Citation Nr: 21025808 Decision Date: 04/29/21 Archive Date: 04/29/21 DOCKET NO. 15-39 036A DATE: April 29, 2021 ORDER Entitlement to a compensable rating for bilateral hearing loss prior to November 5, 2019 is denied. Entitlement to a 10 percent rating, but no higher, for bilateral hearing loss is granted from November 5, 2019. FINDINGS OF FACT 1. Prior to November 5, 2019, the Veteran’s hearing loss has been manifested by no worse than Level I hearing impairment in the right ear and Level II hearing impairment in the left ear. 2. From November 5, 2019, the Veteran’s hearing loss has been manifested by Level IV hearing impairment in both ears; any improvement since that time is not reflective of an actual improvement in the ability to function under the ordinary conditions of life and work. CONCLUSIONS OF LAW 1. The criteria for a compensable rating for bilateral hearing loss are not met prior to November 5, 2019. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85, DC 6100. 2. The criteria for a 10 percent rating, but no higher, for bilateral hearing loss are met from November 5, 2019. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85, DC 6100, 4.86. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from February 1982 to February 1985. This matter comes before the Board of Veterans’ Appeals (Board) from an October 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In this regard, new and material evidence was received within one year of that rating decision, and the Veteran appealed the March 2015 rating decision considering the same. 38 C.F.R. § 3.156(b). In October 2018, the Veteran testified at a hearing before the undersigned Veterans Law Judge. In March 2019 and June 2020, the Board remanded the claim on appeal for further development. Of note, a VA addendum opinion was submitted in September 2020 in compliance with the June 2020 remand requesting clarification. The examiner who conducted the November 2019 VA examination clarified that the November 2019 VA audiogram test results were reliable and accurate and thus the pure-tone thresholds and the Maryland CNC speech discrimination scores could be used for rating purposes. Also, of note, per the June 2020 remand, the audiologist who conducted the private November 2014 audiological examination related to the Veteran that the examination did not employ the Maryland CNC test, and as such, the Board finds that this examination cannot be used for rating purposes. 38 C.F.R. § 4.85(a); July 2020 Correspondence. However, the Board notes that this finding is not prejudicial to the Veteran, as the results support a noncompensable rating. And finally, per the June 2020 Board remand, the results of the December 29, 2016 results were obtained, and as detailed below are adequate for rating purposes. Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person’s ordinary activity. 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibits symptoms that would warrant different evaluations during the course of the appeal, the assignment of staged ratings is appropriate. See Fenderson v. West, 12 Vet. App. 119 (1999) 1. Entitlement to a compensable rating for bilateral hearing loss prior to November 5, 2019 is denied. 2. Entitlement to a 10 percent rating, but no higher, for bilateral hearing loss is granted from November 5, 2019. The Veteran is in receipt of a noncompensable rating for bilateral hearing loss throughout the appeal. The appeal period is from April 9, 2014, the date the Veteran filed his increased rating claim, plus the one-year lookback period. See Gaston v. Shinseki, 605 F.3d 979, 984 (Fed. Cir. 2010). Hearing loss is evaluated under the criteria set forth in the VA Schedule for Rating Disabilities. VA disability compensation for impaired hearing is derived from the application in sequence of two tables. See 38 C.F.R. § 4.85, Table VI, Table VII. Table VI correlates the average pure tone sensitivity threshold (derived from the sum of the 1000, 2000, 3000, and 4000-hertz thresholds divided by four) with the ability to discriminate speech, providing a Roman numeral to represent the correlation. Each Roman numeral corresponds to a range of thresholds (in decibels) and of speech discriminations (in percentages). Level I represents essentially normal acuity, and numeric level XI represents profound deafness. The table is applied separately for each ear to derive the values used in Table VII. Table VII prescribes the disability rating based on the relationship between the values for each ear derived from Table VI. See 38 C.F.R. § 4.85. In cases involving exceptional patterns of hearing impairment, defined as where the pure tone sensitivity threshold is equal to or greater than 55 decibels at each of 1000, 2000, 3000, and 4000-hertz, then the veteran’s hearing threshold is also applied to Table VIA, which provides a numeric designation of hearing impairment based solely upon pure tone threshold average. For each ear with an exceptional pattern of hearing impairment, the more favorable (i.e., greater) numeric designator from either Table VI or Table VIA is then applied to Table VII. See 38 C.F.R. § 4.86. Controlled speech discrimination testing (Maryland CNC) and pure tone audiometry testing results from a VA and private audiology examinations were conducted in October 2014, March 2015, November 2019, December 2019, and July 2020. The October 2014 examination report shows right ear hearing thresholds of 45 decibels at 1000 hertz, 40 decibels at 2000 hertz, 15 decibels at 3000 hertz, and 20 decibels at 4000 hertz, with 96 percent speech discrimination. See October 2014 VA Audiology Examination Report. The examination report shows left ear hearing thresholds of 50 decibels at 1000 hertz, 50 decibels at 2000 hertz, 55 decibels at 3000 hertz, and 50 decibels at 4000 hertz, with 92 percent speech discrimination. Id. The Veteran had an average sensitivity threshold of 30 decibels for the right ear and 51 decibels for the left ear. Id. These results correlate to a Level I impairment in the right ear and a Level I impairment in the left ear, warranting a 0 percent disability rating. See 38 C.F.R. § 4.85, Table VI, Table VII (DC 6100). The March 2015 examination report shows right ear hearing thresholds of 45 decibels at 1000 hertz, 40 decibels at 2000 hertz, 15 decibels at 3000 hertz, and 20 decibels at 4000 hertz, with 92 percent speech discrimination. See March 2015 VA Audiology Examination Report. The examination report shows left ear hearing thresholds of 50 decibels at 1000 hertz, 50 decibels at 2000 hertz, 55 decibels at 3000 hertz, and 55 decibels at 4000 hertz, with 88 percent speech discrimination. Id. The Veteran had an average sensitivity threshold of 30 decibels for the right ear and 53 decibels for the left ear. Id. These results correlate to a Level I hearing impairment for the right ear and Level II hearing impairment for the left ear, warranting a 0 percent disability rating. See 38 C.F.R. § 4.85, Table VI, Table VII (DC 6100). The December 29, 2016 examination report shows right ear hearing thresholds of 50 decibels at 1000 hertz, 45 decibels at 2000 hertz, 30 decibels at 3000 hertz, and 35 decibels at 4000 hertz, with 88 percent speech discrimination. See December 2016 VA Audiology Examination Report. The examination report shows left ear hearing thresholds of 55 decibels at 1000 hertz, 55 decibels at 2000 hertz, 55 decibels at 3000 hertz, and 60 decibels at 4000 hertz, with 84 percent speech discrimination. Id. The Veteran had an average sensitivity threshold of 40 decibels for the right ear and 56 decibels for the left ear. Id. These results correlate to a Level II impairment in the right and a Level II impairment in the left ear, warranting a 0 percent disability rating. See 38 C.F.R. § 4.85, Table VI, Table VII (DC 6100). However, an exceptional pattern of hearing is demonstrated on the left, warranting a finding of Level IV impairment in the left ear when using puretone threshold only. 38 C.F.R. § 4.86(a). When combined with a Level II on the right ear, however, a noncompensable rating is still warranted. The November 5, 2019 examination report shows right ear hearing thresholds of 50 decibels at 1000 hertz, 50 decibels at 2000 hertz, 50 decibels at 3000 hertz, and 50 decibels at 4000 hertz, with 80 percent speech discrimination. See November 2019 VA Audiology Examination Report. The examination report shows left ear hearing thresholds of 55 decibels at 1000 hertz, 55 decibels at 2000 hertz, 60 decibels at 3000 hertz, and 60 decibels at 4000 hertz, with 76 percent speech discrimination. Id. The Veteran had an average sensitivity threshold of 50 decibels for the right ear and 58 decibels for the left ear. Id. These results correlate to a Level IV impairment in the right and a Level IV impairment in the left ear, warranting a 10 percent disability rating. See 38 C.F.R. § 4.85, Table VI, Table VII (DC 6100). While an exceptional pattern of hearing is demonstrated on the left, the same result of Level IV impairment in the left ear is reached when using puretone threshold only, which still correlates with a 10 percent rating. 38 C.F.R. § 4.86(a). The December 2019 examination report shows right ear hearing thresholds of 50 decibels at 1000 hertz, 45 decibels at 2000 hertz, 45 decibels at 3000 hertz, and 50 decibels at 4000 hertz, with 98 percent speech discrimination. See December 2019 VA Audiology Examination Report. The examination report shows left ear hearing thresholds of 55 decibels at 1000 hertz, 55 decibels at 2000 hertz, 60 decibels at 3000 hertz, and 60 decibels at 4000 hertz, with 98 percent speech discrimination. Id. The Veteran had an average sensitivity threshold of 48 decibels for the right ear and 58 decibels for the left ear. Id. These results correlate to a Level I impairment in the right and a Level II impairment in the left ear, warranting a 0 percent disability rating. See 38 C.F.R. § 4.85, Table VI, Table VII (DC 6100). However, an exceptional pattern of hearing is demonstrated on the left, warranting a finding of Level IV impairment in the left ear when using puretone threshold only. 38 C.F.R. § 4.86(a). When combined with a Level I on the right ear, however, a noncompensable rating is warranted. The July 2020 examination report shows right ear hearing thresholds of 50 decibels at 1000 hertz, 50 decibels at 2000 hertz, 45 decibels at 3000 hertz, and 55 decibels at 4000 hertz, with 96 percent speech discrimination. See July 2020 Private Audiology Examination Report. The examination report shows left ear hearing thresholds of 50 decibels at 1000 hertz, 55 decibels at 2000 hertz, 55 decibels at 3000 hertz, and 60 decibels at 4000 hertz, with 60 percent speech discrimination. Id. The Veteran had an average sensitivity threshold of 50 decibels for the right ear and 55 decibels for the left ear. Id. These results correlate to a Level I impairment in the right and a Level VI impairment in the left ear, warranting a 0 percent disability rating. See 38 C.F.R. § 4.85, Table VI, Table VII (DC 6100). The Veteran has not undergone any other VA-compliant hearing examinations during the appeal period. He is competent to report the symptoms and history of his hearing loss. However, he is not competent to determine the disability rating based on his hearing loss for VA purposes as it is determined by a mechanical application of the definition found in 38 C.F.R. § 4.85 to audiometric (pure tone threshold and Maryland CNC) testing results. The evidence prior to November 5, 2019 does not allow for a compensable rating for the Veteran’s bilateral hearing loss. As noted above, the assignment of disability ratings for hearing impairment are derived by a mechanical application of audiometric evaluation results to the rating schedule. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). As such, the relevant evidence shows that a compensable rating is not warranted for this period. As of November 5, 2019, however, a 10 percent rating is warranted. In this regard, the Board acknowledges the findings of the December 2019 VA examination and July 2020 private evaluation, indicating some improvement in the Veteran’s bilateral hearing. However, as the evidence of record does not clearly demonstrate sustained improvement in the ability to function under the ordinary conditions of life and work, and since the December 2019 VA hearing evaluation was performed within a month of the November 2019 VA examination, the Board will afford the Veteran the benefit of the doubt and utilize the November 2019 audiogram to award a higher rating. Therefore, in viewing all the evidence in the light most favorable to Veteran, a 10 percent rating is warranted from November 5, 2019. A rating higher than 10 percent is precluded, since the audiometric hearing evaluations are not consistent with a higher rating under 38 C.F.R. § 4.85. Both the March 2015 and December 2019 VA examiners noted the functional impact of the Veteran’s bilateral sensorineural hearing loss (difficulty hearing and understanding conversation, particularly with background noise). Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). However, as noted above, the assignment of disability ratings for hearing impairment are derived by a mechanical application of audiometric evaluation results to the rating schedule. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). The Board acknowledges the Veteran’s statement during his October 2018 Board hearing that his hearing has worsened. The Board notes in the Veteran’s February 2015 Correspondence where he states he has trouble hearing people and needs them to repeat themselves because he cannot understand them or hear what they are saying. The Veteran asserts in his April 2015 Notice of Disagreement (NOD) that he should have a “higher evaluation” due to significant threshold shifts indicated on a hearing conversation data form in 1983. See April 2015 NOD; See May 1983 Service Treatment Record (STR). However, that examination cannot be used for rating purposes, as there was no Maryland CNC test conducted, and in any event, that record is dated decades before the appeal period. 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)). The Veteran also asserts in his April 2015 NOD that his private treatment record reflects greater hearing loss than the VA examinations. Again, the December 2014 examination is inadequate for rating purposes, as it does not conform with VA requirements for rating purposes in using the Maryland CNC test. In sum, the evidence of record supports a rating of 10 percent for the Veteran’s service connected bilateral hearing loss, but no greater, from November 5, 2019. The objective evidence of record does not support a compensable rating for the Veteran’s service connected bilateral hearing loss prior to that date. See 38 C.F.R. §§ 4.7, 4.85, 4.86(b), DC 6100. S. BUSH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. J. Rogers, 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.