Citation Nr: 21016189 Decision Date: 03/22/21 Archive Date: 03/22/21 DOCKET NO. 12-16 081 DATE: March 22, 2021 ORDER A rating in excess of 10 percent prior to February 12, 2013, for bilateral hearing loss is denied. A rating in excess of 40 percent from February 12, 2013, to October 10, 2018, is denied. A rating of 50 percent, but no higher, from October 11, 2018, to October 28, 2019, for bilateral hearing loss is granted. A rating in excess of 50 percent for bilateral hearing loss from October 29, 2019, is denied. FINDINGS OF FACT 1. From June 23, 2011, to February 11, 2013, the Veteran’s bilateral hearing loss disability was productive of level IV hearing acuity in the right ear and level IV acuity in the left ear at its worst. 2. From February 12, 2013, to October 10, 2018, the Veteran’s bilateral hearing loss disability was productive of level VIII hearing acuity in the right ear and level VII acuity in the left ear at its worst. 3. From October 11, 2018, the Veteran’s bilateral hearing loss disability was productive of level VIII hearing acuity in the right ear and level VIII acuity in the left ear at its worst. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for bilateral hearing loss prior to February 12, 2013, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.85, 4.86, DC 6100. 2. The criteria for a rating in excess of 40 percent for bilateral hearing loss from February 12, 2013, to October 10, 2018, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.85, 4.86, DC 6100. 3. The criteria for a rating of 50 percent, but no higher, from October 11, 2018, to October 28, 2019, for bilateral hearing loss have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.85, 4.86, DC 6100. 4. The criteria for a rating in excess of 50 percent for bilateral hearing loss from October 29, 2019, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.85, 4.86, DC 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from August 1956 to August 1960. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2011 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO), which continued the 10 percent disability rating for bilateral hearing loss. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a hearing in August 2013. A copy of the transcript has been reviewed and associated with the claims file. In a February 2014 rating decision, the RO increased the rating to 40 percent for bilateral hearing loss, effective February 12, 2013. The Board denied an increased rating for the Veteran’s bilateral hearing loss in a December 2014 decision. The Veteran appealed and in an April 2017 memorandum decision issued by the US Court of Appeals for Veterans Claims (CAVC), the denial was vacated and remanded for extraschedular consideration. In a September 2017 decision, the Board again denied the increased rating claim and declined referral for extraschedular consideration. The Veteran again appealed and in a Joint Motion for Remand (JMR), the parties agreed to vacate and remand the decision for failure to notify the Veteran of his opportunity to submit additional evidence and argument and afford him 90 days to submit additional evidence. CAVC entered the Order vacating the September 2017 decision in September 2018. This matter was subsequently remanded by the Board in April 2019 and July 2020. In an April 2020 rating decision, the RO increased the rating for bilateral hearing loss to 50 percent, effective October 29, 2019. 1. Entitlement to a rating in excess of 10 percent prior to February 12, 2013, for bilateral hearing loss; 2. Entitlement to a rating in excess of 40 percent from February 12, 2013, to October 10, 2018, for bilateral hearing loss; 3. Entitlement to a rating in excess of 40 percent from October 11, 2018, to October 28, 2019, for bilateral hearing loss; 4. Entitlement to a rating in excess of 50 percent for bilateral hearing loss from October 29, 2019. Disability evaluations are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10.    In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 283 (1991).  Although the Veteran’s entire history is reviewed when assigning a disability rating pursuant to 38 C.F.R. § 4.1, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994).    Additionally, in determining the present level of a disability for any increased rating claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary.    If there is a question as to which of two evaluations should apply, the higher rating is assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is assigned.  38 C.F.R. § 4.7.    When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant.  38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Evaluations of bilateral defective hearing range from non-compensable to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests 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). To evaluate the degree of disability from bilateral service-connected defective hearing, 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, Diagnostic Codes 6100. Disability ratings for hearing loss are derived from a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing. See Lendenman v. Principi, 3 Vet. App. 345 (1992). 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. 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 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. That numeral will then be elevated to the next higher Roman numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86(b). Table VIA will be used when the examiner certifies that the use of speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc., or when indicated under the provisions of 38 C.F.R. § 4.86. 38 C.F.R. § 4.85(c). In the present case, the Veteran filed a claim in June 2011 for an increase rating for his service-connected bilateral hearing loss. He is currently assigned a 10 percent rating for his bilateral hearing loss prior to February 12, 2013, a 40 percent rating from February 12, 2013, to October 28, 2019, and a rating of 50 percent from October 29, 2019 pursuant to diagnostic code 6100. 38 C.F.R. § 4.85. June 23, 2011, to February 11, 2013 The Veteran was afforded a VA examination in July 2011. Pure tone thresholds in the right and left ears were as follows: HERTZ 1000 2000 3000 4000 RIGHT 40 65 70 70 LEFT 40 65 65 70 The pure tone average was 61 (61.25) decibels in the right ear and 60 in the left ear. Speech recognition scores using the Maryland CNC test were 76 percent in the right ear and 80 percent in the left ear. Such examination findings translate to a level IV hearing in the right ear and a level IV in the left ear. 38 C.F.R. § 4.85, Table VI, Applying Table VII, Diagnostic Code 6100, this equates to a 10 percent rating. Based on the above evidence, the exceptional patterns of hearing impairment under § 4.86 are not for application. During the examination, the Veteran reported that his hearing loss impacted the ordinary conditions of daily life and indicated that he had an increased difficulty understanding speech even when using his hearing aids. February 12, 2013, to October 10, 2018 The Veteran’s VA treatment records reveal that he reported that his ability to understand others had worsened on February 12, 2013. In June and November 2013, he complained of hearing aid problems and they were subsequently replaced. The Veteran was afforded a VA examination in December 2013. Pure tone thresholds in the right and left ears were as follows: HERTZ 1000 2000 3000 4000 RIGHT 55 75 80 80 LEFT 50 75 75 80 The pure tone average was 73 (72.5) decibels in the right ear and 70 in the left ear. Speech recognition scores using the Maryland CNC test were 52 percent in the right ear and 64 percent in the left ear. Such examination findings translate to a level VIII hearing in the right ear and a level VII in the left ear. 38 C.F.R. § 4.85, Table VI, Applying Table VII, Diagnostic Code 6100. Applying the exceptional patterns of hearing impairment under § 4.86(a) for the right ear under Table VIA, this would translate to a level VI hearing in the right ear. Thus, Table VI is more beneficial to the Veteran and such findings equate to a 40 percent rating. During the examination, the Veteran reported difficulty in hearing and understanding conversational speech. An addendum opinion was issued in April 2014. The examiner interpreted the Veteran’s audiogram in February 2013 and indicated the pure tone average for the four frequencies of 1000, 2000, 3000, and 4000 for the right ear was 62.5 and the average for the left ear was 59. Although there is no indication that this audiological examination included a controlled speech test (Maryland CNC), it does not show his hearing loss was more severe than the subsequent VA examination in December 2013. See 38 C.F.R. § 4.85. October 11, 2018, to Present On October 11, 2018, the Veteran underwent a private audiological examination. During the examination, he reported decreased hearing for more than six months. The Veteran was afforded a VA examination in October 2019. Pure tone thresholds in the right and left ears were as follows: HERTZ 1000 2000 3000 4000 RIGHT 80 85 90 95 LEFT 80 85 90 90 The pure tone average was 88 (87.5) decibels in the right ear and 86 (86.25) in the left ear. Speech recognition scores using the Maryland CNC test were 54 percent in the right ear and 52 percent in the left ear. Such examination findings translate to a level VIII hearing in the right ear and a level VIII in the left ear. 38 C.F.R. § 4.85, Table VI, Applying Table VII, Diagnostic Code 6100. Applying the exceptional patterns of hearing impairment under § 4.86 for the right ear and left ear under Table VIA, would translate to a level VIII hearing in the right ear and level VIII in the left ear. Thus, Table VI and VII produce the same results and equate to a 50 percent rating. The Veteran did not report that his hearing loss impacted ordinary conditions of daily life, including the ability to work. An addendum opinion was issued in November 2019, at which time the examiner indicated that the Veteran’s hearing loss should not be a barrier to a wide range of employment settings. However, he may have trouble working in very noisy environments, which require him to often use non-face to face communication equipment. An addendum opinion was again issued in July 2020. The examiner reviewed the October 2018 private audiogram and indicated that the pure tone average was 94 decibels in the left ear and 85 decibels in the right ear. Although there is no indication that this audiological examination included a controlled speech test (Maryland CNC), it does not show that his hearing loss would warrant a higher rating. Applying the exceptional patterns of hearing impairment under § 4.86 for the right ear and left ear under Table VIA, this would translate to a level VIII hearing in the right ear and a level IX in the left ear, which would again equate to a 50 percent disability rating. 38 C.F.R. § 4.86, Table VIA, Applying Table VII, Diagnostic Code 6100. The July 2020 examiner responded to the Veteran’s assertions that he could not hear with his hearing aids. Th examiner noted that the VA examinations were not set up for assessing speech recognition performance with hearing aids, but rather, the examinations assess the disability of the Veterans who do not or choose not to wear hearing aids. As part of the VA examination, the Veteran was presented words at several high, loud levels, which is similar to a hearing aid but not through his own hearing aids. His performance-intensity maximum was 54 percent of the words correct in the right ear and 52 percent of the words correct in the left ear. The examiner indicated that a score of this magnitude still represents fair word recognition ability given that word recognition ability can be much poorer all the way down to zero percent. The examiner further noted that the Veteran should have a score of 50 percent while wearing his hearing aids also. If not, he should have his hearing aids repaired. The examiner reiterated that treatment with hearing aids are not addressed in VA examinations. After a review of the evidence, the Board finds that a rating in excess of 10 percent for the period of February 12, 2011, to February 11, 2013, is not warranted. In this regard, the 10 percent rating is based on the July 2011 VA examination results. Based upon the audiological test results, a rating in excess of 10 percent is not warranted for this time period. The Veteran did not report a worsening of his bilateral hearing loss until February 12, 2013. Based on this report, he was afforded a VA examination in December 2013, which resulted in an increased rating for his bilateral hearing loss to 40 percent, effective February 12, 2013. Based upon the audiological test results, a rating in excess of 40 percent is not warranted during this time period. The Veteran did not report a worsening of his bilateral hearing loss again until October 11, 2018. Based upon this report, a VA examination was performed in October 2019. Moreover, an addendum opinion was issued in July 2020, at which time the examiner noted that in both the October 11, 2018, and 2019 VA examinations, the Veteran had severe to profound sensorineural hearing loss. Accordingly, the Board finds that a 50 percent disability rating, but no higher, is warranted from October 11, 2018. Based on the audiological test results, a rating in excess of 50 percent is not warranted during this time period. The Board acknowledges the Veteran’s assertions that he cannot hear with his hearing aids. Although a January 2018 VA treatment record indicated that his volume control was broken in his hearing aids, his May 2018, May 2019, and August 2019 VA treatment records reveal his hearing aids were functioning correctly. Moreover, as indicated in the July 2020 addendum opinion, the VA examinations are performed without the use of hearing aids. Even without the use of hearing aids, he still had fair word recognition ability. As the examiner noted in the addendum, if the Veteran had problems with his hearing aids that made his hearing loss disability increase with their use, then he should have his hearing aids repaired. In addition, in a December 2020 letter from the Director of Compensation Service, the Veteran’s request for an extraschedular rating was denied. After a review of the record, the Board finds that an extraschedular rating is not warranted throughout the rating period on appeal. In this regard, there is no evidence that his bilateral hearing loss creates an exceptional or unusual disability picture and/or produces marked interference with employment or frequent periods of hospitalization. See Thun v. Peake, 22 Vet. App. 111, 116 (2008), aff’d,572 F.3d 1366 (Fed. Cir. 2009). Although the Veteran reported his hearing loss impacted ordinary conditions of daily life, including the ability to work, the November 2019 addendum opinion indicated that he had the ability to function well in many occupational settings with the exception of noisy environments or environments where he was unable to communicate face to face. Moreover, in the latest October 2019 VA examination, he did not report that his hearing loss impacted ordinary conditions of daily life, including the ability to work. In sum, there is no evidence that an extraschedular rating is warranted throughout the rating period on appeal given that his bilateral hearing loss disability does not create an exceptional or unusual disability picture. Lastly, the Board acknowledges the impact of the Veteran’s hearing loss on his daily activities and VA’s obligation to resolve all reasonable doubt in the Veteran’s favor. However, given that the assignment of disability ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometry evaluations are rendered there is no doubt as to the proper evaluation to assign. Lendenmann v. Principi, 3 Vet. App. 345 (1992); 38 C.F.R. § 4.85, Tables VI, VIA, and VII, Diagnostic Code 6100. Applying the audiological test results most favorable to the Veteran to the regulatory criteria, the Board is compelled to conclude that the preponderance of the evidence is against the claims of entitlement to ratings in excess of 10 percent from February 12, 2011, to February 11, 2013, and in excess of 40 percent from February 12, 2013, to October 10, 2018. The Board finds that a rating of 50 percent, but no higher, is warranted from October 11, 2018. Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. (Hurley) Merrick 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.