Citation Nr: 21021055 Decision Date: 04/09/21 Archive Date: 04/09/21 DOCKET NO. 14-36 140 DATE: April 9, 2021 ORDER 1. Entitlement to a 10 percent rating for bilateral hearing loss beginning July 29, 2016 is granted. 2. Entitlement to a disability rating in excess of 40 percent beginning February 5, 2020 is denied. FINDING OF FACT 1. The preponderance of the evidence shows that the Veteran is entitled to a rating of 10 percent for bilateral hearing loss effective July 29, 2016. 2. The preponderance of the evidence shows that the Veteran is not entitled to a rating in excess of 40 percent beginning February 5, 2020. CONCLUSION OF LAW 1. The criteria for entitlement to a 10 percent rating for bilateral hearing loss beginning July 29, 2016 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100. 2. The criteria for entitlement to a rating in excess of 40 percent for bilateral hearing loss beginning February 5, 2020 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1967 to February 1969. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2013 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO). This appeal was previously before the Board in May 2018, when the issue was remanded so that the Veteran could be afforded a VA examination to address his claim of worsening hearing. The Veteran was afforded a VA examination in February 2020, and a March 2020 rating decision increased the Veteran’s evaluation for bilateral hearing loss to 40 percent effective February 5, 2020. In a March 2020 Supplemental Statement of the Case (SSOC), the Agency of Original Jurisdiction (AOJ) denied entitlement to an initial compensable rating for bilateral hearing loss prior to February 5, 2020. The appeal was again before the Board in August 2020. VA treatment records demonstrate that the Veteran underwent a VA examination in July 2016 that indicated that there is information that could entitle the Veteran to a compensable rating prior to February 5, 2020. The Board remanded the issue so that the results from the Veteran’s July 29, 2016 audiological examination could be obtained. In September 2020, the Audiogram Display from this appointment was associated with the case file. Therefore, the Board finds that there has been substantial compliance with the August 2020 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Increased Rating Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate Diagnostic Codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Each disability must be viewed in relation to its history and the limitation of the activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. “Staged” ratings are 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. Hart v. Mansfield, 21 Vet. App. 505 (2007). Given the nature of the present claim for a higher initial evaluation, the Board has considered all evidence of severity since the effective date for an award of service connection. Fenderson v. West, 12 Vet. App. 119 (1999). Hearing loss ratings are based on mechanical application of VA rating schedule to the results of audiometric testing. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). The raw data comes from audiology reports that demonstrate average hearing threshold at the frequencies 1000, 2000, 3000, and 4000 Hertz. These results are grouped into 11 auditory acuity levels designated from Level I for normal hearing acuity, through Level XI for profound deafness. A rating is determined based upon combination of levels of hearing loss in both ears, and speech discrimination scores. See 38 C.F.R. § 4.85, Table VI. For certain forms of severe hearing limitation, Table VIA is also available to calculate the rating, based on only pure tone threshold averages and not speech discrimination scores. See 38 C.F.R. § 4.86. 1. Entitlement to an initial compensable rating for bilateral hearing loss prior to February 5, 2020 The Veteran underwent a VA examination in February 2013. His puretone thresholds, in decibels, were as follows: 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz Right 35 35 55 85 85 Left 30 25 55 95 105 The pure tone average was 65 in the right ear and 70 in the left ear. Speech audiometry revealed speech recognition ability of 92 in both ears. He described the functional impact of his hearing loss as difficulty with speech in noise. See Martinak v. Nicholson, 21 Vet. App. 447 (2007). He had Level II hearing in both ears. This corresponds to a noncompensable rating under Diagnostic Code 6100. In July 2016, the Veteran’s hearing was evaluated at a VA medical facility. His puretone thresholds, in decibels, were as follows: 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz Right 35 35 50 85 90 Left 35 40 55 95 95 The pure tone average was 65 in the right ear and 71 in the left ear. Speech audiometry revealed speech recognition ability of 80 in both ears. This corresponds to Level IV hearing loss in each ear. This corresponds to a 10 percent rating under Diagnostic Code 6100. Accordingly, the preponderance of the most probative evidence shows that the Veteran is entitled to a 10 percent rating prior to February 5, 2020, effective July 29, 2016. 2. Entitlement to a rating in excess of 40 percent for bilateral hearing loss beginning February 5, 2020 In a March 2020 rating decision, the Veteran’s evaluation for bilateral hearing loss was increased to 40 percent effective February 5, 2020. The Veteran contends that he is entitled to a rating in excess of 40 percent beginning February 5, 2020. His puretone thresholds, in decibels, were as follows: 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz Right 40 45 65 85 80 Left 45 50 75 105 100 The pure tone average was 69 in the right ear and 83 in the left ear. Speech audiometry revealed speech recognition ability of 68 in the right ear and 64 in the left ear. These audiometric findings show Level VI hearing in the right ear Level VIII hearing in the left ear. This corresponds to a 40 percent rating, which the AOJ assigned effective February 5, 2020 pursuant to Diagnostic Code 6100. At the February 2020 VA examination, the Veteran reported that as a result of his hearing loss, he experiences social isolation, difficulty communicating and missing conversations. The Veteran also reported that it is difficult for him to hear the correct noises on equipment at his job. See Martinak, 21 Vet. App. 447. The Board has considered the Veteran’s reported symptomatology related to the service-connected bilateral hearing loss. He is competent to report a decrease in hearing acuity and clarity because this requires only personal knowledge as it comes through one’s senses. Layno v. Brown, 6 Vet. App. 465, 470 (1994). His assertions are also credible. However, the assignment of a disability rating for hearing impairment is derived by a mechanical application of the Rating Schedule to the numeric designations resulting from audiometric testing. See Lendenmann, 3 Vet. App. at 349. In this case, such competent evidence concerning the nature and extent of the Veteran’s disability has been provided in the medical evidence of record. The Veteran in this case is not competent to measure his level of hearing loss and apply it to the Rating Schedule, as the record does not show that he has the expertise or training to conduct audiometric testing to measure the degree of bilateral hearing loss. The Veteran described the functional impact of his hearing loss, as difficulty communicating including when there is noise, missing conversations, trouble hearing correct noises at work. The functional impact that the Veteran describes is contemplated by the rating criteria. Doucette v. Shulkin, 28 Vet. App. 366 (2017). The Veteran’s main complaint is reduced hearing acuity and clarity, which is what is contemplated in the rating assigned. See Martinak v. Nicholson, 21 Vet. App. 447 (2007). With regard to social isolation, there is no probative evidence in the record indicating that the Veteran has social isolation that constitutes a psychiatric disability warranting compensation as part of his hearing loss. The requirement for compensation for a psychiatric disability is a valid DSM-5 diagnosis. Martinez-Bodon v. Wilkie, 32 Vet. App. 393, 404 (2020). Extraschedular compensation for hearing loss is not a way to circumvent this. Long v. Wilkie, 33 Vet. App. 167 (2020). Additionally, he is already service-connected for PTSD for the entire appeal period, and the rating criteria for PTSD contemplate social impairment. 38 C.F.R. § 4.130. For these reasons, a rating in excess of 40 percent beginning February 5, 2020 is denied. 38 C.F.R. §§ 4.3, 4.7. D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. DeVerter, 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.