Citation Nr: 21023938 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 16-47 299 DATE: April 21, 2021 ORDER Entitlement to an effective date of December 1, 2016, but no earlier, for a 90 percent rating for bilateral hearing loss, is granted, subject to controlling regulations governing the payment of monetary awards. FINDING OF FACT The lay and medical evidence of record reflects that it was factually ascertainable that the Veteran’s bilateral hearing loss worsened from December 1, 2016. CONCLUSION OF LAW An effective date of December 1, 2016, for the grant of a 90 percent rating for bilateral hearing loss, is warranted. 38 U.S.C. § 1155, 5107 (2012); 38 C.F.R. §§  4.1, 4.2, 4.7, 4.85, 4.86, DC 6100 (2021). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1961 to November 1963. This matter initially came before the Board of Veterans’ Appeals (Board) on appeal from a March 2015 rating decision from the Regional Office (RO) of VA. In that decision, the RO denied the Veteran’s claim for an increased rating for his bilateral hearing loss disability, among other claims. This appeal has been advanced on the Board’s docket. In March 2018, the Board remanded the matter to afford the Veteran a new VA examination. In an April 2020 rating decision, the Agency of Original Jurisdiction (AOJ) awarded an increased evaluation for bilateral hearing loss, from 20 percent to 90 percent, effective from September 11, 2019. This created a staged rating. The Veteran has argued that he is entitled to an earlier effective date and the Board agrees. The issue can be characterized as entitlement to a 90 percent rating for hearing loss prior to September 11, 2019 or entitlement to an earlier effective date for a 90 percent rating for bilateral hearing loss. The Veteran timely disagreed when an increased rating for hearing loss was denied and continued to disagree when the increased, 90 percent rating was granted effective September 11, 2019. There is therefore no issue as to an improper freestanding earlier effective date claim. Cf. Rudd v. Nicholson, 20 Vet. App. 296 (2006) In June 2020, the Board remanded the matter to the AOJ to obtain the audiological examination and report from the February 2014 and November 2016 audiological examinations and then readjudicate the claim on appeal. In December 2020, the Board remanded the matter to the AOJ to obtain the November 2016 VA audiological examination and report, associate the audiological examination and report with the claims file and then readjudicate the claim. The agency of original jurisdiction complied with these instructions by attempting to obtain the relevant documents. Stegall v. West, 11 Vet. App. 268 (1998). Increased Rating Disability evaluations are determined by the application of rating criteria set forth in the VA Schedule for Rating Disabilities (38 C.F.R. Part 4) based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155. 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. 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. 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. Hart v. Mansfield, 21 Vet. App. 505 (2007) (citing Fenderson v. West, 12 Vet. App. 119, 126 (1999)). Bilateral Hearing Loss To evaluate the degree of disability from defective hearing, the Rating Schedule establishes 11 auditory acuity levels from Level I for essentially normal acuity through Level XI for profound deafness. These are assigned based on a combination of the percent of speech discrimination and the pure tone threshold average, as contained in a series of tables within the regulations. 38 C.F.R. § 4.85 (b). The “pure tone threshold average” is the sum of the pure tone thresholds at 1000, 2000, 3000, and 4000 Hertz, divided by four. This average is used in all cases to determine the Roman numeral designation for hearing impairment from Table VI or VIA. 38 C.F.R. § 4.85 (d). Table VIA, “Numeric Designation of Hearing Impairment Based Only on Pure tone Threshold Average,” is used to determine a Roman numeral designation (I through XI) for hearing impairment based only on the pure tone threshold average. Table VIA will be used when the examiner certifies that the use of speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc., or when indicated under the provisions of section 4.86. 38 C.F.R. § 4.85 (c). Table VII, “Percentage Evaluations for Hearing Impairment,” is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment of each ear. The horizontal rows represent the ear having the better hearing and the vertical columns the ear having the poorer hearing. The percentage evaluation is located at the point where the row and column intersect. 38 C.F.R. § 4.85 (e). The regulatory provisions also provide two additional circumstances under which alternative tables can be employed. One is where the pure tone thresholds in the four frequencies of 1,000, 2,000, 3,000, and 4,000 Hertz are 55 decibels or greater. The second is where pure tone thresholds are 30 decibels or less at frequencies of 1,000 Hertz and below and are 70 decibels or more at 2,000 Hertz. See 38 C.F.R. § 4.86. The Veteran’s claim for an increased rating for his hearing loss was filed on April 30, 2014. He has argued in his written statements most recently in February 2021, that his hearing deteriorated in “the three years between late 2016 and 2019.” He challenges the results of the November 2016 VA examination, reflecting results that warrant a 20 percent rating under the criteria, because of the manner in which it was conducted. There was also a February 2014 VA audiological examination with results in graph format, which would similarly warrant a 20 percent rating. In Swain v. McDonald, 27 Vet. App. 219, 224 (2015), the Court addressed a similar situation, in which VA had assigned the effective date based on a mechanical reading of 38 C.F.R. § 4.85(a), rather than applying the general earlier effective date rules which generally provide for assignment of an effective date based on the “facts found,” and for increased rating claims the earliest date a disability or an increase in disability is ascertainable or to the date the claim was received, whichever is later (citing 38 U.S.C. § 5110(b)(3); 38 C.F.R. § 3.400(o)(2)). Given the Veteran’s competent, credible, and consistent statements that his hearing worsened from late 2016 and 2019, and the fact that there is no evidence that his hearing loss suddenly worsened on the September 2019 VA examination, the Board finds the Veteran’s contentions persuasive pursuant to Swain. While the Board appreciates the Veteran’s challenge to the November 2016 VA examination, it cannot ignore the results of that examination and the Veteran has not precisely indicated the time frame in “late 2016” to which he refers. Thus, the Board finds that an effective date of December 1, 2016, for the 90 percent rating for the Veteran’s bilateral hearing loss is warranted. On the November 2016 examination, pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 60 65 75 75 69 LEFT 55 65 70 70 65 Maryland CNC speech recognition scores were 84 percent in the right ear and 84 percent in the left ear. With application of the above test results to 38 C.F.R. § 4.85, Table VI, and Table VII, the Veteran’s right ear hearing loss is assigned a numeric designation of III, and the left ear hearing loss is assigned a numeric designation of III. These test scores reflect when applied to Table VII that the Veteran meets the criteria for a noncompensable rating for the Veteran’s bilateral hearing loss. However, as the puretone threshold at each frequency were 55 decibels or more in each ear, the Board will also consider Table VIA for exceptional patterns of hearing impairment. 38 C.F.R. § 4.86. Pursuant to that table, the Veteran’s right ear is assigned Roman Numeral V and the left ear is assigned Roman Numeral V. While combining these scores under Table VII yields a noncompensable. These test scores reflect when applied to Table VIA that the Veteran meets the criteria for a 20 percent rating, but no higher, for his bilateral hearing loss. On the September 2019 VA audiological examination, pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 80 80 75 95 83 LEFT 70 85 85 95 84 Maryland CNC speech recognition scores were 32 percent in the right ear and 42 percent in the left ear. With application of the above test results to 38 C.F.R. § 4.85, Table VI, and Table VII, the Veteran’s right ear hearing loss is assigned a numeric designation of XI, and the left ear hearing loss is assigned a numeric designation of X. These test scores reflect when applied to Table VII that the Veteran meets the criteria for a 90 percent rating, but no higher, for his bilateral hearing loss. For the foregoing reasons, the preponderance of the evidence is against a rating higher than 90 percent for bilateral hearing loss from September 11, 2019. The Board reiterates that the above audiometric results do not show an increase until September 2019. However, pursuant to Swain, reviewing all of the evidence, including the Veteran’s competent, credible, and consistent statements, warrants the conclusion that it is factually ascertainable that the worsening occurred from December 1, 2016. To the extent the Veteran requests an even earlier effective date, the Board is sympathetic to his criticism of how the November 2016 VA examination was conducted, but the Court has generally upheld VA’s policy with regard to audiometric testing and there is not enough information to essentially go back in time and reinterpret the November 2016 VA audiological examination. Martinak v. Nicholson, 21 Vet. App. 447 (2007). In addition, the grant of an earlier effective date of December 1, 2016 appears to satisfy the Veteran’s request for acknowledgment of worsening from “late 2016.” The Board has attempted to maximize the Veteran’s benefits consistent with the law and regulations as interpreted by the Court. See Morgan v. Wilkie, 31 Vet. App. 162, 167 (2018) (discussing VA’s duty to maximize benefits); 38 C.F.R. § 3.103(a) (VA must render a decision which grants every benefit that can be supported in law while protecting the interests of the Government); 38 U.S.C. § 7104(c) (2012); 38 C.F.R. § 20.105 (2020) (the Board is bound by the laws and regulations that apply to veterans claims) Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Henderson, 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.