Citation Nr: 21025110 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 16-18 817 DATE: April 27, 2021 ORDER Entitlement to a compensable rating for bilateral hearing loss prior to June 2, 2016 and to a rating in excess of 10 percent from that date is denied. FINDINGS OF FACT 1. At no time, from December 17, 2014 through June 1, 2016, is the Veteran’s hearing acuity shown to have been worse than Level II in the right ear or worse than Level III in the left. 2. At no time, from June 2, 2016, is the Veteran’s hearing acuity shown to have been worse than Level IV in the right ear or worse than Level V in the left. CONCLUSION OF LAW A compensable rating prior to June 2, 2016 and a rating in excess of 10 percent from that date are not warranted for bilateral hearing loss. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.85, 4.86 Diagnostic Code (Code) 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is a Veteran who served on active duty from June 1962 to April 1964. This matter is before the Board of Veterans’ Appeals (Board) on appeal from an April 2015 Department of Veterans Affairs (VA) rating decision that granted service connection for bilateral hearing loss and assigned a rating of 0 percent, effective December 17, 2014. A June 2016 rating decision increased the rating for the hearing loss to 10 percent, effective June 2, 2016. In March 2019, a video conference hearing was held before the undersigned; a transcript is in the record. At the hearing, the Veteran testified his hearing worsened. Later, in March 2019, this matter was remanded for additional development. The issue is characterized to reflect that staged ratings are assigned, and that both “stages” are on appeal. Entitlement to increases in the staged ratings assigned for bilateral hearing loss is denied. Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity caused by the given disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. As this appeal is from the rating decision that granted service connection and assigned the initial rating for the disability and an effective date, the entire period is for consideration from the effective date of the award to the present. And “staged” various ratings may be assigned where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. When a question arises as to which of two ratings applies under a particular code, the higher rating 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, including regarding degree of disability, is to be resolved in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. Ratings for hearing loss disability are derived from Table VII of 38 C.F.R. § 4.85 by a mechanical application of the rating schedule to numeric designations assigned after audiometric evaluations are performed. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). The numeric designations correspond to eleven auditory acuity levels, indicated by Roman numerals, where Level I denotes essentially normal acuity and Level XI denotes profound deafness. The assignment of the appropriate numeric level is based on the results of controlled speech discrimination test (Maryland CNC) in combination with average hearing threshold. The average threshold is obtained from puretone audiometric tests in the frequencies of 1000, 2000, 3000, and 4000 Hertz. 38 C.F.R. § 4.85. Rating specialists use either Table VI or VIA of 38 C.F.R. § 4.85 to determine the correct Roman numeral designation. Table VIA is used when speech discrimination tests are inappropriate due to language difficulties, inconsistent speech discrimination scores, etc., or where there is an exceptional pattern of hearing loss (as defined in 38 C.F.R. § 4.86). One such pattern occurs when the puretone threshold at each of the four specified frequencies is 55 decibels or more. Another occurs when the puretone threshold at 1000 Hertz is 30 decibels or less and the puretone threshold at 2000 Hertz is 70 decibels or more. 38 C.F.R. § 4.86(a)(b). On a March 2015 Hearing Loss and Tinnitus Disability Benefits Questionnaire (DBQ) evaluation, audiometry revealed that puretone thresholds, in decibels, were: HERTZ 1000 2000 3000 4000 Avg Maryland CNC Speech Discrimination RIGHT 15 30 35 45 31 84 LEFT 15 30 45 55 36 82 Regarding the functional impact of the hearing loss, the Veteran stated that he had trouble understanding what people were saying and had to say “Huh?” a lot (for explanation). A November 2015 VA audiology clinical record notes the Veteran’s report of decreased hearing and that his current amplification was cleaned, checked, and programmed to the current hearing test. Puretone testing revealed a moderate to moderately-severe sensorineural hearing loss bilaterally. Speech reception thresholds were not in agreement with puretone findings, and speech discrimination scores were noted as 92 percent bilaterally (with no indication that the Maryland CNC Speech Discrimination was used). Audiometry revealed that puretone thresholds were: HERTZ 1000 2000 3000 4000 Avg Maryland CNC Speech Discrimination RIGHT 45 50 55 60 53 N/A LEFT 60 65 60 60 61 N/A On June 2016 Hearing Loss and Tinnitus DBQ, audiometry puretone thresholds were: HERTZ 1000 2000 3000 4000 Avg Maryland CNC Speech Discrimination RIGHT 50 50 55 65 55 76 LEFT 60 70 65 65 65 72 Regarding the functional impact of the hearing loss, the Veteran stated that he had trouble understanding what people were saying to him and had to say “Huh?” a lot (seeking explanation). At the March 2019 Board hearing, the Veteran testified his hearing had worsened since the June 2016 examination. Later, in March 2019, the Board remanded the matter for additional development, including for an examination to ascertain the current severity of his bilateral hearing loss. On August 2020 Hearing Loss and Tinnitus DBQ audiometry puretone thresholds were: HERTZ 1000 2000 3000 4000 Avg Maryland CNC Speech Discrimination RIGHT 25 55 60 70 53 96 LEFT 35 55 60 75 56 82 Regarding the functional impact of the hearing loss, the Veteran stated that he had difficulty hearing at low frequency and hearing conversation when in crowds/background noise. The audiologist opined that the Veteran’s report of hearing loss was consistent with the level of hearing impairment shown by audiometry (i.e. difficulty hearing in crowds/background noise environments was consistent with the degree and configuration of his hearing loss). It was also noted that even with properly fit amplification, the Veteran would have difficulty hearing sound and verbal communication, more so in presence of background noise and would be best suited working in a quiet environment with maximum access to auditory and visual cues. (He should not be placed in any situation where mishearing of sound or conversation would place his personal safety or that of his coworkers in danger.) The Veteran asserts that his hearing acuity has decreased and now warrants a rating in excess of 10 percent. Under governing regulations and the Caselaw cited above, determinations for hearing loss are based on results of audiometric testing. Although the Veteran is competent to observe and report his perception of a decline in hearing acuity, he is not competent to establish the level of severity of his hearing loss disability by his own lay observations. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The November 2015 VA audiometry was inadequate for rating purposes because the examination was conducted to program the Veteran’s hearing instrument to fit his particular audiometric demands. It was not conducted to assess the current severity of his hearing loss disability (and was not in compliance with 38 C.F.R. § 4.85, as there was no speech discrimination with Maryland CNC list testing). The findings on that testing are not probative evidence in this matter. The only audiometry of record adequate for rating purposes was that on VA audiological evaluations in March 2015, June 2016, and August 2020. Applying the results of the March 2015 VA examination to Table VI establishes that the Veteran had Level II hearing acuity in the right ear and Level III acuity in the left. Under Table VII, such hearing acuity warrants a 0 percent rating. The findings do not reflect an exceptional pattern of hearing loss, nor did the examiner indicate that speech recognition scores were unreliable; therefore, Table VIA is not for application. Applying the results of the June 2016 VA examination to Table VI establishes that the Veteran had Level IV hearing acuity in the right ear and Level V acuity in the left. Under Table VII, such hearing acuity warrants a 10 percent rating. Although left ear hearing puretone thresholds showed an exceptional pattern of hearing loss (all puretone thresholds above 55 decibels), rating under Table VI and Table VIA resulted in the same 10 percent rating. Applying the results of the August 2020 VA examination to Table VI establishes that the Veteran had Level I hearing acuity in the right ear and Level IV acuity in the left. Under Table VII, such hearing acuity warrants a rating of 0 percent. The findings do not reflect an exceptional pattern of hearing loss, nor did the examiner indicate that speech recognition scores were unreliable; therefore, Table VIA is not for application. As the assignment of a disability rating for hearing impairment is derived by mechanical application of the rating schedule to the numeric designations assigned after audiometry evaluations are rendered, there is no doubt as to the proper evaluation to be assigned. Lendenmann, 3 Vet. App. 345; 38 C.F.R. § 4.85, Tables VI-VII, Code 6100. The findings on official audiometry on the March 2015 VA examination fall squarely within the parameters for a 0 percent rating, and that rating encompasses the Veteran’s self-reported functional impairment (trouble understanding what people were saying to him), which the Board finds no reason to question. Accordingly, a compensable rating for bilateral hearing loss prior to June 2, 2016 is clearly not warranted. The findings on official audiometry on the June 2016 and August 2020 VA examinations fall squarely within the parameters for a 10 percent rating and 0 percent rating, respectively. Those ratings encompass the Veteran’s self-reported functional impairment (10 percent for trouble understanding what people were saying to him). The AOJ has assigned a 10 percent rating for the bilateral hearing loss from June 2, 2016 and a rating in excess of 10 percent from that date is not warranted. [The Board observes that a single examination would not establish sustained improvement-which given the nature of the disability is unlikely.] The Board acknowledges the request of the Veteran’s representative in an April 2021 informal hearing presentation (IHP) to remand, once again, to obtain a new examination for hearing loss because the August 2020 examiner did not comply with the March 2019 remand directives. The representative noted that “the examiner provided a sparse statement from the Veteran (i.e. Veteran describes difficulty hearing low frequency and difficulty hearing conversation when in crowds/background noise)” when the March 2019 remand instructed the examiner to “elicit from the Veteran a description of the impact his hearing loss has on occupational and daily activity functioning.” The representative also noted that the examiner provided no rationale to support her opinion that “Veteran’s report is consistent with the level of hearing impairment shown by audiometry.” The Board finds contrary to the argument presented, the August 2020 VA examination complied with the March 2019 remand directives, and that the new examination requested is not unwarranted. While the statement was “sparse,” the VA examiner elicited (as requested) from the Veteran, and accepted at face value, a description of the functional impact from his hearing loss. He was free to provide as much (or as little) information as he wished regarding such impact, and the examiner recorded his statement. Additionally, the examiner provided (adequate) rationale when she stated that the Veteran’s report of difficulty hearing in crowds/background noise environments was consistent with the degree and configuration of his hearing loss, further explanation was not needed (it is assumed that if the descriptions of impairment were inconsistent, explanation why that is so would have been provided). As noted above, assignment of a disability rating for hearing impairment is derived by mechanical application of the rating schedule to the numeric designations assigned after audiometry evaluations are rendered, so there is no doubt as to the proper evaluation to be assigned. The August 2020 VA audiometry is adequate for rating purposes because it was done in compliance with 38 C.F.R. § 4.85. Accordingly, the Board finds that it is not necessary to remand for a new examination for hearing loss. The preponderance of the evidence is against this claim. Therefore, the appeal in this matter must be denied. GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Chu, 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.