Citation Nr: 21022314 Decision Date: 04/15/21 Archive Date: 04/15/21 DOCKET NO. 18-35 354 DATE: April 15, 2021 ORDER A rating in excess of 10 percent for bilateral hearing loss prior to December 18, 2018, is denied. A rating in excess of 40 percent for bilateral hearing loss since December 18, 2018, is denied. FINDINGS OF FACT 1. The Veteran had active duty from February 1952 to February 1956 and from May 1969 to May 1972. 2. Prior to December 18, 2018, bilateral hearing loss was manifested by no worse than Level I hearing acuity in the right ear and Level XI hearing acuity in the left ear. 3. Since December 18, 2018, bilateral hearing loss has been manifested by no worse than Level V hearing acuity in the right ear and Level IX hearing acuity in the left ear. CONCLUSIONS OF LAW 1. Prior to December 18, 2018, the criteria for a rating in excess of 10 percent for bilateral hearing loss were not met. 38 U.S.C. §§ 1155, 5103(a), 5103A (2012); 38 C.F.R. §§ 3.350, 3.385, 4.1, 4.3, 4.85, 4.86, Diagnostic Code (DC) 6100 (2020). 2. Since December 18, 2018, the criteria for a rating in excess of 40 percent for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5103(a), 5103A (2012); 38 C.F.R. §§ 3.350, 3.385, 4.1, 4.3, 4.85, 4.86, DC 6100 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In November 2019, the Board remanded the appeal for additional development. The case has now been returned to the Board for further appellate action. Turning to the relevant laws and regulations, disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Ratings for hearing loss disability 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, in decibels (dB) as measured by pure tone audiometric tests in frequencies 1000, 2000, 3000, and 4000 Hertz (Hz). 38 C.F.R. § 4.85, DC 6100. An examination for hearing impairment for VA purposes must include a controlled speech discrimination test (Maryland CNC). To evaluate the degree of disability from defective hearing, the rating schedule requires assignment of a Roman numeral designation, ranging from I to XI. Other than exceptional cases, VA arrives at the proper designation by mechanical application of Table VI, which determines the designation based on results of standard test parameters. Table VII is then applied to arrive at a rating based upon the respective Roman numeral designations for each ear. Exceptional patterns of hearing impairment allow for assignment of the Roman numeral designation using Table VI or an alternate table, Table VIA, whichever is more beneficial to the Veteran. 38 C.F.R. § 4.86. This applies to two patterns. In both patterns each ear will be evaluated separately. The first pattern is where the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hz) is 55 dB or more. 38C.F.R. § 4.86(a). The second pattern is where the pure tone threshold is 30 decibels or less at 1000 Hz and 70 dB or more at 2000 Hz. If the second pattern exists, the Roman numeral will be elevated to the next higher numeral. Turning to the medical evidence for the first period on appeal, in a March 2004 VA examination, the Veteran reported difficulty hearing on his left side and understanding conversation 30 plus years previously. The pure tone thresholds, in decibels, were reported as follows: HERTZ 500 1000 2000 3000 4000 RIGHT n/a 10 10 40 35 LEFT n/a 70 70 85 105 The average pure tone threshold was 24 in the right ear, and 83 in the left ear. Speech audiometry revealed speech recognition ability of 100 percent in the right ear and 24 percent in the left ear. Applying Table VII to the March 2004 examination findings results in Level I in the right ear and Level XI in the left ear, which equates to a 10 percent rating. However, based on these results the Veteran displayed an exceptional pattern of hearing loss in the left ear. See 38 C.F.R. § 4.86. As such, the Roman numeral designation for the left ear for this period can be alternatively derived from Table VIA. Applying the March 2004 VA audiological test results for the left ear to Table VIA, the result is a Level VII designation for the left ear. As the Level XI hearing impairment from Table VI is higher than the Level VII designation derived from Table VIA, the Level XI designation from Table VI will be used to determine the rating for the left ear, which still results in a 10 percent rating. There is no medical evidence showing worse levels of hearing acuity. In October 2016, the Veteran underwent a VA audiological examination; however, the examiner found that the tests result from the examination were not valid for rating purposes. The examiner explained that despite repeated attempts and reinstruction the tests results were not reliable and were not suitable for rating purposes. The examiner noted that the test results were strongly suggestive of a non-organic hearing loss. In February 2017, the Veteran submitted private treatment records that included December 2008 and January 2017 private audiograms; however, the December 2008 report does not specify whether the Maryland CNC test was used in determining speech discrimination scores. Under 38 C.F.R. § 4.85(a), an examination for hearing impairment for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a puretone audiometry test. Therefore, the Board is not able to consider the private audiological examination for rating purposes. See Savage v. Shinseki, 24 Vet. App. 259, 263-64 (2011). With regards to the January 2017 private audiogram, the Board remanded the claim in November 2019 in order to request clarification from a private audiologist. Next, the AOJ sent the Veteran a VA 21-4142 authorization to disclose information forms in December 2019. The Veteran did not respond. Although the Veteran did not respond, the page that contained the graphic presentation of the January 2017 private audiogram included a note specifying that word discrimination was performed using the CID W-22 word list. Accordingly, these speech discrimination scores cannot be used for rating purposes as the regulation specifies that the Maryland CNC word list must be used for rating purposes. Additionally, the Veteran has been afforded a VA examination since these private audiograms were performed. The current severity of his bilateral hearing loss has been evaluated. In sum, the medical evidence shows that the right ear hearing loss has been manifested by no worse than Level I hearing acuity and left ear hearing loss has been manifested by no worse than Level XI hearing acuity for the period prior to December 18, 2018. These findings equate to a 10 percent rating and clinical records do not contradict these findings. Therefore, the medical evidence does not support a rating in excess of 10 percent for bilateral hearing loss prior to December 18, 2018. Turning to the medical evidence since December 18, 2018, in a December 2018 VA examination, the Veteran reported that he was hard of hearing and sound was garbled in the left ear. He indicated that he relied on using his hearing aid in the right ear to better understand what was being said. He noted that even with the use of his hearing aid, he must position himself to the right of the speaker or turn his head to the right to hear better. He indicated asking others to repeat and using headphones to watch television. The pure tone thresholds, in decibels, were reported as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 40 60 65 65 60 LEFT 95 80 90 105+ 105+ The average pure tone threshold was 63 in the right ear, and 95 in the left ear. Speech audiometry revealed speech recognition ability of 72 percent in the right ear and “CNT” (could not test) in the left ear. Applying these values to the rating criteria results in a numeric designation of V in the right ear and IX in the left ear. Applying the Level V Roman Numeral designation for the right ear and Level IX Roman Numeral designation for the left ear to Table VII results in a 40 percent rating. Based on these results, an exception pattern of hearing is shown in the right ear as defined in 38 C.F.R. § 4.86. As such Table VIA may be used, which results in a numeric designation of V in the right ear. As the numeric designation for the right ear under Table VIA (Level V) was the same as that under Table VI (Level V), the result is still a 40 percent rating. Based upon the above medical evidence, a rating in excess of 10 percent is not warranted prior to December 18, 2018, and a rating in excess of 40 percent is not warranted since December 18, 2018. In rendering this decision, the VA examiners addressed the functional impact of the Veteran’s hearing loss and indicated that he had difficulty understanding speech. See Martinak v. Nicholson, 21 Vet. App. 447 (2007). The Board has also considered the Veteran’s lay contentions that his hearing is worse than currently rated and that sound was garbled in the left ear, relying on using his hearing aid in the right ear, positioning himself to the right of the speaker or turn his head to the right to hear better and using headphones to watch television. However, as indicated above, the examiner’s considered the impact of his hearing on his daily life. Here, the objective medical evidence consists of the above VA and examinations, which indicate that the Veteran’s hearing loss meet the requirements for a 10 percent rating prior to December 18, 2018, and does not meet the requirements for a rating in excess of 40 percent rating as of December 18, 2018. For these reasons, the appeals are denied. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board’s consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). L. HOWELL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Grzeczkowicz 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.