Citation Nr: 21020937 Decision Date: 04/08/21 Archive Date: 04/08/21 DOCKET NO. 16-14 828 DATE: April 8, 2021 ORDER Entitlement to an initial compensable rating of 10 percent, but no higher for bilateral hearing loss is granted. FINDING OF FACT From March 30, 2007, the Veteran’s bilateral hearing loss is manifested is manifested by hearing impairment corresponding to no higher than an auditory acuity of Level 1 in the right ear and Level IX in the left ear, which equates to a 10 percent rating. CONCLUSION OF LAW The criteria for an initial 10 percent rating, but no higher, for bilateral hearing loss have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.21, 4.85, Diagnostic Code (DC) 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1967 to December 1969. This matter is on appeal from an August 2014 rating decision and was previously remanded by the Board in September 2018. Procedurally, the Veteran was granted service connection for a bilateral hearing loss by an August 2014 rating decision and was assigned a noncompensable rating, effective March 30, 2007. The Veteran filed a timely Notice of Disagreement in December 2014, asserting that his hearing loss warrants at least a 10 percent rating. After development pursuant to the September 2018 remand, the Veteran was assigned a 10 percent rating, effective June 19, 2019, by an October 2019 rating decision. As a preliminary matter, the Board notes that the issue has been characterized by the Veteran’s representative as an entitlement to a compensable evaluation earlier than March 30, 2007 and higher than 10 percent from June 19, 2019. Generally, an effective date of an award of service connection is not based on the earliest medical evidence showing a causal connection, but on the date that the application upon which service connection was eventually awarded was filed with VA. Lalonde v. West, 12 Vet. App. 377, 382 (1999). The statutory guidelines for the determination of an effective date of an award of disability compensation are set forth in 38 U.S.C. § 5110. In this case, while the Veteran’s representative has argued for an earlier effective date for the grant of an initial rating, the Board will not adjudicate this issue. In his 2014 Notice of Disagreement, the Veteran only argued for a higher rating and did not appeal the effective date of the grant of his service connection. Therefore, the issue of an earlier effective date for the grant of service connection for bilateral hearing loss is not on appeal and the effective date for his bilateral hearing loss remains March 30, 2007. The issue before the Board is whether a compensable rating is warranted for the period prior to June 19, 2019, and a rating in excess of 10 percent thereafter. Disability ratings for hearing loss are derived from a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing. Lendenman v. Principi, 3 Vet. App. 345 (1992). The rating schedule establishes auditory hearing acuity levels based on average pure tone thresholds and speech discrimination. 38 C.F.R. § 4.85. Ratings for hearing loss are determined in accordance with the findings obtained on audiometric examinations. Ratings for hearing impairment range from 0 percent to 100 percent based on organic impairment of hearing acuity, as measured by the results of the controlled speech discrimination tests, together with the average hearing threshold level as measured by pure tone audiometry tests in the frequencies 1000, 2000, 3000, and 4000 Hertz. To rate the degree of disability from hearing impairment, the rating schedule establishes eleven auditory acuity levels designated from Level I for essentially normal acuity through Level XI for profound deafness. 38 C.F.R. § 4.85, Diagnostic Code 6100. Hearing tests will be conducted without hearing aids, and the results of testing are charted on Table VI and Table VII. 38 C.F.R. § 4.85, Tables VI, VII. Exceptional patterns of hearing impairment are rated under 38 C.F.R. § 4.86. When the pure tone threshold at each of the four specified frequencies of 1000, 2000, 3000, and 4000 Hertz is 55 decibels or more, 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. Each ear will be evaluated separately. When the 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 for hearing impairment from Table VI or Table VIa, whichever is higher. That numeral will then be elevated to the next higher Roman numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86. Entitlement to an initial compensable rating from March 30, 2007 to June 18, 2019, and in excess of 10 percent thereafter. The Veteran first filed for service connection for bilateral hearing loss on March 30, 2007, which he was ultimately granted service connection at a noncompensable rating by an August 2014 rating decision. In arguing for a higher rating, the Veteran submitted various buddy statements from his friends and family, all indicating that they have witnessed his diminished hearing over the years. His hearing acuity has reduced to the point in which the Veteran has difficulty following conversations. VA treatment records have shown that the Veteran was fitted for a hearing aid in 2009. He was afforded a VA audiological examination in January 2009 where he demonstrated sensorineural hearing loss in both ears. There, his pure tone thresholds in decibels were as follows: HERTZ 1000 2000 3000 4000 RIGHT 10 15 50 60 LEFT 80 75 75 85 His puretone average was 34 Hz in the right ear and 79 Hz in the left ear. His right ear speech recognition score was noted as 100 percent and 8 percent in the left ear. The examiner did not state that use of a speech discrimination score is not appropriate for this Veteran, and the Board interprets this to mean that use of speech discrimination scores was appropriate for this Veteran at this time. When applied to Table VI of 38 C.F.R. § 4.85, Roman Numeral I was assigned to the right ear and level XI is assigned for the left ear. Based on 38 C.F.R. § 4.85 Table VII, a rating of 10 percent would be warranted. While a new examination report was obtained in February 2011, the Veteran’s hearing acuity was not measured. VA treatment reports in October 2011 showed that the Veteran reported to another consultation for a hearing aid check. As before, he reported difficulty hearing in background noise. Social security administration records reflect complaints of poor hearing in the left and right ear. The Veteran was reevaluated at a VA examination in June 2014. His audiometric readings in decibels were as follows: HERTZ 1000 2000 3000 4000 RIGHT 5 20 50 55 LEFT 85 80 80 95 His puretone average was 33 Hz in the right ear and 85 Hz in the left ear. His speech discrimination score was 96 percent in the right ear. However, results were not obtained for the left ear. The examiner noted that the word recognition score is not appropriate for this Veteran because of language difficulties, cognitive problems, and/or inconsistent word recognition scores. Taking the Veteran’s worst audiometric reading, and applying the June 2014 audiometric results to Table VI of 38 C.F.R. § 4.85, Roman Numeral I was assigned for the right ear. However, as the left ear results could not be fully obtained, the Board will also apply Table VIa. Table VIa is used when the examiner certifies that use of the speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc., or when an exceptional pattern of hearing loss is shown, specifically when the pure tone threshold at 1000, 2000, 3000, and 4000 Hertz is 55 decibels or more, or when the pure tone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz. 38 C.F.R. § 4.86. When the pure tone threshold at 1000, 2000, 3000, and 4000 Hertz is 55 decibels or more in a particular ear, determination of the level of hearing acuity in that ear will be made using either Table VI or Table VIa, whichever results in the higher numeral. Id. As an exceptional pattern of hearing loss is reflected by the June 2014 examination on the left ear, Table Via, is therefore applicable. Under Table VIa, the Veteran has a level I in the right ear and level VIII in the left ear. When the results are combined and applied to Table VII, the Veteran’s hearing loss would be evaluated at a noncompensable rating. In his November 2016 VA Form 646, the Veteran, through his representative, asserted that his hearing worsened since the June 2016 VA examination. He was then afforded a new VA examination in June 2019. There, his audiometric readings were as follows: HERTZ 1000 2000 3000 4000 RIGHT 10 30 55 65 LEFT 90 90+ 95 95+ His puretone average was 40 Hz in the right ear and 93 Hz in the left ear. His speech discrimination score was 100 percent in the right ear and 0 percent in the left ear. The examiner found that use of a speech discrimination score is appropriate. The Veteran added that his hearing loss has become so severe that he has a difficult time hearing in the car or follow conversations with others. He relies heavily on his right ear. When applied to Table VI of 38 C.F.R. § 4.85, Roman Numeral I was assigned to the right ear and level XI is assigned for the left ear. Based on 38 C.F.R. § 4.85 Table VII, a rating of 10 percent is assigned. Again, due to the exceptional pattern of hearing loss, the Board will also apply Table VIa. Under Table VIa, the Veteran has a level I hearing loss in the right ear and IX in the left ear. When Level I hearing loss is paired with Level IX hearing loss in the left ear, his hearing loss is also evaluated at 10 percent rating. The results of the January 2009 and June 2014 VA examinations are in conflict, particularly whether the use of speech recognition scores is appropriate for this Veteran. The June 2019 VA examination also found that the use of speech recognition scores was appropriate for this Veteran, with significantly worse results for the Veteran’s left ear hearing loss. While the June 2014 VA examination suggests that the use of speech discrimination scores is not appropriate to assess the Veteran’s hearing loss, the Board finds that the evidence as a whole suggests that such use is appropriate. Moreover, the findings from the June 2019 VA examination suggest that the Veteran’s left ear hearing loss remained at Level XI as indicated in the January 2009 VA examination. The Board finds that the evidence in relative equipoise, and resolving reasonable doubt in the Veteran’s favor, finds that the Level I and Level XI hearing loss in the right and left ears, respectively, continued throughout the appeal period such that a 10 percent rating, but no higher, is warranted from March 30, 2007. (Continued on the next page)   In considering the appropriate disability rating, the Board has considered the various lay statements from the Veteran attesting to the impact of his hearing loss, as well as the Veteran’s assertions that he has hearing acuity less than what has been depicted in his audiometric evaluations. But while the Veteran is competent to report symptoms such as diminished hearing capacity, he does not have the medical knowledge and is not trained to conduct audiometric testing. Thus, he is not competent to identify the specific level of his hearing acuity in this case. Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Veteran has not submitted any objective medical evidence to support his claim that his hearing loss warrants a higher rating. Accordingly, the Board finds that the preponderance of the evidence supports a finding that a 10 percent rating, but no higher, for the Veteran’s bilateral hearing loss is warranted from March 30, 2007, and the appeal is granted. Tiffany Dawson Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Yeh, 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.