the Veteran submitted private treatment records in October 2019 reflecting audiological examinations conducted in May 2016 and September 2019. However, in August 2020 decision, the Board found that these private audiological examinations were invalid for determining the severity of his bilateral hearing loss disability because it was unclear what speech recognition was utilized. Aside from the August 2015 VA examination and private treatment records, there are no further evidence indicating that his bilateral hearing loss, prior to December 31, 2020, would result in a higher disability rating. As there is no evidence that the August 2015 VA examination reports are inadequate, the Board affords the most probative weight to the August 2015 VA examination. Accordingly, the Board finds that the preponderance of the evidence is against assigning an initial compensable rating for the Veteran’s bilateral hearing loss disability prior to December 31, 2020. Therefore, his claim must be denied. 2. Entitlement to a rating in excess of 30 percent for a bilateral hearing loss disability from December 31, 2020 is denied. Upon review of the evidence for the period beginning on December 31, 2020, the medical evidence supports a rating of 30 percent as was recognized by the Regional Office in its January 2021 SSOC; however, a rating in excess of 30 percent is denied. Following the Board’s remand in August 2020, the Veteran was provided with a VA examination on December 31, 2020. That VA examination shows his puretone thresholds for the right ear, in dB, were 30dB at 1000Hz; 55dB at 2000Hz; 75dB at 3000Hz; and 80dB at 4000Hz, with an average of 60dB. Puretone thresholds for the left ear, in dB, were 45dB at 1000Hz; 60dB at 2000Hz; 75dB at 3000Hz; and 85dB at 4000Hz, with an average of 66dB. Speech discrimination scores revealed speech recognition ability of 72 percent in the right ear and 64 percent in the left ear. Applying his average dB and speech discrimination scores to Table VI, his right ear yields a level V hearing loss and his left ear yields a level VII hearing loss. For rating purposes under Table VII, his right ear is considered to be the better ear and his left ear is the poorer ear. Applying these results to Table VII, a Level VII for the left ear (the poorer ear) combined with a Level V for the right ear, results in a 30 percent rating for his bilateral hearing loss disability. The Board has considered the Veteran’s lay statements that his hearing is getting worse. However, as provided in Lendenmann, ratings for disability compensation for hearing loss are determined by the mechanical, meaning non-discretionary, application of the above criteria. 3 Vet. App. 345, 349 (1992). In this regard, the only available medical evidence during this period warrants a 30 percent disability rating. The Board has further considered whether the Veteran is entitled to a higher rating under C.F.R. § 4.86. However, the available audiological examination does not show that he has an exceptional pattern of hearing impairment. To the extent that the Veteran takes issue with the rating criteria themselves, the rating criteria specifically provide for ratings based on all levels of hearing loss, including exceptional hearing patterns, see 38 C.F.R. § 4.86 (2018), as measured by both audiometric testing and speech recognition testing. See Doucette v. Shulkin, 28 Vet. App. 366, 369 (2017) (holding “that the rating criteria for hearing loss contemplate the functional effects of decreased hearing and difficulty understanding speech in an everyday work environment”). (Continued on the next page)   As there is no evidence to the contrary, the Board finds that from December 31, 2020, a rating in excess of 30 percent for service-connected bilateral hearing loss disability is not warranted. M. Tenner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Xiong, 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.