Citation Nr: 21021084 Decision Date: 04/09/21 Archive Date: 04/09/21 DOCKET NO. 19-21 250 DATE: April 9, 2021 ORDER Entitlement to an initial compensable evaluation for bilateral sensorineural hearing loss prior to December 10, 2019, and to a disability rating in excess of 10 percent for bilateral hearing loss from December 10, 2019 is denied. FINDING OF FACT 1. Prior to December 10, 2019, the available audiological testing valid for rating purposes shows no worse than Level I hearing loss in the right ear and Level IV hearing loss in the left ear. 2. From December 10, 2019, the record shows no worse than Level II hearing loss in the right ear and Level VI hearing loss in the left ear. CONCLUSION OF LAW The criteria for entitlement to an initial compensable evaluation for bilateral sensorineural hearing loss prior to December 10, 2019, and to a disability rating in excess of 10 percent for bilateral hearing loss from December 10, 2019 have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85, Diagnostic Code 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1956 to July 1958. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a September 2017 rating decision. The matter was previously before the Board in September 2019, at which time it was remanded for development. It has been returned to the Board for appellate review. The September 2017 rating decision granted entitlement to service connection for bilateral sensorineural hearing loss and assigned an initial noncompensable evaluation effective from March 27, 2017. During the pendency of the remand, a June 2020 Decision Review Officer (DRO) decision increased the evaluation for bilateral hearing loss to 10 percent effective from December 10, 2019. As the assigned evaluations are less than the maximum available rating, the issues remain on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). The claimant has not raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). 1. Entitlement to an initial compensable evaluation for bilateral hearing loss, and to a disability rating in excess of 10 percent for bilateral hearing loss from December 10, 2019 Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity.  38 U.S.C. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes.  38 C.F.R. § 4.27. When rating the Veteran’s service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Court has held that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). Separate compensable evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as “staged” ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Regulations require that where there is a question as to which of two evaluations is to 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. 38 C.F.R. § 4.7. Ratings for service-connected hearing loss range from noncompensable (0 percent) to 100 percent. These ratings are based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination testing together with the average hearing threshold level as measured by pure tone audiometry tests in the frequencies 1,000, 2,000, 3,000 and 4,000 cycles per second. In evaluating service-connected hearing loss, disability ratings are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are performed. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Diagnostic Code 6100 provides a table for rating purposes (Table VI) to determine a Roman numeral designation (I through XI) for hearing impairment. The hearing impairment is established by a state licensed audiologist including a controlled speech discrimination and the pure tone threshold average, which is the sum of the pure tone thresholds at 1000, 2000, 3000, and 4000 Hertz (Hz), divided by four. See 38 C.F.R. § 4.85. Table VII is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment of each ear. The horizontal row represents the ear having the poorer hearing and the vertical column represents the ear having the better hearing. Id.  Under 38 C.F.R. § 4.86 (a) (exceptional patterns of hearing impairment), when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hz) 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 is to be evaluated separately. The provisions of 38 C.F.R. § 4.86 (b) provide that when the pure tone threshold is 30 decibels or less at 1000 Hz, 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 evaluated to the next higher Roman numeral. The Veteran seeks an initial compensable evaluation for bilateral hearing loss prior to December 10, 2019, and a rating in excess of 10 percent from December 10, 2019. He underwent a VA audiological examination in August 2017, where pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 35 50 50 45 45 LEFT 45 75 85 80 71 Speech audiometry revealed speech recognition ability of 92 percent in the right ear and of 78 percent in the left ear. During the examination, the Veteran reported difficulties following a conversation and understanding the TV. Based on the results of these tests, a Roman numeral I is designated for the right ear and a Roman numeral IV for the left ear from Table VI of 38 C.F.R. § 4.85. Intersecting the numeric designations to the applicable row and column for the right and left ear, a noncompensable rating is derived from Table VII of 38 C.F.R. § 4.85. The Board notes that the Puretone thresholds from this examination did not fall within the exceptional patterns of hearing loss contemplated by 38 C.F.R. § 4.86. In addition, the examiner reported that the use of a speech discrimination score was appropriate for the Veteran. See 38 C.F.R. § 4.85(c). The record also reflects VA audiological testing conducted in April 2018. Pure tone thresholds, in decibels, were: HERTZ 1000 2000 3000 4000 Average RIGHT 35 50 50 50 46 LEFT 50 75 80 80 71 Speech audiometry revealed speech recognition ability of 92 percent in the right ear and of 72 percent in the left ear. The Board notes that it is not apparent from the record whether the speech recognition scores were obtained using the Maryland CNC word list as required by 38 C.F.R. § 4.85(a). However, the Board finds it unnecessary to remand for clarification as even if the results were valid for rating purposes, they still would not entitle the Veteran to a compensable rating. Based on the results of these tests, a Roman numeral I is designated for the right ear and a Roman numeral VI for the left ear from Table VI of 38 C.F.R. § 4.85. Intersecting the numeric designations to the applicable row and column for the right and left ear, a noncompensable rating is derived from Table VII of 38 C.F.R. § 4.85. Again, the Board notes that the puretone thresholds from this examination did not fall within the exceptional patterns of hearing loss contemplated by 38 C.F.R. § 4.86. In addition, the provider did not report that the use of a speech discrimination score was appropriate for the Veteran. See 38 C.F.R. § 4.85(c). A final VA audiological examination was conducted December 10, 2019. Puretone thresholds, in decibels, were: HERTZ 1000 2000 3000 4000 Average RIGHT 35 50 50 50 46 LEFT 50 75 80 80 71 Speech audiometry revealed speech recognition ability of 84 percent in the right ear and of 72 in the left ear. The examiner stated that the Veteran's hearing loss did not impact ordinary conditions of daily life, including the ability to work. Based on the results of these tests, a Roman numeral II is designated for the right ear and a Roman numeral VI for the left ear from Table VI of 38 C.F.R. § 4.85. Intersecting the numeric designations to the applicable row and column for the right and left ear, a 10 percent rating is derived from Table VII of 38 C.F.R. § 4.85. The Board notes that the puretone thresholds from this examination continued to not fall within the exceptional patterns of hearing loss contemplated by 38 C.F.R. § 4.86. In addition, the examiner reported that the use of a speech discrimination score was appropriate for the Veteran. See 38 C.F.R. § 4.85(c). A review of this evidence confirms that the Veteran’s hearing loss warrants the already-assigned 10 percent evaluation from December 10, 2019, but no earlier, as that date represents the first instance in the record on which it was factually ascertainable that his hearing loss had undergone any increase in severity. A compensable evaluation is unwarranted prior to that date based on the above-summarized results of audiological testing. Based on the foregoing, the claim for increase must be denied. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). The regulations also provide that consideration of whether special monthly compensation (SMC) is warranted is required when evaluating any claim for impaired hearing. See 38 C.F.R. § § 4.85(g). Certain levels of SMC may be awarded for deafness. However, the SMC criteria require bilateral deafness or some other service-connected disability, such as blindness, which do not apply to the Veteran's case. 38 U.S.C. § 1114; 38 C.F.R. § § 3.350. Therefore, SMC is not warranted for the Veteran's bilateral hearing loss. K.C. SPRAGINS Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Z. Sahraie, 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.