Citation Nr: 21022844 Decision Date: 04/19/21 Archive Date: 04/19/21 DOCKET NO. 15-36 054 DATE: April 19, 2021 ORDER Entitlement to a disability rating in excess of 30 percent for bilateral hearing loss from July 12, 2019 is denied. Entitlement to a compensable disability rating for bilateral hearing loss prior to July 12, 2019 is denied. FINDINGS OF FACT 1. The Veteran’s hearing loss manifested as Level VI bilaterally from July 12, 2019. 2. The Veteran’s hearing loss manifested as Level II in the right ear and Level I in the left ear prior to July 12, 2019. CONCLUSIONS OF LAW 1. From July 12, 2019, the criteria for entitlement to a disability rating in excess of 30 percent for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.385, 4.85, Diagnostic Code 6100. 2. Prior to July 12, 2019, the criteria for entitlement to a compensable disability rating for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.385, 4.85, Diagnostic Code 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1967 to September 1971. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision of July 2018 issued by the Department of Veterans Affairs (VA) Regional Office (RO). A hearing was conducted in this matter in October 2019 and a transcript of that hearing is of record. The Veteran was offered, but did not accept, an additional hearing before the undersigned Veterans Law Judge (VLJ). See February 2021 Board Letter. Accordingly, no additional hearing before the undersigned VLJ was conducted. The Board previously remanded this case in March 2020 for further development, including the issuance of a supplemental statement of the case (SSOC) and the acquisition of additional medical records. See March 2020 Board Decision at 12-15; see also id. at 6-7 (reviewing prior procedural history); see also id. (noting that the Veteran had previously filed an appeal on this issue, but withdrew this prior appeal in August 2017 and later filed a new claim for increase in May 2018). Disability Ratings for Hearing Loss Disability evaluations are determined by comparing a Veteran’s present symptomatology with criteria set forth in VA’s Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for a higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran’s entire history is reviewed when making disability rating decisions. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). However, where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings. See 38 C.F.R. § 4.2; Francisco v. Brown, 7 Vet. App. 55 (1994). The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Hart v. Mansfield, 21 Vet. App. 505 (2007). The applicable rating criteria provide that the Veteran’s hearing is measured using pure tone threshold averages, which are calculated using “the sum of the pure tone thresholds at 1000, 2000, 3000, and 4000 Hertz, divided by four.” 38 C.F.R. § 4.85(d). These averages are combined with the Veteran’s speech discrimination scores to create numeric designations for each ear. See 38 C.F.R. § 4.85(h), Table VI; see also § 4.85(a). These numeric designations are then combined to produce a disability rating. Id. at Table VII. 1. Entitlement to a disability rating in excess of 30 percent for bilateral hearing loss from July 12, 2019. The Veteran underwent VA examinations during this portion of the rating period in September 2019 and October 2020. The September 2019 VA examiner found the following pure tone decibel thresholds: HERTZ 1000 2000 3000 4000 RIGHT 55 55 55 60 LEFT 60 55 60 65 This examiner calculated the Veteran’s pure tone threshold averages as 56 for the right ear and 60 for the left ear. This examination also found speech discrimination scores of 64 percent for the right ear and 60 percent for the left ear. See September 2019 VA Examination Report at 2-3. The October 2020 VA examiner found the following pure tone decibel thresholds: HERTZ 1000 2000 3000 4000 RIGHT 55 40 45 45 LEFT 50 40 55 50 The Veteran’s pure tone threshold averages for this examination are therefore 46 for the right ear and 49 for the left ear. This examination also found speech discrimination scores of 80 percent for the right ear and 70 percent for the left ear. See October 2020 Medical Treatment Records at 1; see also id. at 2 (observing that “[when] compared with the test results obtained [in] 2019, no significant decrease in hearing sensitivity was noted”). The Veteran’s resulting numeric designations are therefore VI bilaterally for the September 2019 examination and III (right ear) and IV (left ear) for the October 2020 examination. See 38 C.F.R. § 4.85(h), Table VI. Neither the combination of VI and VI nor the combination of III and IV produces a disability rating in excess of 30 percent. See id. at Table VII. Certain patterns of hearing loss may be rated solely on the basis of pure tone thresholds – in other words, without the use of speech discrimination scores. See 38 C.F.R. § 4.86 (providing that hearing impairment is considered “exceptional” where pure tone thresholds are 55 decibels or more at each of the four specified frequencies, or where the threshold is 30 decibels or more at 1000 Hertz and 70 decibels or more at 2000 Hertz). The Veteran’s September 2019 results qualify for consideration on this basis. See 38 C.F.R. § 4.86(a) (providing that in qualifying cases, “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”). However, the Veteran’s September 2019 puretone threshold averages of 56 for the right ear and 60 for the left ear produce numeric designations of IV bilaterally under this alternate method. See 38 C.F.R. § 4.85(h), Table VIa. The combination of IV and IV also does not produce a disability rating in excess of 30 percent. See id. at Table VII. The Veteran also submitted a private audio examination of August 2019. As an initial matter, the Board notes that this private examiner may have used a speech discrimination test other than that allowed by the applicable regulations. See August 2019 Correspondence at 1 (noting both “MLV” and “Nu-6” tests); cf. 38 C.F.R. § 4.85(a) (providing in pertinent part that audio examinations “must include a controlled speech discrimination test (Maryland CNC)) (emphasis added). However, even assuming that the private examiner’s notation of an “MLV” test reflects the Maryland CNC test, the results obtained from this private examination also do not support the assignment of a disability rating in excess of 30 percent. The private examiner found the following pure tone decibel thresholds: HERTZ 1000 2000 3000 4000 RIGHT 50 40 45 50 LEFT 45 50 55 60 The Veteran’s puretone threshold averages from this examination are therefore 46 for the right ear and 53 for the left ear. The private examiner also found speech discrimination scores of 92 percent bilaterally. See August 2019 Correspondence at 1. This would produce numeric designations of I bilaterally, which would not support a disability rating in excess of 30 percent. See 38 C.F.R. § 4.85(h), Tables VI and VII. The assignment of a disability rating in excess of 30 percent for this portion of the rating period is therefore not warranted. 38 C.F.R. § 4.85. The Board has considered the doctrine of reasonable doubt but concludes that it is not applicable because the balance of the evidence is against the Veteran’s claim. 38 U.S.C. § 5107. 2. Entitlement to a compensable disability rating for bilateral hearing loss prior to July 12, 2019. As noted above, the Veteran withdrew a previous appeal on this issue in August 2017 before filing a new claim for increase in May 2018. See August 2017 VA Form 21-4138; see also May 2018 VA Form 21-526EZ. Generally, “[veterans] are as free to withdraw claims as they are to file them. When claims are withdrawn, they cease to exist.” Hanson v. Brown, 9 Vet. App. 29, 32 (1996). As discussed above, the relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Hart, 21 Vet. App. at 509. The relevant focus for the Board in this matter is therefore on the evidence from May 2017, one year prior to the filing of the Veteran’s claim. During this period, the Veteran underwent a VA examination in July 2018. The July 2018 VA examiner found the following pure tone decibel thresholds: HERTZ 1000 2000 3000 4000 RIGHT 40 25 35 40 LEFT 40 35 50 55 This examiner calculated the Veteran’s pure tone threshold averages as 35 for the right ear and 45 for the left ear. This examination also found speech discrimination scores of 90 percent for the right ear and 94 percent for the left ear. See July 2018 VA Examination Report at 3. The Veteran’s resulting numeric designations from this examination are therefore II (right ear) and I (left ear). See 38 C.F.R. § 4.85(h), Table VI. The combination of I and II does not produce a compensable disability rating. See id. at Table VII. The Board notes the Veteran’s assertions of exposure to noise during his active-duty service, as well as lay statements describing the functional impairment produced by his hearing loss. See December 2018 VA Form 9 (asserting that “I was on the flight deck for over 2 [years] surrounded by aircraft”); see also October 2019 Transcript at 16 (providing statements of the Veteran’s spouse that the Veteran “misconstrues words, he can’t hear me, I’m repeating myself a dozen times”). However, as noted above and as explained to the Veteran at his hearing, disability ratings for hearing loss are assigned based on objective criteria. See 38 C.F.R. § 4.85; see also October 2019 Transcript at 16. The assignment of a compensable disability rating for the Veteran’s bilateral hearing loss prior to July 12, 2019 is therefore not warranted. 38 C.F.R. § 4.85. The Board has considered the doctrine of reasonable doubt but concludes that it is not applicable because the balance of the evidence is against the Veteran’s claim. 38 U.S.C. § 5107. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Blore, 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.