Citation Nr: 21015476 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 10-48 390 DATE: March 17, 2021 ORDER Entitlement to an evaluation of 10 percent, but no higher, for service-connected bilateral hearing loss effective August 13, 2009 until December 17, 2020, is granted. Entitlement to an evaluation in excess of 20 percent effective December 17, 2020 for service-connected bilateral hearing loss is denied. FINDINGS OF FACT 1. From August 13, 2009 to December 17, 2020, the results of the audiological evaluations have indicated that Veteran has no worse than Level V hearing loss in the right ear and Level II hearing loss in the left ear. 2. From December 17, 2020, the results of the audiological evaluations have indicated the Veteran has no worse than Level VI hearing loss in the right ear and Level IV hearing loss in the left ear. CONCLUSIONS OF LAW 1. From August 13, 2009 to December 17, 2020, the criteria for a rating of 10 percent, but no higher, for bilateral hearing loss have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.85, 4.86, DC 6100. 2. Since December 17, 2020, the criteria for a rating in excess of 20 percent for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.85, 4.86, DC 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from June 1978 to March 1995. This matter is before the Board of Veterans’ Appeals (Board) on appeal of a March 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). This case has been remanded numerous times, most recently in October 2020. Subsequently, the RO granted a 20 percent rating effective December 17, 2020 for the Veteran’s service-connected bilateral hearing loss. Both time periods remain on appeal. Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. In cases in which a claim for a higher initial evaluation stems from an initial grant of service connection for the disability at issue, multiple (“staged”) ratings may be assigned for different periods of time during the pendency of the appeal. See generally Fenderson v. West, 12 Vet. App. 119 (1999). 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. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings. See Francisco v. Brown, 7 Vet. App. 55 (1994); 38 C.F.R. § 4.2. Staged ratings are, however, appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. See generally Hart v. Mansfield, 21 Vet. App. 505 (2007). 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. See 38 C.F.R. § 4.7. The assigned evaluations for hearing loss are determined mechanically, so nondiscretionarily, applying the rating criteria to certified test results. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Hearing loss ratings range from noncompensable to 100 percent based on organic impairment of hearing acuity, as measured by controlled speech discrimination tests in conjunction with average hearing thresholds determined by puretone audiometric testing at frequencies of 1000, 2000, 3000 and 4000 cycles per second. “Puretone threshold average” is the sum of the puretone thresholds at 1000, 2000, 3000 and 4000 Hertz divided by four. This average is used in all cases (including those in § 4.86) to determine the Roman numeral designation for hearing impairment from Table VI or VIA. 38 C.F.R. § 4.85, Diagnostic Code 6100. An exceptional pattern of hearing impairment occurs when the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more. 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. 38 C.F.R. § 4.86(a). Further, when the average puretone 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. That numeral will then be elevated to the next higher Roman numeral. 38 C.F.R. § 4.86(b). Each ear is considered separately. 38 C.F.R. § 4.86. Of note, typically, VA audiological examiners are instructed not to record puretone threshold evaluations higher than 105 decibels, and 105 decibels is the maximum numerical value used when calculating a veteran’s puretone threshold average. However, the Board notes that 38 C.F.R. § 4.85 does not specify that when reported upon examination, audiological findings above 105 decibels for pure tone thresholds cannot be used. 1. Prior to December 17, 2020 The Veteran was assigned a noncompensable disability rating for this period on appeal. Based on the reasoning below, the Board finds a 10 percent rating is warranted for this period on appeal. The Veteran has undergone numerous audiological examinations during the appeals period. The Board notes the Veteran filed a claim received on August 13, 2009 for an increased rating for his bilateral hearing loss. As such, the Board will consider evidence submitted within the one year prior to his filing of the claim, August 13, 2008. As such, the first audiological evaluation was from June 2009. This VA evaluation shows that puretone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Avg RIGHT 20 70 70 65 56.25 LEFT 25 20 50 75 42.50 The Board notes based upon the findings reported above, that the Veteran meets the criteria for exceptional hearing loss in that the puretone threshold at 1000 hertz is 30 decibels or less and 70 decibels or more at 2000 hertz. The Roman numeral designation for hearing impairment may be taken from either Table VI or Table VIA, whichever results in the higher numeral. In this case, the audiograms do not indicate that they contain the results of a Maryland CNC speech discrimination test. As such, puretone results, only, will be used to determine the Veteran’s hearing impairment. Using Table VIA for the right ear, based upon puretone results only, the Veteran was shown to have Level IV. Using Table VIA for the left ear, the Veteran was shown to have a Level II hearing. The Board notes that further elevation of these numerals is sanctioned for this particular hearing pattern under 38 C.F.R. § 4.86(b), which codes allow elevation to the next higher Roman numeral for the right ear. Therefore, the Veteran’s right ear is a Level V. The hearing loss rating found when using the Table VIA numerals are fully consistent with a 10 percent evaluation. An August 2009 VA audiological report shows that puretone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Avg RIGHT 20 70 70 70 57.5 LEFT 25 20 55 75 43.75 Speech audiometry testing revealed speech recognition scores of 92 in the right ear and 92 in the left ear. Using Table VI, the right ear is a Level II and the left ear is a Level I. The Veteran’s right ear would become a Level III under 38 C.F.R. § 4.86(b) due to the exceptional patterns of the right ear hearing impairment. Exceptional patterns of hearing impairment are in effect for the right ear, using Table VIA, Level V for the right ear and Level II for the left ear. This includes the elevation for the right ear under 38 C.F.R. § 4.86(b) and results in a 10 percent evaluation. The December 2012 VA audiological report shows that puretone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Avg RIGHT 20 70 70 70 57.5 LEFT 25 25 60 75 46.25 Speech audiometry testing revealed speech recognition scores of 92 in the right ear and 92 in the left ear. Using Table VI, the right ear is a Level II and the left ear is a Level I. The Veteran’s right ear would become a Level III under 38 C.F.R. § 4.86(b) due to the exceptional patterns of the right ear hearing impairment. Exceptional patterns of hearing impairment are in effect for the right ear, using Table VIA, Level V for the right ear and Level II for the left ear. This includes the elevation for the right ear under 38 C.F.R. § 4.86(b) and results in a 10 percent evaluation. Lastly, the January 2015 VA audiological report shows that puretone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Avg RIGHT 30 75 70 75 62.5 LEFT 20 20 65 75 45 Speech audiometry testing revealed speech recognition scores of 92 in the right ear and 92 in the left ear. Using Table VI, the right ear is a Level II and the left ear is a Level I. The Veteran’s right ear would become a Level III under 38 C.F.R. § 4.86(b) due to the exceptional patterns of the right ear hearing impairment. Exceptional patterns of hearing impairment are in effect, using Table VIA, Level VI for the right ear and Level II for the left ear. This includes the elevation for the right ear under 38 C.F.R. § 4.86(b) and results in a 10 percent evaluation. The Board acknowledges the Veteran’s contention is that his hearing loss disability is worse than is reflected by the currently assigned disability ratings. However, as noted above, the rating of hearing loss disability involves the mechanical application of the rating schedule to numeric designations assigned to official audiometric results. See Lendenmann, 3 Vet. App. at 345. The results from the audiological examinations during this time period have not shown that the evaluation of the Veteran’s hearing loss has exceeded a 10 percent disability rating under Table VII. See 38 C.F.R. § 4.85. Thus, during this period, the claim is granted to this extent only. 2. Effective December 17, 2020 The Veteran has been assigned a 20 percent disability rating for this period on appeal. The Veteran was afforded a VA examination on December 17, 2020. There, the puretone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Avg RIGHT 25 75 75 80 63.75 LEFT 25 25 70 80 50 Speech audiometry testing revealed speech recognition scores of 68 in the right ear and 76 in the left ear. Here, the exceptional patterns of hearing impairment are in effect; as such, the Roman numeral designation for hearing impairment may be taken from either Table VI or Table VIA, whichever results in the higher numeral. Using Table VI, Level V hearing was demonstrated for the right ear. Using Table VI, Level IV hearing was demonstrated for the left ear. Using Table VIA for the right ear, based upon puretone results only, the Veteran was shown to have Level V hearing. Using Table VIA for the left ear, the Veteran was shown to have to Level III hearing. The Board notes that further elevation of these numerals is sanctioned for this particular hearing pattern under 38 C.F.R. § 4.86(b), which codes allow elevation to the next higher Roman numeral for the right ear. Therefore, the Veteran’s right ear is a Level VI under both Table VI and Table VIA. The use of Table VI is more favorable to the Veteran than the use of Table VIA for both ears. Therefore, the higher numerals are found using Table VI, and those numerals will be applied and are fully consistent with a 20 percent evaluation. The VA examination was conducted in accordance with 38 C.F.R. § 4.85(a) and is highly probative. The Veteran noted his difficulties with his hearing, and the Board finds that the difficulties noted are entirely consistent with audiological evaluations shown on examination and the assigned schedular ratings. See Martinak v. Nicholson, 21 Vet. App. 447 (2007). The Veteran’s VA treatment records include a subsequent December 2020 audiological report showing that puretone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Avg RIGHT 20 75 75 75 61.25 LEFT 25 25 70 80 50 Speech audiometry testing revealed speech recognition scores of 72 in the right ear and 80 in the left ear. Here, the exceptional patterns of hearing impairment are in effect; as such, the Roman numeral designation for hearing impairment may be taken from either Table VI or Table VIA, whichever results in the higher numeral. Using Table VI, Level V hearing was demonstrated for the right ear. Using Table VI, Level IV hearing was demonstrated for the left ear. Using Table VIA for the right ear, based upon puretone results only, the Veteran was shown to have Level IV hearing. Using Table VIA for the left ear, the Veteran was shown to have to Level III hearing. The Board notes that further elevation of these numerals is sanctioned for this particular hearing pattern under 38 C.F.R. § 4.86(b), which codes allow elevation to the next higher Roman numeral for the right ear. Therefore, the Veteran’s right ear is a Level VI under Table VI and Level V under Table VIA. The use of Table VI is more favorable to the Veteran than the use of Table VIA for both ears. Therefore, the higher numerals are found using Table VI and those numerals will be applied and are fully consistent with a 20 percent evaluation. For this period on appeal, despite the Veteran’s contentions that his service-connected hearing loss warrants a higher rating, the application of the rating schedule to the audiometric findings and speech recognition test scores does not establish entitlement to a rating in excess of 20 percent even when taking into consideration the Veteran’s exceptional pattern of hearing impairment. As such, the Board finds that a preponderance of the evidence is against the Veteran’s claim for a rating in excess of 20 percent for service-connected bilateral hearing loss since December 17, 2020. 38 C.F.R. §§ 4.3, 4.7. This claim raises no other issues, including any inferred claim for a total disability rating based upon individual unemployability. See also Rice v. Shinseki, 22 Vet. App. 447 (2009); Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017). A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Glaeser, 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.