Citation Nr: 21025073 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 15-12 753 DATE: April 27, 2021 THE ISSUE Entitlement to a compensable disability rating prior to November 20, 2019, and a rating in excess of 20 percent thereafter for a bilateral hearing loss disability. ORDER Entitlement to a compensable disability rating prior to November 20, 2019, and a rating in excess of 20 percent thereafter for a bilateral hearing loss disability is denied. FINDINGS OF FACT 1. For the period prior to November 20, 2019, audiometric evaluations did not show a level of hearing loss disability worse than Level I hearing acuity in the right ear and Level V hearing acuity in the left ear. 2. From November 20, 2019, audiometric evaluations did not show a level of hearing loss disability worse than Level IV hearing acuity in the right ear and Level III hearing acuity in the left ear. CONCLUSIONS OF LAW The criteria for a compensable disability rating, for the period prior to November 20, 2019 and in excess of 20 percent thereafter for a bilateral hearing loss disability have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.159, §§ 4.1, 4.2, 4.3, 4.7, 4.15, 4.130, Diagnostic Code 6100 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from June 1969 to September 1970. This matter comes before the Board of Veterans Appeals (Board) from a January 2015 rating decision issued by the Department of Veterans Affairs Regional Office (RO) in Lincoln, Nebraska. In July 2018, the Veteran testified in front of the undersigned Veteran Law Judge (VLJ) via live video conference sitting in Lincoln, Nebraska. A transcript of the proceeding has been associated with the record. This matter was previously before the Board in December 2018 at which time it was remanded, along with issues of entitlement to service connection for a lumbar spine disorder, bilateral knee disorder, bilateral hip disorder, bilateral foot disorder, and bilateral ankle disorder. In a subsequent June 2020 rating decision, the RO granted each of the Veteran’s service connection claims. Therefore, those claims are no longer before the Board. Additionally, the RO granted an increased rating of 20 percent for bilateral hearing loss effective November 20, 2019. As the increase does not represent a full grant of the benefits sought, as it does not extend throughout the claims period, the claim remains before the Board. See AB v. Brown, 6 Vet. App. 35 (1993). For the reasons listed below, the Board finds that there has been substantial compliance with its remand directions. See Stegall v. West, 11 Vet. App. 268, 270-71 (1998). Entitlement to a compensable disability rating prior to November 20, 2019, and a rating in excess of 20 percent thereafter for a bilateral hearing loss disability is denied. Disability evaluations are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) at 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 the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321 (a), 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1 (2013); Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). That said, higher evaluations may be assigned for separate periods based on the facts found during the appeal period. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). This practice is known as staged ratings. Id. 38 U.S.C. § 1154 (a) requires that the VA give “due consideration” to “all pertinent medical and lay evidence” in evaluating a claim to disability benefits. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). When analyzing lay evidence, the Board should assess the evidence and determine whether the disability claimed is of the type for which lay evidence is competent. See Davidson, 581 F.3d at 1313; Kahana v. Shinseki, 24 Vet. App. 428 (2011). If the evidence for and against a claim is in equipoise, the claim will be granted. 38 C.F.R. § 4.3. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. 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 required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. A rating for bilateral hearing loss is determined by a mechanical application of the rating schedule to the numeric designations assigned based on audiometric test results. Lendenmann v. Principi, 3 Vet. App. 345 (1992). Under the rating criteria, the basic method of rating bilateral hearing loss is based on examination results including a controlled speech discrimination test (Maryland CNC), and a pure tone audiometric test of pure tone decibel thresholds at 1000, 2000, 3000, and 4000 Hz with an average pure tone threshold obtained by dividing these thresholds by four. Once these test results have been obtained, employing Table VI, a Roman numeral designation of auditory acuity level for hearing impairment is ascertained based on a combination of the percent of speech discrimination and pure tone threshold average. Once a Roman numeral designation of auditory acuity level for each ear has been determined, Table VII is used to determine the percentage evaluation for bilateral hearing loss by combining the Roman numeral designations of auditory acuity level for hearing impairment of each ear. 38 C.F.R. § 4.85 (2018). There is an alternative method of rating hearing loss in defined instances of exceptional hearing loss. In such exceptional cases, the Roman numeral designation for hearing loss of an ear may be based only on pure tone threshold average, using Table VIA, or from Table VI, whichever results in the higher Roman numeral. Exceptional hearing exists when the pure tone threshold at the frequencies of 1000, 2000, 3000, and 4000 Hertz is 55 decibels or more; or where the pure tone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz. The higher Roman numeral determined from Table VI or VIA, will then be elevated to the next higher Roman numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86. The Veteran filed his current claim for an increased disability rating for bilateral hearing loss in August 2014. The appellant contends that the Veteran is entitled to an increased disability rating for his bilateral hearing loss disability during the entire period on appeal. The period prior to November 20, 2019. The Board finds that there are no objective clinical findings to warrant a compensable disability rating for the period prior to November 20, 2019. The Veteran afforded a VA audiological examination in October 2014. Results were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 20 30 70 80 LEFT 20 20 65 80 80 Speech audiometry results using the Maryland CNC were 96 percent for the right ear and 84 percent for the left ear. The Veteran’s hearing impairment was manifested by Level I hearing acuity in the right ear and Level III hearing acuity in the left ear. These results were consistent with a noncompensable disabling rating. 38 C.F.R. § 4.8, Table VII, Diagnostic Code 6100. The Veteran afforded a VA audiological examination in August 2015. Results were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 25 25 70 70 LEFT 25 25 70 80 80 Speech audiometry results using the Maryland CNC were 96 percent bilaterally. As the Veteran’s right ear audiological results are less than 30 in the at 1000 Herts bilaterally, and at least 70 decibels at 2000 Hertz, the Board notes that the Veteran’s hearing presents an exceptional pattern as contemplated by 38 C.F.R. § 4.86 (a)(b). Application of Table VI results in hearing impairment of Level I in the right ear and Level II in the left ear. The Veteran’s hearing impairment was manifested by Level V hearing acuity in the left ear under Table VIa. These results are consistent with the Veteran’s assigned noncompensable rating. 38 C.F.R. § 4.8, Table VII, Diagnostic Code 6100. As was indicated earlier in this decision, rating a hearing loss disability involves the mechanical application of rating criteria to the results of specified audiometric studies. The Board does not discount the difficulties the Veteran has with his hearing acuity, and acknowledges his testimony in the July 2018 Board hearing in which the he complained of decreased hearing. However, schedular disability ratings for hearing loss are based on the results of the audiological studies of record. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). The evidence of record indicates that the Veteran’s hearing loss is consistent with his original noncompensable percent rating for the period prior to November 20, 2019. See 38 C.F.R. § 4.85. In addition, as noted above, the provisions 38 C.F.R. § 4.86 (a)(b) have been applied, but do not result in an increased disability rating. All potentially applicable codes have been considered, and there is no basis to assign a compensable disability rating for the period prior to November 20, 2019 for the Veteran’s bilateral hearing loss. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). Based on the foregoing, the Board finds that a compensable rating for the period prior to November 20, 2019 is not warranted. The period from November 20, 2019. In December 2018, the Board remanded the matter in order to afford the Veteran a new VA audiological examination based on the Veteran’s testimony at the July 2018 Board hearing in which the Veteran claimed his hearing disability had worsened since the last evaluation. The Veteran was afforded such a VA audiological examination on November 20, 2019. The results from the November 2019 VA audiological examination were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 25 70 75 75 LEFT 20 25 75 80 75 Speech audiometry results using the Maryland CNC were 98 percent bilaterally. As the Veteran’s audiological results are less than 30 in the at 1000 Herts bilaterally, and at least 70 decibels at 2000 Hertz bilaterally, the Board notes that the Veteran’s hearing presents an exceptional pattern as contemplated by 38 C.F.R. § 4.86 (a)(b). Application of Table VI results in hearing impairment of Level II bilaterally. The Veteran’s hearing impairment was manifested by Level IV hearing acuity in the right ear and Level V hearing acuity in the left ear under table VIa. Neither of these results are consistent with a disability rating in excess of 20 percent. 38 C.F.R. § 4.8, Table VII, Diagnostic Code 6100. Indeed, it appears these values are consistent with a 10 percent disability rating. Id. As indicated, rating a hearing loss disability involves the mechanical application of rating criteria to the results of specified audiometric studies. The Board does not discount the difficulties the Veteran has with his hearing acuity, and acknowledges his testimony in the July 2018 Board hearing in which the he complained of decreased hearing. However, schedular disability ratings for hearing loss are based on the results of the audiological studies of record. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). The evidence of record indicates that the Veteran’s hearing loss is not consistent with a disability rating in excess of 20 percent for the period from November 20, 2019. See 38 C.F.R. § 4.85. In addition, the Board has considered both Table VI and VIa, however, neither application yields a higher disability rating. 38 C.F.R. § 4.86 (a)(b). All potentially applicable codes have been considered, and there is no basis to assign an evaluation in excess of 20 percent for the period from November 20, 2019for the Veteran’s bilateral hearing loss. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). Based on the foregoing, the Board finds that a rating in excess of 20 percent for the period from November 20, 2019 is not warranted. Michael A. Pappas Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. E. Geary, 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.