Citation Nr: 21026893 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 16-33 772 DATE: May 4, 2021 ORDER A rating higher than 0 percent (so a compensable rating) prior to July 28, 2014, or a rating higher than 10 percent since, for bilateral hearing loss, is denied. FINDING OF FACT From July 28, 2014 onward, but not before, the Veteran has had Level II hearing loss in his right ear and Level VI in his left ear, at worst. CONCLUSION OF LAW The criteria are not met for entitlement to a rating higher than 0 percent prior to July 28, 2014, or to a rating higher than 10 percent since, for bilateral hearing loss. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code (DC/Code) 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1969 to November 1971. This claim was last before the Board of Veterans' Appeals (Board) in October 2018 when it was remanded back to the Agency of Original Jurisdiction (AOJ) (i.e., local Regional Office (RO)) to further assist the Veteran in developing his claim by scheduling a new VA audiology examination to reassess the severity of his bilateral hearing loss. And, partly based on the results of that VA examination, also the report of another hearing evaluation he underwent years earlier at Costco Hearing Aid Center, his bilateral hearing loss disability rating was increased from 0 percent (noncompensable) to 10 percent retroactively effective from July 28, 2014, so back to the date of receipt of that earlier audio report from Costco Hearing Aid Center. But, as that increase is not the highest possible rating and was not made retroactive at least from the date of receipt of his claim for a higher rating for this service-connected disability, which he earlier filed on March 7, 2012, if not from some even earlier point during the immediately preceding year, that increase in rating did not abrogate his appeal. See AB v. Brown, 6 Vet. App. 35, 38-39 (1993). However, his appeal now concerns whether he was entitled to a rating higher than 0 percent prior to July 28, 2014 (i.e., from one year prior to receipt of his increased-rating claim, so from March 7, 2011), and whether he has been entitled to a rating higher than 10 percent since July 28, 2014. Entitlement to a rating higher than 0 percent prior to July 28, 2014, and to a rating higher than 10 percent since for the bilateral hearing loss The Veteran contends that his bilateral (left and right ear) hearing loss warrants higher ratings. The RO already has "staged" the rating by increasing it, on remand, from 0 to 10 percent retroactively effective as of July 28, 2014. This staging of the rating is meant to compensate the Veteran for the change in severity (worsening) of this disability during the rating period under review. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. When evaluating the severity of a disability, it is essential the disability is considered in the context of its entire recorded history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation already has 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). But, as already alluded to, if the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings, then separate ratings may be assigned for separate periods of time based on the facts found. This practice is known as "staged" ratings and is employed for initial or established ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. In general, it is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. 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 Veteran. 38 C.F.R. § 4.3. According to 38 C.F.R. § 3.400(o)(2), the effective date in a claim for an increased rating may be up to one year prior to the date of receipt of the increased rating claim provided the evidence reflects a worsening of the disability during that immediately preceding year. In other words, this entitlement to a higher rating must be factually ascertainable during that immediately preceding year. See Harper v. Brown, 10 Vet. App. 125 (1997); see also Gaston v. Shinseki, 605 F.3d 979 (Fed. Cir. 2010) (explaining that the legislative history of 38 U.S.C. § 5110(b)(2) was to provide Veterans a one-year "grace period" for filing a claim following an increase in severity of a service-connected disability). Therefore, here, since the Veteran filed his increased-rating claim on March 7, 2012, the review period starts one year prior to that, so as of March 7, 2011. Ratings for hearing loss are determined in accordance with the findings obtained on audiometric examination. Evaluations of hearing impairment range from noncompensable (i.e., 0 percent) to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests, 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 cycles per second (Hertz (Hz)). To evaluate the degree of disability from hearing impairment, the Rating Schedule establishes eleven auditory acuity levels designated from Level I for essentially normal acuity through Level XI for profound deafness. 38 C.F.R. § 4.85, DC 6100. As set forth in the regulations, Tables VI, VIA, and VII are used to calculate the rating. See 38 C.F.R. § 4.85, DC 6100. Hearing tests are conducted without hearing aids, and the results are charted on Table VI and Table VII. See 38 C.F.R. § 4.85. Table VI is used to determine the Roman numeric designation, based on test results consisting of puretone thresholds and Maryland CNC test speech discrimination scores. The numeric designations are then applied to Table VII to determine the appropriate rating for hearing impairment. Alternatively, VA regulations provide that, in cases of exceptional patterns of hearing impairment, when the pure tone thresholds at each of the four specified frequencies (1,000, 2,000, 3,000 and 4,000 Hertz) is 55 decibels or more, 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. Each ear will be evaluated separately. 38 C.F.R. § 4.86(a). The provisions of 38 C.F.R. § 4.86(b) further provide that, when the pure tone threshold is 30 decibels or less at 1,000 Hertz, and 70 decibels or more at 2,000 Hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever would result in the higher numeral. All of that said, the Board finds that a rating greater than 0 percent was not warranted for the Veteran's bilateral hearing loss prior to July 28, 2014, and a rating higher than10 percent has not been warranted since. On remand, the Veteran's January 2019 VA audiological evaluation pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 Avg. RIGHT 10 25 65 75 85 62.5 LEFT 20 60 70 80 85 73.75 Speech audiometry revealed speech recognition ability of 92 percent in the right ear and of 76 percent in the left ear. Regarding his right ear, applying the results of this audiological examination to Table VI yields Roman numeral designation II. See 38 C.F.R. § 4.85. Regarding his left ear and applying the same results, Table VI yields a Roman numeral designation V. However, an exceptional pattern of hearing loss is established for the left ear. Applying his audiology results to Table VIA yields a designation VI, the higher of the two. Applying these values (Level VI hearing loss in his left ear and Level II in his right) to Table VII correlates to a 10 percent rating. Id. During VA audiology examinations, the audiologist must describe the functional effects caused by a hearing loss disability in the final report. See Martinak v. Nicholson, 21 Vet. App. 447, 455-456 (2007). In this regard, the Veteran stated that he has difficulty hearing speech, particularly at restaurants and church. It affects his ability to communicate with this family, including his grandchildren. While serious, these complaints are symptoms of hearing loss and contemplated by the schedular criteria. Therefore, they do not provide a basis for any rating higher than what is assigned based on application of §§ 4.85 and 4.86. The Veteran filed his claim for increased rating on March 7, 2012. His claim stated that his hearing had gotten worse but did not address symptoms, treatment, or other basis for the assertion. In response to his claim, the Veteran was provided an August 2013 VA audiological evaluation, during which his pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 Avg. RIGHT 15 20 60 75 70 56.25 LEFT 15 30 70 85 80 66.25 Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 86 percent in the left ear. Applying the results of his right ear audiological examination to Table VI yields Roman numeral designation I. See 38 C.F.R. § 4.85. Regarding his left ear and applying the same results, Table VI yields a Roman numeral designation III. Again, exceptional hearing loss is established for the left ear. Applying his results to Table VIA yields a designation V, the higher of the two. Applying these higher values III and V to Table VII correlates to a 0 percent rating. Id. So, the results of that earlier VA examination do not provide grounds for assigning a rating higher than 0 percent for the Veteran's bilateral hearing loss. The first suggestion of the Veteran's bilateral hearing loss meeting the requirements for the higher 10 percent rating was the audio reported later received on July 28, 2014 from Costco Hearing Aid Center. That report did not include the Maryland CNC speech discrimination test, as 38 C.F.R. § 4.85(a) requires, but it nonetheless suggested a worsening of the Veteran's disability, and that worsening since was confirmed during the January 2019 VA audiological examination he additionally had on remand. Thus, the earliest effective date he may receive the higher 10 percent rating is the date of receipt of that audio report from Costco Hearing Aid Center. In other words, that was the "date entitlement arose" to this higher rating, which was not established until after receipt of his claim for a higher rating for his bilateral hearing loss disability. See Harper, 10 Vet. App at 126, citing 38 C.F.R. § 3.400(o)(1). In sum, no rating higher than 0 percent was warranted prior to July 28, 2014, and no rating higher than 10 percent has been warranted since. Moreover, as further concerning the functional effects of the disability, a panel decision issued in December 2017 by the higher U. S. Court of Appeals for Veterans Claims (Veterans Court/CAVC) affirmed a December 2015 Board decision that, like here (at least prior to July 28, 2014), had denied a compensable schedular rating for bilateral hearing loss, as well as referral for a rating based on extra-schedular consideration under 38 C.F.R. § 3.321(b)(1). See Rossy v. Shulkin, 29 Vet. App. 142 (2017). That appeal to the Court was filed after the Court decided Doucette v. Shulkin, 28 Vet. App. 366 (2017), which had affirmed a Board decision denying extra-schedular referral when only the functional effects alleged were aspects of hearing loss. The Court concluded that Doucette directed the outcome of the appeal in Rossy, as well. In Doucette, the Court addressed how to conduct an extra-schedular analysis, specifically, the first Thun inquiry in the contest of a hearing loss claim. The Court held that the rating criteria for §§ 4.85 and 4.86 contemplate, and thus compensate for, the functional effects of hearing loss, namely, difficulty understanding speech and the inability to hear sounds in various contexts. While leaving open the possibility that extra-schedular consideration for hearing loss might be warranted by other symptoms or functional effects associated with that disability, the Court further held that extra-schedular referral is not reasonably raised when complaints of difficulty hearing are the only complaints of record. The Court saw no basis to distinguish that appeal from Doucette; as in this case, the only hearing loss problem alleged by the Appellant was difficulty understanding conversations, particularly in noisy or crowded circumstances (i.e., with background noise). Absent other factors, the Court found that this sort of complaint is squarely within the type of symptoms and functional effects contemplated and compensated by VA's schedular rating criteria. The Court found that the Appellant had failed to demonstrate any error regarding his bilateral hearing loss. The Court affirmed the Board's decision. Recognizing all of this, the threshold element for extra-schedular consideration is not met and any further consideration of governing norms or referral to the appropriate VA officials for extra-schedular consideration is unnecessary. See Thun v. Peake, 22 Vet. App. 111 (2008). The Board recognizes the Veteran's reports of his symptoms, and the challenges he faces as a result of his hearing loss. However, the Rating Schedule requires specific diagnostic testing in order to assign a rating under DC 6100. As a layman, he is not competent to opine on the severity of his bilateral hearing loss in relation to the criteria of the Rating Schedule which as mentioned, instead, require objective testing of his hearing acuity in certain, specific frequencies, and measuring speech discrimination. Layno v. Brown, 6 Vet. App. 465 (1994). Accordingly, the preponderance of the evidence is against awarding a rating higher than 0 percent prior to July 28, 2014, or a rating higher than 10 percent since. And, the benefit of the doubt rule is inapplicable because there is not the needed relative balance of evidence for versus against the claim (equipoise), so the claim must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board W. Stearns, 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.