Citation Nr: 21023334 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 16-25 080 DATE: April 20, 2021 ORDER An initial evaluation of 10 percent, but not in excess thereof, for bilateral hearing loss prior to December 14, 2019 is granted. An evaluation in excess of 10 percent for bilateral hearing loss from December 14, 2019 is denied. FINDINGS OF FACT 1. Prior to December 14, 2019, the Veteran exhibited Level IV hearing loss in his left ear and Level V hearing loss in his right ear. 2. From December 14, 2019, the Veteran exhibited no worse than Level IV hearing loss in his left ear and Level V hearing loss in his right ear. CONCLUSIONS OF LAW 1. The criteria for an initial evaluation of 10 percent, but not in excess thereof, for bilateral hearing loss prior to December 14, 2019 are met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100 (2020). 2. The criteria for an evaluation in excess of 10 percent for bilateral hearing loss from December 14, 2019 are not met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1970 to February 1972. This appeal is before the Board of Veterans’ Appeals (Board) from a June 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Newnan, Georgia. In November 2019, the Board remanded the Veteran’s appeal with instruction to provide a current VA examination. He underwent another examination in December 2019. The remand also instructed development on the issue of entitlement to service connection for posttraumatic stress disorder (PTSD), which was granted in full by a May 2020 rating decision and is therefore no longer before the Board. The Board is therefore satisfied that the instructions in its November 2019 remand have been satisfactorily complied with. See Stegall v. West, 11 Vet. App. 268 (1998). 1. Entitlement to an initial compensable evaluation for bilateral hearing loss prior to December 14, 2019 2. Entitlement to an evaluation in excess of 10 percent for bilateral hearing loss from December 14, 2019 The Veteran claims an increase to his rating for bilateral hearing loss. Disability evaluations are determined by application of the criteria set forth in the 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. An evaluation of the level of disability present must also include consideration of the functional impairment of the Veteran’s ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. “Staged” ratings are appropriate for any rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). 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 the 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 to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). 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. 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 pure tone audiometry test. 38 C.F.R. § 4.85. Evaluations of bilateral hearing loss range from noncompensable to 100 percent based on an organic impairment of hearing acuity, as measured by controlled speech discrimination tests in conjunction with the average hearing threshold, as measured by pure tone audiometric tests in the frequencies of 1000, 2000, 3000 and 4000 cycles per second. The rating schedule establishes 11 auditory acuity Levels designated from Level I for essentially normal hearing acuity through Level XI for profound deafness. VA audiological evaluations are conducted using a controlled speech discrimination test together with the results of pure tone audiometry tests. The vertical line in Table VI (printed in 38 C.F.R. § 4.85) represents nine categories of the percentage of discrimination based on a controlled speech discrimination test. The horizontal columns in Table VI represent 9 categories of decibel loss based on the pure tone audiometry test. The numeric designation of impaired hearing (Levels I through XI) is determined for each ear by intersecting the vertical row appropriate for the percentage of discrimination and the horizontal column appropriate to the pure tone decibel loss. The percentage evaluation is found from Table VII in 38 C.F.R. § 4.85 by intersecting the vertical column appropriate for the numeric designation for the ear having the better hearing acuity and the horizontal row appropriate for the numeric designation for the level for the ear having the poorer hearing acuity. For example, if the better ear had a numeric designation of Level V and the poorer ear had a numeric designation of Level VII the percentage evaluation is 30 percent. See 38 C.F.R. § 4.85. Regulations also provide that in cases of exceptional hearing loss, i.e., when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000 and 4000 hertz) 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 will be evaluated separately. 38 C.F.R. § 4.86(a). The provisions of 38 C.F.R. § 4.86(b) further provide that when the pure tone threshold is 30 decibels or less at 1000 hertz and 70 decibels or more at 2000, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or VIa, whichever results in the higher numeral. That numeral will then be evaluated to the next higher Roman numeral. VA treatment records reflect that in September 2013 the Veteran reported longstanding hearing loss most noticeable over the prior two years. He was diagnosed with steeply sloping bilateral sensorineural hearing loss, mild to profound. Specific pure tone thresholds were not provided. Speech recognition was 76 percent in the right ear and 92 percent in the left ear. In a September 2014 statement associated with his formal claim, the Veteran reported daily use of hearing aids. The Veteran underwent a VA examination in April 2015. He reported that he was not hearing sounds that he should. Pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 45 70 85 105 76.25 LEFT 45 55 90 100 72.5 Speech audiometry revealed speech recognition ability of 86 percent in the right ear and 88 percent in the left ear. He was diagnosed with bilateral mixed hearing loss. In his June 2015 notice of disagreement, the Veteran reported that he wears hearing aids. In his May 2016 substantive appeal, he stated that his VA hearing tests showed high hearing loss. In June 2016, his representative stated that his hearing loss had been characterized as moderate to severe and requested a new examination to show current level of hearing loss. The Veteran underwent another VA examination on December 14, 2019. Pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 50 55 85 100 72.5 LEFT 25 45 85 105 65 Speech audiometry revealed speech recognition ability of 80 percent in the right ear and 82 percent in the left ear. He was diagnosed with bilateral sensorineural hearing loss. The Board finds that staging is not appropriate for the Veteran’s hearing loss evaluation. After his April 2015 VA examination, he requested a new examination due to worsening in June 2016. His increase is currently effective the date of his December 2019 VA examination. While the objective measurements in December 2019 meet the criteria for a 10 percent rating, this is due to a drop in speech recognition despite an improvement in pure tone thresholds. In the right ear, such measurements indicate minimal worsening only to the extent that the speech recognition score from September 2013 VA treatment records are ignored. As such, the Board affords all benefit of the doubt to the Veteran and takes his most severe pure tone thresholds matched with his most severe speech recognition scores, assigning a single rating to the entirety of the appeal period. In the right ear, this yields a threshold average of 76.25 and a speech recognition score of 76 percent, which constitutes Level V hearing loss. In the left ear, this yields a threshold average of 72.5 and a speech recognition score of 82 percent, which constitutes Level IV hearing loss. At no time did the Veteran meet the criteria for exceptional hearing loss under 38 C.F.R. § 4.86. His Level IV and Level V hearing loss thus warrant a 10 percent rating under Table VII for the entirety of the appeal period. A 10 percent rating is therefore granted prior to December 14, 2019, and a rating in excess of 10 percent is denied for all periods. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Gallagher, 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.