Citation Nr: 21025213 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 16-28 924 DATE: April 27, 2021 ORDER A compensable rating for bilateral hearing loss prior to May 18, 2020 is denied. Resolving all reasonable doubt in the Veteran’s favor, a disability rating of 80 percent, and not higher, for bilateral hearing loss from May 18, 2020 to September 23, 2020 is granted. FINDING OF FACT 1. Prior to May 18, 2020, the Veteran’s hearing acuity was no worse than Level I for the right ear and Level VIII in the left ear. 2. Resolving all reasonable doubt in the Veteran’s favor, from May 18, 2020 to September 23, 2020, his hearing acuity was no worse than Level IX in the right ear and Level XI in the left ear. CONCLUSIONS OF LAW 1. Prior to May 18, 2020, the criteria for a compensable rating for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100. 2. Resolving all reasonable doubt in the Veteran’s favor, from May 18, 2020 to September 23, 2020, the criteria for an 80 percent rating, and not higher, for bilateral hearing loss have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Air Force from April 1966 to February 1970. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a February 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran and his son R.J. testified at a videoconference hearing held before the undersigned Veterans Law Judge in October 2019. A transcript is of record. In April 2020, the Board remanded the appeal for further development. In a September 2020 rating decision, the RO granted a 100 percent disability rating for bilateral hearing loss (and also awarded special monthly compensation) effective September 24, 2020. Thus, entitlement to an increased rating from September 24, 2020 is not on appeal before the Board. 1. A compensable rating for bilateral hearing loss prior to May 18, 2020 is denied. 2. Resolving all reasonable doubt in the Veteran’s favor, a disability rating of 80 percent, and not higher, for bilateral hearing loss from May 18, 2020 to September 23, 2020 is granted. The Veteran contends that he is entitled to a compensable rating for his bilateral hearing loss disability. The appeal period before the Board begins on August 8, 2011, one year prior to receipt of the claim for increase. Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010). Evaluations of defective hearing range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of a controlled Maryland CNC speech discrimination test together with the average hearing threshold level measured by pure tone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hertz). 38 C.F.R. § 4.85, Diagnostic Code 6100. 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 pure tone 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). At the hearing before the undersigned, the Veteran discussed the difficulty he has due to his hearing loss. In response to his representative’s question, “Do you have to read lips or continuously ask people to repeat themselves when they’re talking to you;” the Veteran answered in the affirmative. He also indicated that he is a pastor and “[t]hat makes it tough.” In April 2020, the Board remanded the claim for further development. The RO was directed to obtain updated VA treatment records, to include a copy of the January 3, 2013 audiometric assessment; and perform a VA audiometric assessment. These directives were accomplished. The RO was directed to obtain seek authorization from the Veteran, to obtain medical records from “Dr. T.” (Dr. Trino), who was identified on the October 2019 audiology record from Athens Oconee Audiology. In response to the RO’s May 2020 letter, along with authorization/release forms requesting authorization for medical records, and the Veteran only identified Dr. Estes and Dr. Brewer (of Athens Oconee Audiology). He also submitted a copy of a May 2020 audiometric assessment from Dr. Brewer as well as copies of previously submitted private audiometric assessments conducted in April 2014 by a clinician whose signature is illegible, and in April 2019 and October 2019 by Athens Oconee Audiology. He also provided a copy of an ear conditions- disability benefits questionnaire completed by Dr. Estes in October 2019. The Veteran’s son, R.J., submitted written correspondence in May 2020, in which he indicated that the Veteran has not ever been seen or treated by Dr. T. R.J. indicated that the Veteran has only been seen by the VA, Athens Oconee Audiology and Dr. Estes. The Board finds there has been substantial compliance with the April 2020 remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). Under 38 C.F.R. § 4.85 (a), 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. See Savage v. Shinseki, 24 Vet. App. 259, 263-64 (2011). Review of the claims file reveals a private audiogram report dated in February 2012. Puretone thresholds, in decibels, were provided. The word recognition test scores were also provided, but not shown to have been obtained by using the Maryland CNC. As VA regulations require the use of a Maryland CNC word list, the results of this report cannot be used to rate the Veteran’s bilateral hearing loss. The Veteran underwent two audiological evaluations in January 2013. A January 3, 2013 evaluation by audiologist shows that the speech discrimination testing was performed using the NU-6 word list. The NU-6 (Northwestern University Auditory Test Number Six) is not the Maryland CNC. Thus, the results of this examination cannot be used to rate the Veteran’s bilateral hearing loss. A January 30, 2013 VA contract examination report reveals that the Veteran reported difficulty with hearing and understanding, especially if he was in a group or crowd. 38 C.F.R. § 4.10; Martinak v. Nicholson, 21 Vet. App. 447 (2007). The Veteran’s Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: January 30, 2013 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 15 20 45 60 35 96 LEFT 25 75 105 105 78 94 The examiner, an audiologist, indicated the test results were valid but the use of speech discrimination scores was not appropriate for the Veteran because of language difficulties, inconsistent speech discrimination scores, etc. that make combined use of puretone average and speech discrimination scores inappropriate. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was shown in the left ear only. Because the examiner indicated the use of speech discrimination scores was not appropriate for the Veteran, the results of the assessment, as it pertains to both ears, will only be applied to Table VIA. Applying the results to Table VIA yields Level I in the right ear. Applying the results to Table VIA yields Level VII in the left ear. Elevating this Roman numeral to the next highest numeral results in Level VIII in the left ear. Entering the designation of Level I for the right ear and Level VIII in the left ear to 38 C.F.R. § 4.85, Table VII, equates to a 0 percent disability rating under Diagnostic Code 6100. A VA contract examination was conducted in January 2014. The examiner noted that the test results are not valid for rating purposes (not indicative of organic hearing loss). The puretone thresholds could not be tested because the pathology of hearing loss could not be established due to inconsistencies in Veteran-volunteered responses after re-instruction and retest. The examiner further indicated that use of speech discrimination score is appropriate for this Veteran, but speech recognition threshold (SRT) results do not match volunteer puretone responses. The Veteran submitted a copy of a private audiogram report dated in April 2019. The audiologist did not provide pure tone thresholds for either ear at 3000 Hertz(Hz). The word discrimination test shows “Spondee A” word list was used; scores were not provided. The audiologist indicated that the Veteran did not respond to speech testing at the limits of the audiometer. An October 2019 audiologist report from Dr. Estes, a private clinician, reflects absence of pure tone thresholds for either ear at 3000 Hertz. The report shows that the speech recognition testing was performed using the Maryland CNC; a handwritten score of “0” is included. The audiologist indicated that “[t]he Veteran’s speech is clear and easy to understand. He has no response at all to speech in an examination room when visual cues are removed. He says he speech[]reads.” Because the April 2019 and October 2019 audiogram reports do not include pure tone threshold results at 3000 Hz, they are not adequate to use for rating purposes. The Veteran underwent an audiological evaluation in May 2020 by Dr. Brewer, a private clinician. The pure tone thresholds, in decibels, were as follows: May 18, 2020 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 90 95 95 105 96 - LEFT 95 115 120 115 111 - The reliability of these test results was noted to be “fair.” Dr. Brewer indicated, “Test results are somewhat inconsistent with behavioral communication abilities of the patient. He is able to carry on a conversation in the office without the use of amplification.” The evaluation did not include any speech recognition scores. The comment from Dr. Brewer indicated that the Veteran and his son requested air conduction thresholds to include 3000 and 6000 Hz. She did not indicate that speech discrimination testing is not appropriate for this Veteran. Parenthetically, the Board observes that the VA audiologist who evaluated the Veteran at the September 2020 VA examination indicated that the use of speech discrimination score is appropriate for this Veteran. Pursuant to 38 C.F.R. § 4.85(a), if an examiner certifies that use of the speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc., or when there is an exceptional pattern of hearing loss under § 4.86, then the Hertz decibel readings can be applied to Table VIA. See generally 38 C.F.R. § 4.85(a). However, the requirements of § 4.85(a) regarding examination adequacy for rating purposes still apply. Applying the results to Table VIA yields Level IX in the right ear and Level XI in the left ear. Entering the resulting bilateral numeric designation of Level IX for the right ear and Level XI for the left ear to 38 C.F.R. § 4.85, Table VII, equates to an 80 percent disability rating under Diagnostic Code 6100. 38 C.F.R. § 4.86(a). The Board notes that even if it determined that use of 38 C.F.R. § 4.86(a) is not appropriate here because Dr. Brewer did not certify that use of the speech discrimination test is not appropriate, were the Board to liberally apply of the speech discrimination results of 0 percent, bilaterally, from the September 2020 VA examination report (which is valid and adequate for rating purposes), a rating of 80 percent would be warranted with utilization of Tables VI and VII. Specifically, applying the results to Table VI, the findings yield a numeric designation of Level XI in the right ear and Level XI in the left ear. Entering the resulting bilateral numeric designation of Level XI for both ears to 38 C.F.R. § 4.85, Table VII, also equates to an 80 percent disability rating. Given the foregoing, entitlement to a compensable rating prior to May 18, 2020 is not warranted. Review of the evidence shows that the Veteran’s hearing acuity was no worse than Level I for the right ear and Level VIII in the left ear prior to May 18, 2020. However, resolving all reasonable doubt in the Veteran’s favor, an 80 percent rating is warranted from May 18, 2020 to September 23, 2020 because his hearing acuity was not worse than Level IX in the right ear and Level XI in the left ear. The Board expressly acknowledges its consideration of the lay evidence of record when adjudicating this claim, including the Veteran’s reports that his hearing loss makes hearing difficult and that he must lip read. The Veteran is competent to report difficulty with his hearing; however, disability ratings for hearing loss are derived from a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). The rating criteria contemplate speech reception thresholds and ability to hear spoken words on Maryland CNC testing. The functional impact that the Veteran describes, is contemplated by the rating criteria. Doucette v. Shulkin, 28 Vet. App. 366 (2017). The Veteran’s complaint is reduced hearing acuity, which is what is contemplated in the ratings assigned. See Rossy v. Shulkin, 29 Vet. App. 142, 145 (2017). Accordingly, entitlement to a compensable rating prior to May 18, 2020 is not warranted. An 80 percent rating is, however, warranted from May 18, 2020 to September 23, 2020. There are no additional issues raised or expressed on appeal. D. JOHNSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Jake Choi, 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.