Citation Nr: 21023380 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 18-15 832 DATE: April 20, 2021 ORDER Entitlement to a compensable rating, prior to January 21, 2020, for service-connected bilateral sensorineural hearing loss is denied. Entitlement to a disability rating in excess of 10 percent since January 21, 2020, for service-connected bilateral sensorineural hearing loss is denied. FINDINGS OF FACT 1. Prior to January 21, 2020, the Veteran’s bilateral sensorineural hearing loss has been manifested by auditory acuity no worse than Level II hearing impairment for the right ear and Level IV hearing impairment for the left ear. 2. Since January 21, 2020, the Veteran’s bilateral sensorineural hearing loss has been manifested by auditory acuity no worse than a Level IV hearing impairment for the right ear and a Level IV hearing impairment for the left ear. CONCLUSIONS OF LAW 1. Prior to January 21, 2020, the criteria for a compensable rating for bilateral sensorineural hearing loss have not been met. 38 U.S.C.§§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.85, 4.86, Diagnostic Code (DC) 6100. 2. Since January 21, 2020, the criteria for a disability rating in excess of 10 percent for bilateral sensorineural hearing loss have not been met. 38 U.S.C.§§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.85, 4.86, DC 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from September 1966 to September 1970. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2017 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The matter last appeared before the Board in December 2019, at which time the issue was remanded for further development. In a December 2019 rating decision, the Veteran’s bilateral hearing loss was increased to a 10 percent disability rating, effective January 21, 2020. As a preliminary matter, the Board notes that in his March 2018 formal appeal to the Board, the Veteran stated that he has shown continual bilateral hearing loss since his claim originated. He stated that he had numerous examinations showing decibel hearing loss, especially in his right ear. He stated that at a recent November 2017 evaluation he was issued hearing aids and a private October 2017 evaluation showed severe decibel hearing loss. The Veteran contends that he is entitled to the highest possible compensatory level or at least 20 percent. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Generally, the effective date of an award of an increased rating is the date of receipt of a claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. If the earlier date that the claimed increase in disability had occurred was factually ascertainable based on all evidence of record within one year prior to the receipt of claim, the effective date is the date such increase occurred. 38 C.F.R. § 3.400(o)(2). Separate ratings may be assigned for separate periods of time based on the facts found, a practice known as “staged” ratings. 38 C.F.R. § 4.2. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. Whether the upper or lower extremities, the back or abdominal wall, the eyes or ears, or the cardiovascular, digestive, or other system, or psyche are affected, evaluations are based upon lack of usefulness, of these parts or systems, especially in self-support. This imposes upon the medical examiner the responsibility of furnishing, in addition to the etiological, anatomical, pathological, laboratory and prognostic data required for ordinary medical classification, full description of the effects of disability upon the person’s ordinary activity. 38 C.F.R. § 4.10. Evaluations of defective hearing are based on organic impairment of hearing acuity, as measured by the results of controlled speech discrimination testing (the Maryland consonant-vowel nucleus-consonant (CNC)), together with the average hearing threshold level, as measured by puretone audiometry tests, in the frequencies 1,000, 2,000, 3,000 and 4,000 Hertz. See 38 C.F.R. § 4.85, DC 6100. To evaluate the degree of disability from defective hearing, the rating schedule requires assignment of a Roman numeral designation, ranging from I to XI. Id. Pursuant to the VA rating schedule, the assignment of a disability rating for hearing impairment is derived by a purely mechanical application of the rating schedule to the numeric designations derived from the results of audiometric evaluations. Martinak v. Nicholson, 21 Vet. App. 447 (2007). Examination reports are required to include full descriptions of the functional effects caused by a hearing disability. Id. at 455. To evaluate the degree of disability from bilateral service-connected hearing loss, the schedule establishes 11 auditory hearing acuity levels designated from Level I for essentially normal hearing acuity through Level XI for profound deafness. 38 C.F.R. § 4.85, Tables VI and VII. An exceptional pattern of hearing impairment occurs when the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more. 38 C.F.R. § 4.86(a). In that situation, 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. Further, when the average pure tone threshold is 30 decibels or less at 1000 Hertz, 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, and that numeral will then be elevated to the next higher numeral. 38 C.F.R. § 4.86(b). When there is a question as to which of two ratings apply, VA will assign the higher of the two where the disability picture more nearly approximates the criteria for the next higher rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. 1. Entitlement to a compensable rating, prior to January 21, 2020, for service-connected bilateral sensorineural hearing loss is denied. Turning to the evidence of record, the Veteran underwent an in-person VA examination in May 2017 at which time the examiner confirmed a diagnosis of sensorineural bilateral hearing loss. The Veteran reported that his wife gets frustrated with him because he doesn't hear her well. He has to turn up the TV quite loud. He also has a hard time hearing in background noise and frequently has difficulty understanding conversations. The Veteran’s Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows:   HERTZ        1000  2000  3000  4000  Avg  CNC  RIGHT  40 60 65 70 59 96%  LEFT  55 60 65 65 61 94%  Applying the results to Table VI, the findings yield a numeric designation of Level II in the right ear and Level II in the left ear. Entering the resulting bilateral numeric designation of Level II for the right ear and Level II for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a 0 percent disability rating under DC 6100. The Board acknowledges that there is an exceptional pattern of hearing impairment in the left ear as the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more. 38 C.F.R. § 4.86(a). As such, applying the May 2017 left ear puretone threshold results to Table VIA, the finding yields a Level IV in the left ear. Entering the resulting bilateral numeric designation of Level IV for the poorer left ear and Level II for the right ear to 38 C.F.R. § 4.85, Table VII, equates to a 0 percent disability rating under DC 6100. The Board notes that although the Veteran’s right ear puretone threshold testing reveals three frequencies of 55 decibels or more at 2000, 3000, and 4000 Hertz, the requirements for an exceptional pattern of hearing impairment of four specified frequencies (1000, 2000, 3000, and 4000 Hertz) at 55 decibels or more in the right ear, are not met as the puretone threshold at the frequency of 1000 Hertz is not 55 decibels or more. 38 C.F.R. § 4.86(a). Neither does the Veteran’s puretone threshold testing reveal results of 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz in either ear. 38 C.F.R. § 4.86(b). As such, the May 2017 hearing thresholds only reflect an exceptional pattern of hearing impairment in the left ear to warrant consideration under 38 C.F.R. § 4.85 Table VIA, of which the Board has applied. See 38 C.F.R. §§ 4.85 DC 6100, 4.86. The May 2017 examiner remarked that recent otologic history is unremarkable and noted that when comparing the examination results to those of the July 2015 examination, there has been a significant change in hearing at 6-8 kHz in the left ear and at .5 and 4 kHz in the right ear. The record also reflects that the Veteran submitted June 2016 and October 2017 private treatment audiometric evaluations. 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). The records do not reflect that the evaluations were performed by a state-licensed audiologist nor that they include a controlled speech discrimination test (Maryland CNC) and a puretone audiometry test for VA ratings purposes. 38 C.F.R. § 4.85(a). The record reflects that an audiological evaluation was performed in November 2017 at a VA medical center (VAMC). The evaluation does not report a controlled speech discrimination test (Maryland CNC) result. Hence, the November 2017 audiological evaluation results are inadequate for VA ratings purposes. 38 C.F.R. § 4.85(a). The audiology note reflects the Veteran’s report of sudden hearing loss in the right ear in August 2017. The examiner noted that the Veteran was referred to an ear, nose and throat (ENT) specialist due to sudden hearing loss and an October 2017 audiogram was performed revealing severe to profound mixed hearing loss in the right ear and mild to moderately severe sensorineural hearing loss in the left ear. The examiner noted that magnetic resonance imaging (MRI) was performed and revealed possible fluid/ middle ear involvement. The examiner further noted that the Veteran reported a pressure equalization (PE) tube was placed in his right ear by ENT in November 2017. The examiner remarked that the Veteran denied significant improvement to hearing sensitivity following PE tube placement. However, the examiner noted a significant improvement to hearing sensitivity noted across all frequencies in the right ear when compared to most recent October 2017 audiogram. The record reflects evidence of an audiological evaluation that was performed in December 2018 at a VAMC. The examiner noted word recognition score of 76 percent in the right ear and 64 percent in the left ear, however, they were reported to be NU-5 and not a controlled speech discrimination test (Maryland CNC) result. Hence, the December 2018 audiological evaluation results are also inadequate for VA ratings purposes. 38 C.F.R. § 4.85(a). The record further reflects an audiology note indicating that the Veteran had a PE tubed place on right tympanic membrane in 2017, was issued and utilized binaural amplification hearing aids in 2017, and had a subjective decrease in hearing sensitivity since the 2017 evaluation. The examiner noted that the Veteran had stable hearing sensitivity since last evaluation in 2017, and to have his hearing reevaluated in 2 years or sooner if any changes/concerns arise or if requested by ENT. The Board has further considered the notes regarding the June 2016, October 2017, November 2017, and December 2018 audiological evaluations. Although there are objective findings regarding the Veteran’s hearing loss in these evaluations, the examinations are inadequate for VA ratings purposes. 38 C.F.R. § 4.85. As such, the Board finds that at no time prior to January 20, 2020, is the Veteran’s bilateral hearing loss shown to have been manifested by auditory acuity worse than Level II for the right ear and Level IV for the left ear, which equates to a 0 percent rating. 38 C.F.R. § 4.85. Additionally, November 2017 examiner noted a significant improvement to hearing sensitivity noted across all frequencies in the Veteran’s right ear when compared to most recent October 2017 audiogram. Further, the December 2018 examiner noted that the Veteran had stable hearing sensitivity since last evaluation in 2017. Hence, the preponderance of the evidence is against a finding that the Veteran’s bilateral hearing loss manifested to a compensable degree prior to January 21, 2020. See 38 C.F.R. §§ 4.7, 4.85, 4.86, DC 6100. The Board has considered the applicability of the benefit of the doubt doctrine, but as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.85, 4.86. 2. Entitlement to a disability rating in excess of 10 percent since January 21, 2020, for service-connected bilateral sensorineural hearing loss is denied. The Veteran underwent a VA examination in January 2020. The Veteran noted that he can’t hear if not looking at the speaker. Upon examination, the Veteran’s Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows:   HERTZ        1000  2000  3000  4000  Avg  CNC  RIGHT  50 55 60 65 58 80%  LEFT  60 50 60 55 56 80%  Applying the results to Table VI, the findings yield a numeric designation of Level IV in the right ear and Level IV in the left ear. Entering the resulting bilateral numeric designation of Level IV for the right ear and Level IV for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a 10 percent disability rating under DC 6100. The Board notes that although the Veteran’s right and left ears puretone threshold testing reveals three frequencies of 55 decibels or more, the requirements for an exceptional pattern of hearing impairment require 55 decibel or more of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz). 38 C.F.R. § 4.86(a). Additionally, the Board notes that the Veteran’s puretone threshold testing does not reveal results of 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz in either ear, for the alternate exception pattern of hearing application. 38 C.F.R. § 4.86(b). (Continued on the next page)   As such, the Board finds that at no time since January 21, 2020, is the Veteran’s bilateral hearing loss shown to have been manifested by auditory acuity worse than Level IV for the right ear and Level IV for the left ear, which equates to a 10 percent rating. 38 C.F.R. § 4.85. Hence, the preponderance of the evidence is against a finding that the Veteran’s bilateral hearing loss is in excess of the 10 percent disability rating assigned since January 21, 2020. See 38 C.F.R. §§ 4.7, 4.85, 4.86, DC 6100. The Board is cognizant of the Veteran’s general contentions concerning his difficulty hearing. The schedular criteria for hearing loss contemplates the functional effects of difficulty hearing and understanding speech. Doucette v. Shulkin, 28 Vet. App. 366, 369–70 (2017). The Board has considered the applicability of the benefit of the doubt doctrine, but as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.85, 4.86. A. J. Spector Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Q. Alli, 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.