Citation Nr: 21021030 Decision Date: 04/09/21 Archive Date: 04/09/21 DOCKET NO. 16-52 677 DATE: April 9, 2021 ORDER Entitlement to an initial compensable rating prior to January 4, 2021, and a rating in excess of 20 percent thereafter for bilateral hearing loss is denied. FINDINGS OF FACT 1. Prior to January 4, 2021, the Veteran’s hearing loss was manifested by hearing levels of no worse than Level I in the right ear and Level III in the left ear. 2. From January 4, 2021, the Veteran’s hearing loss is manifested by hearing levels of no worse than Level IV in the right ear and Level VII in the left ear. CONCLUSION OF LAW The criteria for an initial compensable rating prior to January 4, 2021, and a rating in excess of 20 percent thereafter for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Army from January 1952 to January 1954. In May 2019, the Veteran was provided a hearing with the undersigned Veterans Law Judge and a transcript of the proceeding is of record. The claim was brought before the Board in June 2019 and June 2020 and was remanded for further development. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. 38 C.F.R. Part 4. The Board determines the extent to which a veteran’s service-connected disability adversely affects his/her ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.10. Where there is a question as to which of two ratings should 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. 38 C.F.R. § 4.7. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14. Additionally, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In a claim for a greater original rating after an initial award of service connection, all of the evidence submitted in support of the veteran’s claim is to be considered. See Fenderson v. West, 12 Vet. App. 119 (1999); 38 C.F.R. § 4.2. However, consideration must be given as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. See Fenderson v. West, 12 Vet. App. 119 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2007). Entitlement to an Increased Rating: Bilateral Hearing Loss The Veteran’s bilateral hearing loss is rated as non-compensable prior to January 4, 2021 and as 20 percent disabling thereafter under Diagnostic Code 6100 for Hearing Impairment. Under Diagnostic Code 6100, disability ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are made. Bruce v. West, 11 Vet. App. 405 (1998); Lendenmann v. Principi, 3 Vet. App. 345 (1992). To evaluate the degree of disability from service-connected defective hearing, the rating 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 Code 6100. Further, additional considerations apply when exceptional patterns of hearing impairment are demonstrated. Exceptional patterns of hearing impairment occur 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). Also, 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 considered separately. 38 C.F.R. § 4.86 (b). In Martinak v. Nicholson, 21 Vet. App. 447 (2007), the Court held that in addition to dictating objective test results a VA audiologist must describe the functional effects caused by a hearing disability in his or her final report. The Court noted, however, that, even if an audiologist’s description of the functional effects of a veteran’s hearing disability was somehow defective, the Veteran bears the burden of demonstrating any prejudice caused by a deficiency in the examination. Id. In August 2015, the Veteran received a VA examination. The Veteran’s audiological evaluation, with pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 15 45 70 80 LEFT 15 25 65 75 85 Speech audiometry revealed speech recognition ability of 96 percent in the right ear and 90 percent for the left ear. The average pure tone threshold in decibels for the right ear was 53 and 63 for the left ear. Regarding functional impact, the Veteran did not report any impact on ordinary conditions of daily life, including work. In January 2021, the Veteran was attended another VA examination. The Veteran’s audiological evaluation, with pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 30 60 60 85 LEFT 30 30 50 80 90 Speech audiometry revealed speech recognition ability of 80 percent in the right ear and 56 percent for the left ear. The average pure tone threshold in decibels for the right ear was 59 and 63 for the left ear. Regarding functional impact, the Veteran reported it was hard for him to understand people. In applying Table VI to the August 2015 examination, a level I is provided for the right ear and level III for the left ear. See 38 C.F.R. § 4.85. In applying Table VI to the January 2021 examination, a level IV hearing is provided for the right ear and a level VII for the left ear. Id. In applying the results of Table VI for the August 2015 examination where the right ear (better ear) is Roman numeral I, and the left ear (poorer ear) is Roman numeral III, the appropriate rating is 0 percent. In applying the results of the January 2021 examination where the right ear (better ear) is Roman numeral IV, and the left ear (poorer ear) is Roman numeral VII, the appropriate rating is 20 percent. See 38 C.F.R. § 4.85, Table VII, Diagnostic Code 6100. The Board notes that neither examination showed an exceptional pattern of hearing and thus, Table VIA is not to be applied. See 38 C.F.R. § 4.86 (b). The Board further notes that the medical evidence of record does not show any other testing that provides pure tone threshold decibel averages and speech recognition percentages. Further, the Board sympathizes with the Veteran’s reported functional impact of not being able to understand people and occasionally hearing the wrong words, as reported in his May 2019 Board hearing. However, 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. Additionally, the Board finds that the functional impact reported on the Veteran’s examinations and Board hearing is represented by the ratings assigned during each period. Therefore, the Board concludes that the preponderance of evidence is against the claim and the benefit of the doubt doctrine is not for application. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). Accordingly, a compensable rating for bilateral hearing loss prior to January 4, 2021 and in excess of 20 percent thereafter is not warranted. JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Negron, 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.