Citation Nr: 21025933 Decision Date: 04/29/21 Archive Date: 04/29/21 DOCKET NO. 18-45 334 DATE: April 29, 2021 ORDER Entitlement to a 30 percent disability rating, but no higher, from September 12, 2016, to December 16, 2020, for bilateral hearing loss is granted. Entitlement to a 70 percent disability rating from December 17, 2020 for bilateral hearing loss is denied. FINDINGS OF FACT 1. From September 12, 2016 to December 17, 2020, the Veteran’s right ear hearing loss was manifested by no more than Level VI hearing impairment; and left ear hearing loss was manifested by no more than Level VII hearing impairment. 2. From December 17, 2020, the Veteran’s right ear hearing loss was manifested by no more than Level VIII hearing impairment; and left ear hearing loss was manifested by no more than Level XI hearing impairment. CONCLUSIONS OF LAW 1. The criteria for entitlement to a 30 percent disability rating, but no higher, from September 12, 2016, to December 16, 20202, for bilateral hearing loss have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.400(o)(2), 4.1, 4.3, 4.21, 4.85, Diagnostic Code 6100, 4.86. 2. The criteria for entitlement to a 70 percent disability rating from December 17, 2020 for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.21, 4.85, Diagnostic Code 6100, 4.86. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1963 to December 1964. The matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2017 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). During the pendency of the appeal, the RO initially awarded the Veteran an increased disability rating from noncompensable to 10 percent disabling, effective June 4, 2019. See July 2020 rating decision. The RO, in a January 2021 rating decision, awarded the Veteran an increased staged disability rating from 10 percent to 70 percent disabling, effective December 17, 2020. As these increased ratings did not satisfy the appeal in full, the issue remains on appeal and has been characterized as shown on the title page of this decision. See AB v. Brown, 6 Vet. App. 35 (1993). The issue was last remanded by the Board in September 2020, at which time the Board requested the RO to obtain and confirm a complete copy of a September 2016 VA audiometric testing results was uploaded the Veteran’s claims file, and provide the Veteran with a new VA examination. A review of the claims file shows that there has been substantial compliance with the Board’s prior remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). The case has been returned to the Board for review. The Board is also cognizant of the ruling of the United States Court of Appeals for Veterans Claims (Court) in Rice v. Shinseki, 22 Vet. App. 447 (2009). In Rice, the Court held that a claim for a total rating based on individual unemployability due to service-connected disability (TDIU), either expressly raised by the Veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. In this case, the Veteran nor his representative have argued that the Veteran’s bilateral hearing loss renders him unemployable. Additionally, the record does not otherwise reflect that the Veteran is unemployable on account of his service-connected bilateral hearing loss. Accordingly, the Board concludes that a claim for a TDIU has not been raised. Entitlement to a compensable staged disability rating prior to June 4, 2019, a staged disability rating in excess of 10 percent from June 4, 2019 to December 16, 2020, and a staged disability rating in excess of 70 percent from December 17, 2020 for service-connected bilateral hearing loss. The Veteran initially sought entitlement to a compensable disability rating for his service-connected bilateral hearing loss. See October 2016 VA Form 21-526. The Veteran’s increased rating claim was received on October 5, 2016. Therefore, the relevant rating period is from October 5, 2015, one year prior to receipt of the claim, through the present. 38 C.F.R. § 3.400(o)(2). Disability ratings are determined by the application of VA’s Schedule for Rating Disabilities (Schedule), which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficient to identify the disease and the resulting disability and, above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21; see also Mauerhan v. Principi, 16 Vet. App. 436 (2002). 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,” whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505, 519 (2007). When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. See 38 C.F.R. § 4.3. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. The assigned evaluation for hearing loss is determined by mechanically applying the rating criteria to certified test results. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Under the applicable criteria, ratings for hearing loss are determined in accordance with the findings obtained on audiometric examinations. Evaluations of hearing impairment range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests (Maryland CNC), together with the average hearing threshold level as measured by Puretone audiometry tests in the frequencies of 1,000, 2,000, 3,000, and 4,000 Hertz (Hz). The rating criteria establish eleven auditory acuity levels designated from I to XI. As set forth in the regulations, Tables VI, VIA, and VII are used to calculate the rating to be assigned. See 38 C.F.R. § 4.85, DC 6100. Additionally, the regulations allow for evaluating exceptional patterns of hearing impairment. When the Puretone threshold at each of the four specified frequencies (1,000, 2,000, 3,000, and 4,000 Hz) is 55 decibels or more, Table VI or Table VIA is to be used, whichever results in the higher numeral. See 38 C.F.R. § 4.86(a). Each ear will be evaluated separately. Id. In addition, when the Puretone 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. That numeral will then be elevated to the next higher Roman numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86 (b). Table VIA, which allows for rating based only on Puretone threshold averages, is used instead of Table VI when an examiner certifies that the use of speech discrimination testing is not appropriate or when there is an exceptional pattern of hearing impairment. See 38 C.F.R. § 4.85(c). Prior to December 17, 2020 As previously noted, the RO awarded the Veteran an increased staged disability rating of 10 percent for his service-connected bilateral hearing loss, effective June 4, 2019. In doing so, the RO denied a compensable rating prior to June 4, 2019. However, the Board finds that a 30 percent rating is warranted prior to December 17, 2020, effective September 12, 2016, that date it is factually ascertainable that the Veteran’s bilateral hearing loss worsened. In that regard, the Veteran underwent audiometric testing on September 12, 2016 at a VA medical center. See September 2016 VA treatment records. The VA audiologist noted the Veteran had mild to severe sensorineural hearing loss of the right ear, and moderate to profound sensorineural hearing loss of the left ear. Id. For the right ear, the audiometric findings showed 30 decibels at 1,000 Hz, 70 decibels at 2,000 Hz, 70 decibels at 3,000 Hz, and 80 decibels at 4,000 Hz. Id. For the left ear, audiometric findings showed 55 decibels at 1,000 Hz, 75 decibels at 2,000 Hz, 80 decibels at 3,000 Hz, and 85 decibels at 4,000 Hz. Id. The VA audiologist noted the Veteran had poor speech recognition ability bilaterally at 64 percent. Id. Though the VA examiner did not specify use of the Maryland CNC Test, VA examiners are presumed to properly discharge their duties and there is no clear evidence the VA examiner did not use the Maryland CNC Test to determine the Veteran’s speech discrimination scores. See Ashley v. Derwinski, 2 Vet. App. 307, 308-309 (1992); Francway v. Wilkie, 940 F.3d 1304 (Fed. Cir. 2019); Nohr v. McDonald, 27 Vet. App. 124, 131-32 (2014). The Puretone threshold averages were 62.5 (rounded up to 63) for the right ear and 73.75 (rounded up to 74) for the left ear. Applying these results to Table VI of the Schedule reveals numeric designations of Level VI for the right ear and Level VII for the left ear. 38 C.F.R. § 4.85, Table VI. The Board notes that Table VI of the Schedule results in the higher numeral for each ear. See 38 C.F.R. § 4.86(a). Applying these findings to Table VII of the Schedule results in a 30 percent rating. The Board finds the September 2016 VA audiometric testing results probative and entitled to significant weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008). The Veteran was provided a VA examination in April 2017. However, the VA examiner determined they could not test the Veteran’s hearing threshold levels or conduct Maryland CNC speech discrimination tests, and that the tests results were not valid for rating purposes. See April 2017 VA examination. As such, the Board finds that the April 2017 VA examination is inadequate for decision making purposes and not entitled to any probative weight. See Nieves-Rodriguez, 22 Vet. App. at 302 (2008). The Board notes the Veteran submitted a June 2017 private audiometric examination. However, there is no indication the private examiner conducted Maryland CNC speech discrimination testing. Therefore, the June 2017 private examination cannot be used to rate the Veteran’s bilateral hearing loss. See 38 C.F.R. § 4.85(a) (an examination for hearing impairment for VA purposes must include a controlled speech discrimination test (Maryland CNC)). Therefore, the June 2017 private examination is inadequate for decision making purposes and is entitled to limited probative weight. See Nieves-Rodriguez, 22 Vet. App. at 302 (2008). The Veteran was afforded a second VA examination in June 2019. For the right ear, the audiometric findings showed 35 decibels at 1,000 Hz, 70 decibels at 2,000 Hz, 65 decibels at 3,000 Hz, and 75 decibels at 4,000 Hz. For the left ear, audiometric findings showed 40 decibels at 1,000 Hz, 70 decibels at 2,000 Hz, 70 decibels at 3,000 Hz, and 75 decibels at 4,000 Hz. The VA audiologist noted the Veteran had poor speech recognition ability bilaterally at 80 percent. The Puretone threshold averages were 61.25 for the right ear and 63.75 (rounded up to 64) for the left ear. The testing results from the June 2019 VA examination indicates an improvement in the Veteran’s bilateral hearing loss. However, current medical understanding is that sensorineural hearing loss does not improve. See Fountain v. McDonald, 27 Vet. App. 258 (2015). Additionally, the June 2019 VA examination is inconsistent with other evidence of record, including the Veteran’s reports that his hearing has worsened over the years and audiometric testing results before and after the June 2019 VA examination. See September 2016 and July 2018 VA treatment records; June 2017 private examination; December 2020 VA examination. Therefore, the Board finds the June 2019 VA examination is inadequate for rating purposes and not entitled to any probative weight. See Nieves-Rodriguez, 22 Vet. App. at 302 (2008). Accordingly, the Board finds that the competent evidence of record demonstrates the Veteran’s bilateral hearing loss meets the criteria for a 30 percent rating prior to December 17, 2020. Generally, the effective date for an increased rating should not be assigned mechanically based on the date of testing confirming an increase in disability. Instead, the evidence should be examined to determine the date the increase in disability first became factually ascertainable. See Swain v. McDonald, 27 Vet. App. 219, 224 (2015); DeLisio v. Shinseki, 25 Vet. App. 45, 56 (2011). In determining when an increase is “factually ascertainable,” all of the evidence of record must be considered, including testimonial evidence and expert medical opinions, and an effective date must be assigned based on that evidence. See McGrath v. Gober, 14 Vet. App. 28, 35-36 (2000). After reviewing all of the evidence of record, the Board finds that the increase in severity of the Veteran’s bilateral hearing loss was factually ascertainable as of September 12, 2016, the date of the VA audiometric testing results. Id.; September 2016 VA treatment records; 38 C.F.R. § 3.400(o)(2). To the extent that the Veteran contends that his bilateral hearing loss is more severe than reflected by the disability rating granted in this decision, the Board acknowledges that the Veteran can attest to factual matters of which he has first-hand knowledge and understanding as a lay person, such as difficulty hearing. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, he is not competent to state that his hearing acuity is of a severity sufficient to warrant a higher rating under VA’s tables for rating hearing loss disability because such an opinion requires medical expertise and knowledge that he has not been shown to possess. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). Consequently, the Board attaches more probative weight to the September 2016 VA treatment records that to the Veteran’s lay statements. Moreover, the assignment of disability ratings for hearing loss is primarily based upon a mechanical application of the rating criteria, as explained, and applied in this decision. In this case, the clinical evidence of record, when mechanically applied to the rating criteria, simply does not show that a rating in excess of 30 percent for the Veteran’s service-connected bilateral hearing loss is warranted at any time prior to December 17, 2020. In sum, the Board finds that a 30 percent disability rating, but no higher, is warranted from September 12, 2016 to December 16, 2020, for the Veteran’s service-connected bilateral hearing loss. To the extent the Veteran seeks a disability rating in excess of 30 percent prior to December 17, 2020, the Board finds the preponderance of the evidence is against the assignment of a higher rating for his bilateral hearing loss, the benefit of the doubt doctrine is not applicable, and the appeal must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). From December 17, 2020 In a January 2021 rating decision, the RO awarded the Veteran a 70 percent disability rating for his service-connected bilateral hearing loss, effective December 17, 2020, the date of his most recent VA examination. The Veteran was afforded a VA audiometric examination on December 17, 2020. The VA examiner noted the Veteran’s report of trouble hearing speech. See December 2020 VA examination. The VA examiner noted the Veteran’s bilateral hearing loss has worsened. Id. For the right ear, the audiometric findings showed 55 decibels at 1,000 Hz, 75 decibels at 2,000 Hz, 80 decibels at 3,000 Hz, and 80 decibels at 4,000 Hz. Id. For the left ear, audiometric findings showed 60 decibels at 1,000 Hz, 75 decibels at 2,000 Hz, 75 decibels at 3,000 Hz, and 80 decibels at 4,000 Hz. Id. Speech recognition was 48 percent for the Veteran’s right ear, and 20 percent for the left ear. Id. The Puretone threshold averages were 72.5 (rounded up to 73) for both ears. Applying these results to Table VI of the Schedule reveals numeric designations of Level VIII for the right ear and Level XI for the left ear. 38 C.F.R. § 4.85, Table VI. The Board notes, that Table VI of the Schedule results in the higher numeral for each ear. See 38 C.F.R. § 4.86(a). Applying these findings to Table VII of the Schedule results in a 70 percent rating. The Board finds the December 2020 VA examination probative and entitled to significant weight. See Nieves-Rodriguez, 22 Vet. App. at 302. The Veteran’s VA treatment records do not demonstrate any further reports of worsening hearing loss or treatment from December 17, 2020. The Veteran, nor his representative, has identified any further VA or private treatment records that would support a higher rating. Accordingly, the competent evidence of record does not reflect that the Veteran’s bilateral hearing loss warrants a staged disability rating in excess of 70 percent from December 17, 2020 currently assigned by the RO. To the extent the Veteran contends that his hearing loss is more severe than reflected by his current disability rating, the Board acknowledges that the Veteran can attest to factual matters of which he has first-hand knowledge and understanding as a lay person, such as difficulty hearing and communicating. Jandreau, 492 F.3d at 1377. However, he is not competent to state that his hearing acuity is of a severity sufficient to warrant a higher rating under VA’s tables for rating hearing loss disability because such an opinion requires medical expertise and knowledge that he has not been shown to possess. See Kahana, 24 Vet. App. at 435. Consequently, the Board attaches more probative weight to the December 2020 VA examination than to the Veteran’s lay statements. Moreover, the assignment of disability ratings for hearing loss is primarily based upon a mechanical application of the rating criteria, as explained, and applied in this decision. In this case, the clinical evidence of record, when mechanically applied to the rating criteria, simply does not show that a higher staged rating for the Veteran’s service-connected bilateral hearing loss is warranted. In sum, the Board finds that the criteria for a staged disability rating in excess of 70 percent from December 17, 2020 has not been met. The assigned disability rating for the Veteran’s bilateral hearing loss is accurate and appropriately reflects his bilateral hearing loss from December 17, 2020. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not applicable, and the appeal must be denied. 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 53. (Continued on the next page)   Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Yancy v. McDonald, 27 Vet. App. 484, 495 (2016); Doucette v. Shulkin, 38 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Tiffany Dawson Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. P. Moore, 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.