Citation Nr: 21029155 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 13-14 451 DATE: May 12, 2021 ORDER The claim for an initial compensable evaluation for left ear hearing loss prior to May 7, 2013 is denied. The claim for an initial compensable evaluation for bilateral hearing loss beginning May 7, 2013 is denied. FINDINGS OF FACT 1. Prior to May 7, 2013, service connection was in place for only left ear hearing loss. 2. Prior to May 7, 2013, the service-connected left ear hearing loss was manifested by no more than Level I hearing loss. 3. Beginning May 7, 2013, the service-connected bilateral hearing loss is manifested by no worse than Level I hearing loss in the left ear and no worse than Level I hearing loss in the right ear. CONCLUSIONS OF LAW 1. Prior to May 7, 2013, the criteria for an initial compensable evaluation for left ear hearing loss are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85, Diagnostic Code 6100. 2. Beginning May 7, 2013, the criteria for an initial compensable evaluation for bilateral hearing loss are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85, Diagnostic Code 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the U.S. Air Force on active service from March 1968 to May 1970. This appeal comes before the Board of Veterans Appeals (Board) from a February 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In August 2016, the Veteran and his witness, his spouse, testified by video-teleconference before a Veterans Law Judge (VLJ) who is no longer with the Board. A transcript of the hearing is associated with the claims file. In July 2020, the Board provided the Veteran with an opportunity to testify before a VLJ who would participate in his decision. The Veteran was informed that if he did not respond within 30 days of the letter, the Board would accept the non-response to indicate the Veteran did not want another hearing. The Veteran did not respond. The Board finds it has fulfilled its duty to provide an opportunity for a hearing. In February 2020, the RO provided the Veteran with a statement of the case concerning the issue of an initial evaluation greater than 10 percent for the service-connected tinnitus. The Veteran did not file a timely substantive appeal. Accordingly, the issue is not on appeal. In a December 2013 rating decision, service connection for right ear hearing loss was granted, and a noncompensable evaluation was assigned, effective May 7, 2013. Prior to May 7, 2013, hearing loss was service connected only in the left ear. However, as hearing loss is meant to be evaluated bilaterally where both ears are service connected, the issue became entitlement to an initial compensable evaluation for bilateral hearing loss as of the effective date the right ear hearing loss was granted. Moreover, at the August 2016 Board hearing, the Veteran provided testimony concerning bilateral hearing loss and, at that time, the issue on appeal was defined as entitlement to a compensable rating for bilateral hearing loss. Thus, there are two periods of time properly on appeal, prior to May 7, 2013, when service connection for left hearing loss, only, was in effect, and beginning May 7, 2013, when service connection for bilateral hearing loss came into effect. The issues have been recharacterized as reflected on the front page of this decision. This claim was remanded in 2018, 2019, and 2020 for further development, to include additional VA examination. Directed development having been completed, the case is now again before the Board. In the August 2016 hearing, the VLJ informed the Veteran that private medical evidence submitted in support of his claim could not be used because Puretone thresholds were represented in graph, not numerical, form. In addition, it was not indicated whether speech discrimination testing was done using the Maryland CNC Test, as required by regulations. The Veteran was given the opportunity to submit clarifying evidence, but submitted only March 2016 private test results with the same deficiencies. The claim was therefore remanded in 2018, in part, to provide the Veteran an opportunity to again obtain clarification of these records or, in the alternative, to provide consent for VA to obtain the information on its own. In an April 2018, VA explained what was needed and provided VA Form 21-4142a, General Release for Medical Provider Information to VA, to allow the VA to obtain the relevant private treatment records on the Veteran's behalf. However, the Veteran's representative responded in a July 2018 statement that all efforts to obtain the subject private hearing results had failed, and that there were no additional documents to add to the claim. Thus, the Board finds that VA fulfilled its responsibility to assist the Veteran in obtaining these documents, and that said records are unavailable. The Board finds that the agency of original jurisdiction (AOJ) has fulfilled the duty to notify and assist the Veteran in substantiating his claim for VA benefits, as prescribed in 38 U.S.C. §§ 5100, 5102, 5103, 5109A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). All other identified and relevant records have been obtained or appropriate efforts to secure them have been undertaken. Additional VA examinations were accorded the Veteran as a result of 2018, 2019, and 2020 Board remands. See 38 U.S.C. § 5103A(d), 38 C.F.R. § 3.159(c)(4), and McLendon v. Nicholson, 20 Vet. App. 79 (2006). Neither the Veteran nor his representative have argued against a finding that the AOJ has not ultimately met its duty to assist. The Board thus finds that the AOJ has met its duty to assist and further remand is not required. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Disability ratings are assigned in accordance with VA's Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. See 38 U.S.C. § 1155; 38 C.F.R. § § 3.321(a), 4.1. Separate diagnostic codes identify the various disabilities. 38 U.S.C. Part 4. "Staged" ratings are appropriate for any rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Disability evaluations for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Examinations are conducted using the controlled speech discrimination tests together with the results of the pure tone audiometry test. See 38 C.F.R. § 4.85. The results are analyzed using tables contained in 38 C.F.R. § 4.85, Code 6100. The rating schedule for hearing loss provides that evaluations of hearing loss range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests together with average hearing threshold levels as measured by pure tone audiometry tests in the frequencies 1000, 2000, 3000 and 4000 cycles per second (Hertz). To evaluate the degree of disability from defective hearing, the rating schedule established eleven auditory acuity levels designated from Level I for essentially normal acuity through Level XI for profound deafness. 38 C.F.R. § 4.85, Code 6100. The Veteran asserts his hearing loss impairment has increased in severity. a) Before May 7, 2013 Where impaired hearing is service connected in only one ear, the nonservice-connected ear will be assigned Level I hearing loss for the purpose of determining the percentage evaluation from Table VII, subject to the provisions of 38 C.F.R. § 3.383. See 38 C.F.R. § 4.85(f). The provisions of 38 C.F.R. § 3.383 do not apply in this case, as will be established below, as the Veteran does not have hearing loss in the left ear compensable to a degree of 10 percent, including prior to May 7, 2013. In addition, the hearing impairment as a result of the nonservice-connected disability meeting the provisions of 38 C.F.R. § 3.385 until May 7, 2013, at which time it was service-connected by the AOJ. A September 2010 examination report reflects puretone thresholds, in decibels: Hertz 1000 2000 3000 4000 Avg Left 25 30 45 50 37.5 Speech discrimination score was 94 percent in the left ear using the Maryland CNC list. These results correspond to a Level I hearing impairment in the service-connected left ear. Level I hearing impairment is assigned to the nonservice-connected right ear, in accordance with 38 C.F.R. § 4.85(f). This equates to a noncompensable rating for left ear hearing loss. 38 C.F.R. § 4.85, Code 6100. The medical evidence does not support an evaluation greater than zero percent for the service-connected left ear hearing loss, as the medical evidence does not show findings of greater than Level I hearing loss in the left ear, and service connection was not in effect for the right ear hearing loss at any time prior to May 7, 2013. b) Beginning May 7, 2013 The November 2013 examination report reflects puretone thresholds, in decibels: Hertz 1000 2000 3000 4000 Avg Right 30 30 30 30 30 Left 30 35 55 50 43 Speech discrimination score was 94 percent in the right ear and 94 percent in the left ear using the Maryland CNC list. These results correspond to a Level I hearing impairment in the right ear and a Level I hearing impairment in the left ear. This equates to a noncompensable percent rating for bilateral hearing loss. 38 C.F.R. § 4.85, Code 6100. In December 2018, the Veteran underwent additional VA examination, but the VA examiner marked all results "could not test". The Board therefore remanded the claim in July 2019 and again in October 2020, at which time a face to face audiological test was requested. However, due to the COVID pandemic, the test could not be conducted until March 2021. The March 2021 examination report reflects puretone thresholds, in decibels: Hertz 1000 2000 3000 4000 Avg Right 35 40 50 55 45 Left 40 50 55 65 53 Speech discrimination score was 94 percent in the right ear and 94 percent in the left ear using the Maryland CNC list. These results correspond to a Level I hearing impairment in the right ear and a Level I hearing impairment in the left ear. This equates to a noncompensable percent rating for bilateral hearing loss. 38 C.F.R. § 4.85, Code 6100. The medical evidence does not support an initial evaluation greater than zero percent for the service-connected bilateral hearing loss, as the medical evidence does not show findings of greater than Level I hearing loss in the right ear or Level I hearing loss in the left ear at any time beginning May 7, 2013. Alternative methods for determining hearing acuity are provided in 38 C.F.R. §§ 4.85 and 4.86. However, the alternate method is not for application in the Veteran's case, because no VA examiner has certified that the use of the speech discrimination test is not appropriate, and because the medical evidence does not show the Veteran has Puretone thresholds at 30 decibels or less at 1000 Hz and 70 decibels or more at 2000 Hz in either ear, or at 55 or more in each of the four frequencies (1000, 2000, 3000, 4000 Hz) in either ear. The Veteran has reported that his hearing loss makes it difficult for him to understand speech at work, and in quiet and background noise. His main complaint is speech clarity, especially with background noise. He reports that he must ask speakers for frequent repetitions, and he sets the television and radio volumes at an inordinately loud level. In his August 2016 hearing, the Veteran and his witness testified under oath the Veteran had nearly lost a job due to a customer complaint that he ignored the customer. He testified he could not hear the customer. He later explained the situation to his employer, who understood and helped resolve the situation. The Veteran's witness, his wife, testified that the Veteran could not hear car horns or emergency vehicles on the road, or sounds of potential problems with the car. He did not hear thunder or the television, she reported; and he sometimes made inappropriate answers to questions asked of him due to his hearing impairment. She further stated she had to repeat herself frequently and even yell to be heard. However, when a claimant's hearing loss results in an inability to hear or understand speech or to hear other sounds in various contexts, those effects are contemplated by the schedular rating criteria, discussed, and applied above. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). Accordingly, an initial compensable rating for the Veteran's left ear hearing loss is not warranted prior to May 7, 2013 and beginning May 7, 2013 an initial compensable evaluation for service-connected bilateral hearing loss is not warranted. Katherine Kiemle Buckley Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Bakke, Lila J. 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.