Citation Nr: 21024768 Decision Date: 04/26/21 Archive Date: 04/26/21 DOCKET NO. 17-16 379 DATE: April 26, 2021 ORDER Prior to August 24, 2020, entitlement to an initial compensable rating for a bilateral hearing loss disability is denied. Effective August 24, 2020, entitlement to an initial rating in excess of 20 percent for a bilateral hearing loss disability is denied. FINDINGS OF FACT 1. Prior to August 24, 2020, the Veteran’s bilateral hearing loss disability had no worse than Level II hearing in each ear. 2. Beginning August 24, 2020, the Veteran’s bilateral hearing loss disability demonstrated no worse than Level VI hearing loss in the right ear and Level V hearing loss in the left ear. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial compensable rating prior to August 24, 2020 for a bilateral hearing loss disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.85, 4.86, Diagnostic Code 6100. 2. The criteria for entitlement to an initial rating in excess of 20 percent starting on August 24, 2020 for a bilateral hearing loss disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1967 to February 1973. This appeal comes to the Board of Veterans’ Appeals (Board) from a July 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In August 2019, the Veteran testified during a video conference hearing before the undersigned. A transcript of the hearing is of record. In October 2019, the Board granted service connection for a right ear hearing loss disability and remanded the initial rating assigned for the left ear hearing loss disability. The Board remanded the case in August 2020 and December 2020. 1. Prior to August 24, 2020, entitlement to an initial compensable rating for a bilateral hearing loss disability is denied. 2. Effective August 24, 2020, entitlement to an initial rating in excess of 20 percent for a bilateral hearing loss disability is denied. A disability rating is determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as staged ratings. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The criteria for rating hearing impairment requires the consideration of the results of examinations using controlled speech discrimination tests (Maryland CNC) with the results of pure tone audiometry tests. The results are charted on Table VI and Table VII, as set forth in the Rating Schedule. In order to establish entitlement to a higher rating for hearing loss it must be shown that certain minimum levels of the combination of the percentage of speech discrimination loss and average pure tone decibel loss are met. 38 C.F.R. § 4.85. Hearing tests will be conducted without hearing aids. An exceptional pattern of hearing impairment exists when the pure tone threshold at 1000, 2000, 3000, and 4000 Hertz are each 55 decibels or more, or when the pure tone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz. When this occurs, a different method for rating hearing loss may be used involving Table VIa. 38 C.F.R. § 4.86. On July 2014 VA examination, pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 40 60 75 85 LEFT 30 40 65 75 The average pure tone threshold was 65 in the right ear and 53 in the left ear. The Maryland CNC speech recognition score was 94 percent in each ear. See July 2014 CAPRI records. When the results of the VA examination are input into Table VI, the Veteran is shown to have Level II hearing impairment in the right ear and Level I hearing impairment in the left ear. Where these two levels intersect on Table VII shows that a zero percent rating is assigned. The Veteran also had a private audiogram in July 2014. The audiometry findings are presented in graph form, which the Board may interpret and convert to numerical data in its role as a fact finder as long as the graphical representations are clear. Kelly v. Brown, 7 Vet. App. 471 (1995); Savage v. Shinseki, 24 Vet. App. 259 (2011). Since the graphical representations in this case are clear, the Board can interpret them and to calculate the averages. Here, the pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 65 65 75 85 LEFT 40 45 65 75 The average pure tone threshold was 73 in the right ear and 56 in the left ear. See August 2014 Medical Treatment Record – Non-Government Facility. The testing did not include the Maryland CNC speech recognition test or any other speech recognition test and there is no indication that rating based on threshold averages alone is warranted; therefore, the findings cannot be used for rating purposes. See 38 C.F.R. § 4.85. On December 2016 VA examination, the Veteran reported that he had difficulty having conversations with people if they were not looking at him. He also had to ask them to repeat themselves and kept the volume on the phone and television up high. The pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 40 60 75 95 LEFT 35 50 70 90 The average pure tone threshold was 68 in the right ear and 61 in the left ear. The Maryland CNC speech recognition score was 84 percent in each ear. See December 2016 C&P Exam. When the results of the VA examination are input into Table VI, the Veteran is shown to have Level III hearing impairment in the right ear and Level III hearing impairment in the left ear. Where these two levels intersect on Table VII shows that a zero percent rating is assigned. An August 2019 private audiogram presented in graph form is of poor quality and pertinent aspects are illegible. Although it indicates the pure tone average was 53 in the right ear and 50 in the left and speech discrimination was 100 percent in each ear, it is not suitable for interpretation because it does not indicate which numbers were used to calculate the averages. See August 2019 Correspondence. Furthermore, it does not include a Maryland CNC speech recognition test, so it would not have been suitable for rating purposes. In August 2019, the Veteran testified that he was a youth league soccer coach and that oftentimes he could not hear what the kids were saying if they were not in front of him. He could not watch television with his family or wife because of distortions with his hearing aids and in order to hear it properly he would have to have it too loud for them to sit in the same room with him. He also could not hear what people said and has to ask them to repeat themselves all the time. See August 2019 Hearing Transcript. On December 2019 VA examination, the Veteran reported he had a lot of trouble hearing people, especially on the phone and in noise. The pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 50 65 80 100 LEFT 45 60 70 90 The average pure tone threshold was 74 in the right ear and 66 in the left ear. The Maryland CNC speech recognition score was 96 percent in each ear. See December 2019 C&P Exam. When the results of the VA examination are input into Table VI, the Veteran is shown to have Level II hearing impairment in the right ear and Level II hearing impairment in the left ear. Where these two levels intersect on Table VII shows that a zero percent rating is assigned. Since the VA examinations indicated the Veteran’s hearing was worsening but his word recognition scores were improving, the Board sought an opinion to determine if this represented an inconsistency that would make rating the Veteran’s hearing loss under Table VIA more appropriate. This table provides that when an examiner certifies that use of the speech recognition test is not appropriate because of inconsistent speech discrimination scores then Table VIA will be used. See 38 C.F.R. § 4.85(c). The September 2020 opinion noted that the Veteran’s July 2014 VA examination revealed a bilateral mild sloping to moderate/severe SNHL and speech discrimination scores that were 94 percent bilaterally. The December 2016 VA examination revealed bilateral mild/moderate sloping to severe SNHL and speech discrimination scores that were 84 percent bilaterally. The December 2019 VA examination revealed a bilateral mild/moderate sloping to severe SNHL and speech discrimination scores that were 96 percent bilaterally. A private examination in August 2019 showed speech discrimination scores of 100 percent, bilaterally. The audiologist commented that although on paper it would seem that there is a large statistical difference, according to Thornton and Raffin, the critical difference between the scores is barely significant. The range for a score of 96 percent when performing a 50 word list is from 86 to 100. Given that the 84 percent scores from 2016 are only 2 percent off, the statistical significance is considered only minor; especially considering that all of the other discrimination scores fall within the range of 86 to 100 percent. This would indicate that the scores of 84 percent from 2016 may not have been completely reliable. While none of these scores are consistent with what would be expected for this degree of hearing loss, three separate tests show speech discrimination scores of 94 percent or better. This indicates consistent, reliable results despite a considerable amount of hearing loss. Given the above, the results of the 2019 audio C&P exam are considered to be reliable and should be used for rating purposes. Thornton, A., & Raffin, M. (1978). Speech-discrimination scores modeled as a binomial variable. J Speech Lang Hear Res, 21(3), 507-518. See September 2020 C&P Exam. An August 2020 private audiogram presented in graph form is capable of being interpreted and show pure tone thresholds, in decibels were as follows: (continued on next page) HERTZ 1000 2000 3000 4000 RIGHT 55 70 80 90 LEFT 55 60 75 85 The average pure tone threshold was 74 in the right ear and 69 in the left ear. Speech discrimination was 90 percent in each ear, but the examination does not indicate that the Maryland CNC word recognition test was used. This private audiogram represents an exceptional pattern of hearing loss that can be evaluated either under Table VI or Table VIA, whichever is more advantageous. See 38 C.F.R. § 4.86(a). Because the examination does not include the Maryland CNC word recognition test, which is required for Table VI the Board will evaluate the results under Table VIA. When the pure tone threshold averages of 74 and 69 are applied to Table VIA, it shows Level V hearing in the left ear and Level VI hearing in the right ear. Where these intersect on Table VII shows that a 20 percent rating is assigned. Thus, the criteria for a 20 percent rating, but no higher, are met effective August 24, 2020. A February 2021 VA examination also yielded results consistent with a 20 percent rating. The pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 50 70 80 90 LEFT 50 55 75 80 The average pure tone threshold was 73 in the right ear and 68 in the left ear. The Maryland CNC speech recognition score was 74 percent in the right ear and 76 percent in the left ear. The Veteran reported he was unable to hear the telephone ring in bed with his left ear on the pillow. He had to watch television with the volume up and had more difficulty hearing the voices of women and children. See December 2019 C&P Exam. When the results of the VA examination are input into Table VI, the Veteran is shown to have Level VI hearing impairment in the right ear and Level IV hearing impairment in the left ear. Where these two levels intersect on Table VII shows that a 20 percent rating is assigned. While the Board acknowledges that the Veteran’s bilateral hearing loss offers some challenges in communication, his hearing evaluations do not demonstrate his hearing loss is at a compensable level prior to August 24, 2020 or in excess of 20 percent beginning on that date. Further, it has not been shown that his hearing loss affects him in a way not contemplated by the rating criteria. Thus, a preponderance of the evidence is against the claim. S. HENEKS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Bredehorst 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.