Citation Nr: 21023013 Decision Date: 04/19/21 Archive Date: 04/19/21 DOCKET NO. 04-39 186 DATE: April 19, 2021 ORDER Entitlement to an initial, compensable disability rating prior to February 11, 2020 for bilateral hearing loss is denied. Entitlement to an increased disability rating in excess of 20 percent from February 11, 2020 for bilateral hearing loss is denied. REFERAL In March 2021, the Veteran’s representative raised the issue of tinnitus and a persistent balance problem and is thus referred to the Agency of Original Jurisdiction (AOJ) for any appropriate action. FINDINGS OF FACT 1. Prior to February 11, 2020, the Veteran’s bilateral hearing loss was manifested by hearing impairment no worse than Level II in the right ear and Level IV in the left ear. 2. From February 11, 2020, the Veteran’s bilateral hearing loss has been manifested by hearing impairment no worse than Level V in the right and left ears. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial, compensable disability rating prior to February 11, 2020 for bilateral hearing loss have not been met. 38U.S.C. §1155; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.27, 4.85, 4.86, Diagnostic Code 6100. 2. The criteria for entitlement to an increased disability rating in excess of 20 percent from February 11, 2020 for bilateral hearing loss have not been met. 38 U.S.C. § 1155; 38C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.27, 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1953 to June 1955, which included service during the Korean conflict. This matter is before the Board of Veterans’ Appeals (Board) on appeal of a November 2017 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The purpose of the November 2017 rating decision was for the RO to implement an October 2017 Board decision granting service connection for “bilateral hearing loss.” Unfortunately, in issuing the decision, the RO characterized the service-connected disability as “sensorineural hearing loss, right ear” only despite recognizing the Veteran had originally characterized the claim as one for a “bilateral ear condition/hearing loss.” In a November 2019 decision remanding this matter for further development, the Board did not acknowledge the error in the RO’s November 2017 rating decision and characterized the claim as a claim for “an initial compensable disability rating for sensorineural hearing loss, right ear.” Following the November 2019 Board decision, the RO issued an April 2020 rating decision granting an increased disability rating of 20 percent effective February 11, 2020 for sensorineural hearing loss of the right ear. Notwithstanding the RO’s characterization of the issue, a review of the RO’s narrative in its Reasons for Decision reveals the RO adjudicated the claim as though it was an increased disability rating claim for bilateral hearing loss. More specifically, rather than automatically assigning a Level I for the nonservice-connected left ear, as would be warranted based on the RO’s characterization of the claim and in accordance with 38 C.F.R. § 4.85(f), the RO considered the speech discrimination score and puretone threshold average associated with the left ear in assigning the increased disability rating. The Veteran was notified of this rating decision in May 2020. Inconsistent with its April 2020 rating decision, the RO simultaneously issued a Supplemental Statement of the Case (SSOC) in April 2020. At that time, the RO continued to deny an initial compensable disability rating for sensorineural hearing loss of the right ear. Even though the RO considered the same evidence relied on in its April 2020, this time it appears the RO automatically assigned a Level I for the nonservice-connected left ear, as would be warranted based on the RO’s characterization of the claim and in accordance with 38 C.F.R. § 4.85(f). Considering the above, the Board finds there is no prejudice to the Veteran in proceeding with the adjudication of this claim. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (holding that where the Board addresses a question that has not been addressed by the RO, it must consider whether there is any prejudice to the claimant).While the RO’s November 2017 rating decision implementing the Board’s October 2017 decision incorrectly characterized the issue as sensorineural hearing loss of the right ear only, the RO’s April 2020 rating decision clearly adjudicated the claim based on the hearing impairment attributable to both the right and left ears, disregarding its own characterization of the claim. Thus, through the April 2020 rating decision, the RO has, at least in effect, implemented the Board’s October 2017 award of service connection for bilateral hearing loss. Although the RO’s April 2020 SSOC continued to adjudicate the claim in characterization and effect as one for hearing loss of the right ear only, the SSOC does not rescind or amend the April 2020 rating decision. Given the RO’s April 2020 rating decision considered all the pertinent evidence of record considered by the RO in its April 2020 SSOC, the Board finds the RO’s April 2020 rating decision is functionally another SSOC. 38 C.F.R. § 19.37. Accordingly, the Board has re-characterized the claim from sensorineural hearing loss of the right ear to bilateral hearing loss consistent with its October 2017 decision. Most recently, in the July 2020 decision, the Board denied the Veteran’s claim for entitlement to an initial, compensable disability rating prior to February 11, 2020, and in excess of 20 percent from February 11, 2020, for his bilateral hearing loss. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In November 2020, the parties filed a Joint Motion for Partial Remand (JMPR) moving for vacatur of the July 2020 decision’s denial of entitlement to an initial, compensable disability rating prior to February 11, 2020, and in excess of 20 percent from February 11, 2020, for his bilateral hearing loss. On December 7, 2020, the Court issued an Order granting the JMPR and remanding the matter to the Board for further development and proceedings pursuant to 38 U.S.C. § 7252(a). In the JMPR, the parties agreed that the Board issued the decision denying the Veteran’s claim for entitlement to an initial, compensable disability rating prior to February 11, 2020, and in excess of 20 percent from February 11, 2020, for his bilateral hearing loss four days early, and must allow the Veteran the ability to submit additional evidence or argument. In March 2021, the Veteran’s representative stated that the Board should have construed the Veteran’s claim for hearing loss more broadly. The Board considered Clemons v. Shinseki, 23 Vet. App. 1 (2009) because as lay persons, VA does not expect Veterans to phrase their claims for service connection in terms of specific medical diagnoses, or if they do use a specific diagnosis VA law does not use that to artificially limit the scope of the Veteran’s claim. However, here the Veteran is seeking benefits based on symptoms/functional loss, not for a specific diagnosis. In this appeal, the Board has jurisdiction of the severity of the Veteran’s hearing loss and service connection for tinnitus and balance issues are beyond the scope of the increased rating for the Veteran’s hearing loss claim. The tinnitus and balance issue are separate claims. Thus, the Board is referring those claims for AOJ development. Neither the Veteran nor his representative has raised any further issues with regard to the duty to notify or duty to assist as they pertain to the issues considered in this decision. 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). The analysis in this decision focuses on the most relevant evidence and on what the evidence shows or does not show with respect to the issues denied in this decision. The Veteran should not assume that evidence that is not explicitly discussed in this decision has been overlooked. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (noting that the law requires only that reasons for rejecting evidence favorable to the claimant be addressed). Increased Rating 1. Entitlement to an initial, compensable disability rating prior to February 11, 2020 for bilateral hearing loss 2. Entitlement to an increased disability rating in excess of 20 percent from February 11, 2020 for bilateral hearing loss The Veteran contends that he is entitled to an initial, compensable disability rating prior to February 11, 2020, and in excess of 20 percent from February 11, 2020, for his bilateral hearing loss. In the November 2017 rating decision, the Veteran was awarded service connection for his bilateral hearing loss disability, with an effective date of February 5, 2003, therefore, the appeal period begins on February 5, 2003. The VA rating scheme for the evaluation of hearing loss provides ratings from noncompensable to 100 percent based on the results of controlled speech discrimination tests together with the results of puretone audiometry tests which average puretone thresholds at 1000, 2000, 3000 and 4000 Hertz. 38 C.F.R. § 4.85. The evaluation of hearing impairment applies a formula which is essentially a mechanical application of the VA Schedule for Rating Disabilities to numeric designations after audiology evaluations are rendered. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). 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. 38 C.F.R.§ 4.85(a). Using Table VI in 38 C.F.R. § 4.85, the puretone average and speech recognition score are combined to give each ear a numeric designation for use on Table VII to determine the correct disability level. Alternatively, Table VIA uses only the puretone averages to give each ear a numeric designation. The regulations have two provisions for evaluating veterans with certain patterns of hearing impairment that cannot always be accurately assessed under § 4.85 because the speech discrimination test may not reflect the severity of communicative functioning that veterans experience. 38 C.F.R. § 4.86(a) provides that if puretone thresholds in the specified frequencies of 1000, 2000, 3000, and 4000 Hertz are each 55 decibels or more, an evaluation can be based either on Table VI or Table VIA, whichever results in a higher evaluation. This provision corrects the fact that with a 55-decibel threshold level (the level at which speech becomes essentially inaudible) the high level of amplification needed to attempt to conduct a speech discrimination test would be painful to most people, and speech discrimination tests may therefore not be possible or reliable. See 64 Fed. Reg. 25209 (May 11, 1999). Additionally, 38 C.F.R. § 4.86(b) provides that if the puretone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz, an evaluation can be based on either Table VI or Table VIA, whichever results in a higher numeric designation, and that designation will then be elevated to the next higher Roman numeral. This provision compensates for a pattern of hearing impairment that is an extreme handicap in the presence of any environmental noise, and a speech discrimination test conducted in a quiet room with amplification of sound does not always reflect the extent of impairment experienced in the ordinary environment. If the use of the word recognition score is not appropriate for the Veteran because of language difficulties, cognitive problems, inconsistent word recognition scores, etc., that make combined use of puretone average and word recognition scores inappropriate, the use of Table VIa is warranted. In support of his claim, the Veteran has submitted a statement from Dr. C.R. in April 2004. In the statement, Dr. C.R. relayed having spoken to the Veteran about his hearing problems going back to his time in service. While Dr. C.R. commented that a “graph” he reviewed showed loss of hearing at with high frequency sounds, the statement indicates that testing was done by another provider and Dr. C.R. did not provide a copy of the graph he was referring to nor include the auditory thresholds at the 1000, 2000, 3000 or 4000 Hz frequencies for either ear or discussed the speech discrimination scores for either ear. As such, even if the Board assumed that Dr. C.R. was a state-licensed audiologist, Dr. C.R.’s statement did not contain the requisite information for the Board to assess the severity of the Veteran’s bilateral hearing loss. In furtherance, of this claim the Veteran has been examined by the VA twice; first in December 2008, then in February 2020. Prior to the December 2008 VA examination, a review of the medical evidence of record produces several audiometric testing results from private and VA health care providers. A December 2003 C.A.H. Hearing Evaluation Report, from a private audiologist provided audiometric testing results for unmasked and masked air conduction and bone conduction as well as speech recognition scores for each ear. Unfortunately, the private audiologist did not indicate whether the speech recognition scores were derived using the Maryland CNC test. Cf. 38C.F.R. §4.85(a). The private audiologist did not mark the puretone threshold result at the 3000 Hz for either ear. Consequently, the Board is unable to determine the applicable Roman numeral designations for each ear given Tables VI and VIA rely on puretone threshold averages. For this reason, the Board is unable to attach any probative weight to the December 2003 C.A.H. Hearing Evaluation Report. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). In September 2004, the Veteran received a VA examination for his hearing impairment. The Audiological evaluation revealed puretone thresholds, in decibels, as follows: HERTZ   1000 2000 3000 4000 AVG RIGHT 20 15 30 30 24 LEFT 25 25 50 45 36 The speech recognition score was 92 percent in the right ear and 72 in the left ear. Utilizing Table VI, the combination of the 24 dB puretone threshold average and the 92 percent speech discrimination for the right ear results in the designation of a Roman numeral I. The combination of the 36 dB puretone threshold average and the 72 percent speech discrimination for the left ear results in the designation of a Roman numeral IV. When the Roman numerals I and IV are applied to Table VII, the resulting percentage evaluation is zero percent. In June 2005, the Veteran received a VA examination for his hearing impairment. The Audiological evaluation revealed puretone thresholds, in decibels, as follows: HERTZ   1000 2000 3000 4000 AVG RIGHT 15 20 30 35 25 LEFT 20 20 40 40 30 The speech recognition score was 96 percent in the right ear and 100 percent in the left ear. Utilizing Table VI, the combination of the 25 dB puretone threshold average and the 96 percent speech discrimination for the right ear results in the designation of a Roman numeral I. The combination of the 30 dB puretone threshold average and the 100 percent speech discrimination for the left ear results in the designation of a Roman numeral I. When the Roman numerals I and I are applied to Table VII, the resulting percentage evaluation is still zero percent. In April 2008, the Veteran received a VA examination for his hearing impairment. The Audiological evaluation revealed puretone thresholds, in decibels, as follows: HERTZ   1000 2000 3000 4000 AVG RIGHT 20 30 40 40 33 LEFT 20 30 40 40 33 The speech recognition score was 90 percent in the right and left ears. Utilizing Table VI, the combination of the 33 dB puretone threshold average and the 90 percent speech discrimination for the right ear results in the designation of a Roman numeral II. The combination of the 33 dB puretone threshold average and the 90 percent speech discrimination for the left ear results in the designation of a Roman numeral II. When the Roman numerals II and II are applied to Table VII, the resulting percentage evaluation remains zero percent In December 2008, the Veteran received a VA examination for his hearing impairment. The Veteran relayed having experiencing hearing loss over many years. He had difficulty understanding speech as well as listening to the television. The Audiological evaluation revealed puretone thresholds, in decibels as follows: HERTZ   1000 2000 3000 4000 AVG RIGHT 20 30 40 40 33 LEFT 20 30 40 40 33 The speech recognition score was 90 percent in the right and left ears. Utilizing Table VI, the combination of the 33 dB puretone threshold average and the 90 percent speech discrimination for the right ear results in the designation of a Roman numeral II. The combination of the 33 dB puretone threshold average and the 90 percent speech discrimination for the left ear results in the designation of a Roman numeral II. When the Roman numerals II and II are applied to Table VII, the resulting percentage evaluation is once more zero percent. Following the December 2008 VA examination, the Veteran did not undergo another audiometric test until May 2013. A May 2013 VA Audiology Evaluation and Management Note supplied the following results: HERTZ   1000 2000 3000 4000 AVG RIGHT 20 35 45 45 36 LEFT 25 30 40 50 36 The speech recognition score was 92 percent in the right and 96 in the left ear. Utilizing Table VI, the combination of the 36 dB puretone threshold average and the 92 percent speech discrimination for the right ear results in the designation of a Roman numeral I. The combination of the 36 dB puretone threshold average and the 96percent speech discrimination for the left ear results in the designation of a Roman numeral I. When the Roman numerals I and I are applied to Table VII, the resulting percentage evaluation is zero percent. The Veteran did not undergo another audiometric test until August 2018. An August 2018 C.D.A. Audiological Evaluation Report from a private audiologist yielded the following results: HERTZ   1000 2000 3000 4000 AVG RIGHT 40 55 65 65 56 LEFT 40 55 65 75 59 The speech recognition score was 96 percent in the right ear and 98 percent in the left ear. Regrettably, this private audiologist did not indicate whether these scores were derived from using the Maryland CNC test. Cf. 38C.F.R. §4.85(a). However, if the Board assumes the private audiologist administered the Maryland CNC test, utilizing Table VI, the combination of the 56 dB puretone threshold average and the 96 percent speech discrimination for the right ear results in the designation of a Roman numeral I. The combination of the 59 dB puretone threshold average and the 98 percent speech discrimination for the left ear results in the designation of a Roman numeral II. When the Roman numerals I and II are applied to Table VII, the resulting percentage evaluation is zero percent. In February 2020, the Veteran received a VA examination for his hearing impairment. The Veteran reported difficulty understanding conversations with background noise, such as competing conversations in the same room or with the television on. The Audiological evaluation revealed puretone thresholds, in decibels as follows: HERTZ   1000 2000 3000 4000 AVG RIGHT 30 40 55 55 45 LEFT 35 35 50 55 44 The speech recognition score was 64 percent in the right and left ears. Utilizing Table VI, the combination of the 45dB puretone threshold average and the 64 percent speech discrimination for the right ear results in the designation of a Roman numeral V. The combination of the 44 dB puretone threshold average and the 64 percent speech discrimination for the left ear results in the designation of a Roman numeral V. This time, when the Roman numerals II and II are applied to Table VII, the resulting percentage evaluation is 20 percent. In contrast, a February 2020 VA Audiology Note from the same date as the above VA examination, recorded the following audiometric test results: HERTZ   1000 2000 3000 4000 AVG RIGHT 30 40 50 55 44 LEFT 40 40 55 55 48 It documented appreciably better speech recognition scores; 90 percent in the right and left ears. Based on these results, utilizing Table VI, the combination of the 44 dB puretone threshold average and the 90 percent speech discrimination for the right ear results in the designation of a Roman numeral II. The combination of the 48 dB puretone threshold average and the 90 percent speech discrimination for the left ear results in the designation of a Roman numeral II. When the Roman numerals II and II are applied to Table VII, the resulting percentage evaluation is zero percent. The Veteran has argued that his hearing loss is more severe than was reflected by his assigned evaluations. Specifically, the Veteran contends that he had difficulty understanding conversations with background noise, such as competing conversations in the same room or with the television on. Although the Veteran is competent to attest to his observations and laypeople may, in some circumstances, opine on questions of diagnosis and etiology, in this case, the Veteran is not competent to diagnose himself with a particular level of hearing impairment. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); see also 38 C.F.R. § 3.159(a)(1) (competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). Specifically, the Veteran is competent to describe observable symptoms and impairments he experiences (e.g., diminished hearing and the use of hearing aids). However, as a lay person, he is unable to provide competent evidence as to the audiometry or measured level of his hearing loss to support a higher disability rating. The Board has considered the conflicting audiometric test results from February 11, 2020. In doing so, the Board notes the Veteran was awarded an increased disability rating based of 20 percent for bilateral hearing loss effective February 11, 2020, the date of the February 2020 examination. See April 2020 Rating Decision. Thus, affording the Veteran the benefit of the doubt, the Board places greater probative weight on the February 11, 2020 Hearing Loss and Tinnitus VA Examination Report. 38 C.F.R. §§ 4.3, 4.7; see also Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). In view of the above, the Board finds the preponderance of the evidence weighs against an initial compensable disability rating at any time prior to February 11, 2020 or an increased disability rating in excess of 20 percent from February 11, 2020 for bilateral hearing loss. See Hart v. Mansfield, 21 Vet. App. 505, 510 (2007). MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Quist 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.