Citation Nr: 21028250 Decision Date: 05/10/21 Archive Date: 05/10/21 DOCKET NO. 16-28 140 DATE: May 10, 2021 ORDER For the initial rating period from February 7, 2014, to December 7, 2020, a disability rating in excess of 50 percent for bilateral hearing loss is denied. For the initial rating period from December 7, 2020, forward, a disability rating in excess of 80 percent for bilateral hearing loss is denied. FINDINGS OF FACT 1. Prior to December 7, 2020, the Veteran's bilateral hearing loss manifested in no more than Level VIII hearing in his left ear and Level VIII hearing in his right ear, even when considering exceptional patterns of hearing impairment. 2. Since December 7, 2020, the Veteran's bilateral hearing loss has manifested in no more than Level XI hearing in his left ear and Level IX hearing in the right ear, even when considering exceptional patterns of hearing impairment. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 50 percent prior to December 7, 2020, for bilateral hearing loss are not met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.85, 4.86, Tables VI, VIA, VII, Diagnostic Code 6100 (2020). 2. The criteria for an initial rating in excess of 80 percent from December 7, 2020, for bilateral hearing loss are not met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.85, 4.86, Tables VI, VIA, VII, Diagnostic Code 6100 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from September 1967 to May 1969. This case is on appeal before the Board of Veterans' Appeals (Board) from a June2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York. The Veteran testified before the undersigned Veteran Law Judge in November 2019; a transcript is of record. These matters were previously before in November 2019, at which time the Board granted service connection for right ear hearing loss. As this grant rendered the claim for an initial increased rating for left earing hearing loss moot, the Board remanded the claim for an initial increased disability rating for bilateral hearing loss for appropriate action/adjudication to the RO. Subsequently, in a July 2020 rating decision, the RO granted service connection for bilateral hearing loss and assigned an initial 50 percent rating effective from February 7, 2014. In a December 2020 rating decision, the RO granted an increased rating of 80 percent effective from December 7, 2020, and continued to deny a rating in excess of 50 percent for the period prior to December 7, 2020. Although higher ratings have been granted, the issue remains in appellate status, as the maximum available benefit has not been granted. AB v. Brown, 6 Vet. App. 35, 38 (1993). 1. Entitlement to an initial evaluation in excess of 50 percent for bilateral hearing loss prior to December 7, 2020, and in excess of 80 percent thereafter. The Veteran seeks higher initial ratings for his service-connected bilateral hearing loss. During his hearing before the undersigned, he testified that he could only hear partial statements, that he struggled to communicate with students in his classroom, and that his hearing loss has negatively impacted/affected his quality of life. Applicable Law and Regulations Disability evaluations are determined by the application of the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Any reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. A disability may require re-evaluation in accordance with changes in a veteran's condition. It is thus essential, in determining the level of current impairment, that the disability be considered in the context of the entire recorded history. 38 C.F.R. § 4.1. 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). Factual Background and Analysis A May 2014 VA examination report reveals that the Veteran reported the following regarding his hearing loss: "It impacts me in living, every day, in relating to my family, functioning in social affairs, my job...words sound broken and there are missing words in my interactions...it takes a long time to process what people are saying." 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: HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 50 80 105 100 84 60 LEFT 20 75 100 95 73 64 Applying the results to Table VI, the findings yield a numeric designation of Level VIII in the right ear and Level VII in the left ear. Entering the resulting bilateral numeric designation of Level VIII for the right ear and Level VII for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a 40 percent disability rating under Diagnostic Code 6100. The pure tone thresholds of record do not reflect an exceptional pattern of hearing loss as contemplated by 38 C.F.R. § 4.86(a) because the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is not 55 decibels or more; and, as such, that provision is inapplicable. However, an exceptional pattern of hearing loss as contemplated by 38 C.F.R. § 4.86(b) is shown in the left ear because the documented pure tone thresholds for the Veteran are 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz for the left ear. Applying 38 C.F.R. § 4.86(b), Table VIA, to the audiological findings, the Veteran has a numeric designation of VI for the left ear. However, application of Table VI yields a higher numeral for the left ear, i.e., VII. As such, under 38 C.F.R. § 4.86(b), this numeral is then elevated to VIII (i.e., the next higher Roman numeral). Entering the resulting bilateral numeric designation of Level VIII for the right ear and Level VIII for the left ear to 38 C.F.R. § 4.85, Table VII, equates to the currently assigned 50 percent disability rating under Diagnostic Code 6100. The Veteran submitted a private audiological examination dated in October 2014. Pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Avg RIGHT 55 80 85 90 78 LEFT 30 80 95 95 75 It is unclear whether Maryland CNC speech recognition scores were used in the private audiological testing; however, an exceptional pattern of hearing loss is shown is the right ear under 38 C.F.R. § 4.86(a) and in the left ear under 38 C.F.R. § 4.86(b). Where an exceptional pattern of hearing loss is shown, the Board notes that the Hertz decibel readings from non-Maryland CNC evaluations can be applied to Table VIA. Applying the results to Table VIA yields Level VII in the right ear and Level VI in the left ear which is elevated to VII under 38 C.F.R. § 4.86(b). Entering the results to 38 C.F.R. § 4.85, Table VII, equates to a 40 percent disability rating under Diagnostic Code 6100. The Veteran submitted a private audiological examination dated in April 2015. Pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Avg RIGHT 45 80 110 110 86 LEFT 30 80 110 105 81 Speech discrimination testing was performed using the NU-6 (Northwestern University Auditory Test Number Six); however, an exceptional pattern of hearing loss is shown in the left ear under 38 C.F.R. § 4.86(b). Where an exceptional pattern of hearing loss is shown, the Board notes that the Hertz decibel readings from non-Maryland CNC evaluations can be applied to Table VIA. Applying the results to Table VIA yields Level VIII in the right ear and Level VIII when elevated to the next higher Roman numeral under 38 C.F.R. § 4.86(b). Entering the results to 38 C.F.R. § 4.85, Table VII, equates to a 50 percent disability rating under Diagnostic Code 6100. The Veteran underwent a VA audiological evaluation in June 2015. The examiner expressly noted that speech discrimination testing was performed using the NU-6 test. The examiner did not otherwise certify that the use of the speech discrimination test was not appropriate because of language difficulties, inconsistent speech discrimination scores, etc., and there was no exceptional pattern of hearing loss under 38 C.F.R. § 4.86. Accordingly, the audiometric evaluation is not adequate for rating purposes under 38 C.F.R. § 4.85(a). The Veteran submitted a private audiological examination dated in May 2016. Pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Avg RIGHT 55 80 100 95 83 LEFT 45 85 110 110 88 It is unclear whether Maryland CNC speech recognition scores were used in the private audiological testing; however, an exceptional pattern of hearing loss is shown is the right ear under 38 C.F.R. § 4.86(a). Where an exceptional pattern of hearing loss is shown, the Board notes that the Hertz decibel readings from non-Maryland CNC evaluations can be applied to Table VIA. Applying the results to Table VIA yields Level VII in the right ear and Level VIII in the left ear. Entering the results to 38 C.F.R. § 4.85, Table VII, equates to a 40 percent disability rating under Diagnostic Code 6100. The Veteran underwent a VA audiological evaluation in October 2019. The examiner used the NU-6 speech discrimination test and there was no response (NR) in the right ear at 3000 and 4000 Hz and in the left ear at 3000 Hz. Accordingly, the audiometric evaluation is not adequate for rating purposes under 38 C.F.R. § 4.85(a). The Veteran underwent his most recent VA audiological examination on December 7, 2020. The functional impact of his hearing loss was described as follows: "Difficulty following conversations, hearing the television, and on the phone. He gets noticeably emotional when trying to communicate without his hearing aids. It has affected him physically and emotionally." Martinak, supra. The Veteran's Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 70 90 105 105 93 48 LEFT 40 90 105 105 85 20 Applying the results to Table VI, the findings yield a numeric designation of Level IX in the right ear and Level XI in the left ear. Entering the resulting bilateral numeric designation of Level VIII for the right ear and Level VII for the left ear to 38 C.F.R. § 4.85, Table VII, equates to an 80 percent disability rating under Diagnostic Code 6100. The Board notes that the Veteran exhibited an exceptional pattern of hearing loss as contemplated by 38 C.F.R. § 4.86(a) in his right ear, however applying 38 C.F.R. § 4.86 (a) does not result in higher numeric designation when using Table VIA. To summarize, based on the evidence outlined above, prior to December 7, 2020, the Veteran's bilateral hearing loss manifested in no more than Level VIII hearing in his left ear and Level VIII hearing in his right ear (even when considering exceptional patterns of hearing impairment). Since December 7, 2020, his bilateral hearing loss has manifested in no more than Level XI hearing in his left ear and Level IX hearing in the right ear (even when considering exceptional patterns of hearing impairment). Accordingly, an initial rating in excess of 50 percent prior to December 7, 2020, and in excess of 80 percent thereafter for the service-connected bilateral hearing loss disability is not warranted. The Board expressly acknowledges its consideration of the lay evidence of record when adjudicating this claim, including the Veteran's reports of difficulties following conversations, hearing the television, and communicating with students, and that it affects every aspect of his life. 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 main complaint is reduced hearing acuity and clarity, which is what is contemplated in the rating assigned. See Rossy v. Shulkin, 29 Vet. App. 142, 145 (2017). Accordingly, the preponderance of the most probative evidence is against the claim of entitlement to an initial rating in excess of 50 percent for bilateral hearing loss prior to December 7, 2020, and in excess of 80 percent thereafter. In reaching the conclusion above, the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). [SIGNATURE ON NEXT PAGE] JONATHAN B. KRAMER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H. Hoeft 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.