Citation Nr: 21029791 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 19-32 804 DATE: May 17, 2021 ORDER Entitlement to a disability rating in excess of 10 percent for bilateral hearing loss for the period prior to December 30, 2019, is denied. Entitlement to a disability rating of 30 percent (increased from 10 percent), but no higher, for bilateral hearing loss for the period from December 30, 2019, to February 21, 2021, is granted. Entitlement to a disability rating in excess of 30 percent for bilateral hearing loss for the period from February 22, 2021, onward, is denied. FINDINGS OF FACT 1. For the period prior to December 30, 2019, the Veteran's bilateral hearing loss manifested in no higher than Level IV hearing impairment in the right ear and Level III hearing impairment in the left ear on authorized VA audiology testing or qualifying compliant audiology testing. 2. On December 30, 2019, the Veteran reported to VA a worsening of his experienced hearing impairment, and the next assessment of the impairment for rating purposes in February 2021 confirmed the Veteran's report and revealed Level VIII hearing impairment in the right ear and Level V hearing impairment in the left ear. The Veteran's bilateral hearing loss has manifested in no higher than Level VIII hearing impairment in the right ear and Level V hearing impairment in the left ear on authorized VA audiology testing or qualifying compliant audiology testing. 3. For the period from December 30, 2019, onward, the Veteran's bilateral hearing loss has manifested in no higher than Level VIII hearing impairment in the right ear and Level V hearing impairment in the left ear on authorized VA audiology testing or qualifying compliant audiology testing. CONCLUSIONS OF LAW 1. For the period prior to December 30, 2019, the criteria for a rating in excess of 10 percent for bilateral hearing loss disability have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.321, 4.85, Diagnostic Code 6100. 2. For the period from December 30, 2019, to February 21, 2021, the criteria for a rating of 30 percent, but no higher, for bilateral hearing loss disability have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.321, 4.85, Diagnostic Code 6100. 3. For the period from February 22, 2021, the criteria for a rating in excess of 30 percent for bilateral hearing loss disability have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.321, 4.85, Diagnostic Code 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1959 to August 1962. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2018 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO), the Agency of Original Jurisdiction (AOJ). This case was previously before the Board in December 2020, when it was remanded to the AOJ for additional development of the evidence. During the processing of the Board's December 2020 remand, the AOJ issued a rating decision in February 2021 that partially granted the Veteran's claim on appeal, awarding an increased 30 percent rating for bilateral hearing loss effective from February 22, 2021. The Veteran maintains the appeal seeking higher ratings for bilateral hearing loss for all portions of the rating period on appeal. The Veteran testified at a Board hearing before the undersigned in December 2020. A transcript of the hearing is of record. Increased Rating Disability ratings are based on average impairment in earning capacity resulting from a particular disability and are determined by comparing symptoms shown with criteria in VA's Schedule for Rating Disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two ratings apply, 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. 38 C.F.R. § 4.7. 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. An exception to these rules occurs when the rating criteria are successive. In such a case, all the requirements of the lower levels must be met before a higher level is awarded, so 38 C.F.R. §§ 4.7 and 4.21 do not apply. Johnson v. Wilkie, 30 Vet. App. 245 (2018). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case, with all reasonable doubt to be resolved in favor of the claimant; however, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. With a claim for an increased initial rating, separate staged ratings may be assigned based on facts found. Fenderson v. West, 12 Vet. App. 119 (1999). In a claim for increase in a previously established rating, the present level of disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where the evidence contains factual findings that demonstrate distinct time periods when the service connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, staged ratings are to be considered. See Hart v. Mansfield, 21 Vet. App. 505 (2007). When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Veteran's statements describing symptoms and conditions are competent evidence to the extent that one can describe one's own experiences. However, these statements must be viewed in conjunction with the medical evidence and the pertinent rating criteria. Lay evidence is not competent evidence concerning complex medical questions requiring specialized training or expertise. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (Whether lay evidence is competent and sufficient in a particular case is a fact issue to be addressed by the Board rather than a legal issue to be addressed by the Veterans' Court.) The Board notes that it has reviewed all of the evidence in the Veteran's record, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record but does not have to discuss each piece of evidence.). Hence, the Board will summarize the relevant evidence, as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or does not show, as to the claim. In McGrath v. Gober, 14 Vet. App. 28 (2000), the Court held that when evidence is created is irrelevant compared to when the Veteran was actually experiencing the symptoms. Thus, the Board will consider whether the evidence of record suggests that the severity of pertinent symptoms increased sometime prior to the date of the examination reports noting pertinent findings. The Board has also considered the history of the Veteran's disabilities prior to the rating period on appeal to see if it supports a higher rating during the rating period on appeal. Further references to the Veteran's pertinent disabilities are presented in additional evidence of record beyond the most detailed pertinent evidence discussed by the Board in this decision. The additional evidence of record does not present findings concerning the Veteran's pertinent disabilities that significantly expand upon, revise, or contradict the findings in the most detailed evidence discussed by the Board in this decision. 1. Entitlement to a disability rating in excess of 10 percent for bilateral hearing loss for the period prior to December 30, 2019, is denied. 2. Entitlement to a disability rating of 30 percent (increased from 10 percent), but no higher, for bilateral hearing loss for the period from December 30, 2019, to February 21, 2021, is granted. 3. Entitlement to a disability rating in excess of 30 percent for bilateral hearing loss for the period from February 22, 2021, onward, is denied. The Veteran contends that he is entitled to higher ratings for his service-connected bilateral hearing loss, asserting that the impairment has been more severe than the assigned ratings reflect. This claim arises on appeal from the initial rating determination accompanying the original grant of service connection for the bilateral hearing loss in May 2018. Accordingly, the rating period for consideration in this matter begins with the February 6, 2018, effective date of the award of service connection for bilateral hearing loss. The Veteran was afforded a VA examination to assess the severity of his service-connected hearing loss disability on appeal in April 2018. During the December 2020 Board hearing, the Veteran's testimony indicated that his hearing loss impairment had increased in severity since the April 2018 VA examination. The Board remanded the case for a new VA examination to develop an updated assessment of the severity of the Veteran's hearing loss. The Veteran was afforded the requested new VA examination in February 2021, and in a rating decision from later that month the AOJ determined that the February 2021 VA examination showed that the Veteran's hearing loss meets the criteria for a 30 percent rating. The AOJ awarded a 30 percent rating effective from the date of the February 2021 VA examination. The Board finds that the Veteran had previously alerted VA that he was experiencing bilateral hearing loss of greater severity than shown in the April 2018 VA examination report. The Veteran testified to this effect at the December 2020 Board hearing, but the Board finds that the Veteran had credibly presented such indications even earlier. VA treatment reports from September 2020 show that the Veteran reported a "possible change in hearing," "Hearing getting worse," "he is having more difficulty hearing." Earlier, in July 2020, the Veteran reported to VA providers: "hearing loss getting worse." Earlier still, VA treatment records show that in December 2019 the Veteran reported to his audiology treatment provider that "he feels his hearing may have worsened." The earliest VA audiology examination for rating purposes following the Veteran's reports of worsened hearing was the February 2021 VA rating examination that showed that the Veteran's hearing loss met the criteria for a 30 percent rating (as already established by the February 2021 rating decision). In the absence of persuasive contrary evidence, the Board finds it most reasonable in this case to associate the Veteran's reports of worsened hearing acuity with the measurements of hearing impairment produced in the earliest VA rating examination performed following the Veteran's report of the worsening. The Board finds that reasonable doubt can be resolved in the Veteran's favor to conclude that the 30 percent rating established based upon the February 2021 VA examination report has been warranted from the December 30, 2019, date of the Veteran's contemporaneous, competent, and credible report of the worsened hearing impairment. Accordingly, the Board finds that a 30 percent rating (increased from 10 percent) is warranted for the period from December 30, 2019. To this extent, the appeal is granted. The Board now turns attention to the remaining question as to whether the Veteran is entitled to a rating in excess of 10 percent prior to December 30, 2019, or a rating in excess of 30 percent after December 30, 2019. The Veteran's bilateral hearing loss has been rated under the provisions of 38 C.F.R. § 4.85, Diagnostic Code 6100. Disability ratings for hearing loss are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are performed. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Hearing loss disability ratings range from noncompensable to 100 percent based on organic impairment of hearing acuity, as measured by controlled speech discrimination tests in conjunction with the average hearing threshold, as measured by puretone audiometric tests in the frequencies 1000, 2000, 3000 and 4000 cycles per second. The Rating Schedule provides a table (Table VI) to determine for rating purposes a Roman numeral designation (I through XI) for hearing impairment, based on testing (by a state-licensed audiologist) including puretone thresholds and speech discrimination (using the Maryland CNC test). See 38 C.F.R. § 4.85. Examinations will be conducted without the use of hearing aids. The puretone threshold average is the sum of puretone thresholds at 1000, 2000, 3000, and 4000 Hertz, divided by 4. 38 C.F.R. § 4.85. In determining the actual degree of disability, the objective examinations are more probative of the specific degree of the Veteran's impairment than lay statements. Furthermore, the opinions and observations of the Veteran and other lay individuals alone cannot meet the burden imposed by the rating criteria under 38 C.F.R. § 4.85, Diagnostic Code 6100 with respect to determining the severity of his service-connected bilateral hearing loss disability. See Moray v. Brown, 2 Vet. App. 211, 214 (1993); 38 C.F.R. § 3.159(a)(1) and (2) (2015). Where the examiner certifies that use of the speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc., or when there is an exceptional pattern of hearing impairment (as defined in 38 C.F.R. § 4.86) the rating may be based solely on puretone threshold testing. See 38 C.F.R. § 4.85, Table VIA. The rating schedule establishes 11 auditory acuity levels designated from Level I for essentially normal hearing acuity, through Level XI for profound deafness. VA audiometric examinations are conducted using a controlled speech discrimination test together with the results of a puretone audiometric test. The horizontal lines in Table VI (in 38 C.F.R. § 4.85) represent nine categories of the percentage of discrimination based on the controlled speech discrimination test. The vertical columns in Table VI represent nine categories of decibel loss based on the puretone audiometric test. The numeric designation of impaired hearing (Levels I through XI) is determined for each ear by intersecting the horizontal row appropriate for the percentage of discrimination and the vertical column appropriate to the puretone decibel loss. The percentage rating is found from Table VII (in 38 C.F.R. § 4.85) by intersecting the horizontal row appropriate for the numeric designation for the ear having the better hearing acuity and the appropriate vertical column to the numeric designation level for the ear having the poorer hearing acuity. See 38 C.F.R. § 4.85(e). The provisions of 38 C.F.R. § 4.86(a) provide that when the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 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. The provisions of 38 C.F.R. § 4.86(b) provide that when the puretone 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 result provides the higher numeral. That numeral will then be elevated to the next higher Roman numeral. Each ear will be evaluated separately. If impaired hearing is service-connected in only one ear, in order to determine the percentage evaluation from Table VII, the non-service-connected ear will be assigned a Roman Numeral designation for hearing impairment of I, subject to the provisions of § 3.383. An April 2018 VA examination was completed to evaluate the Veteran's hearing acuity in each ear for rating purposes. The April 2018 VA examination report reveals that relevant puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT X 50 75 75 80 LEFT X 50 55 70 75 The Veteran's average pure tone threshold for the right ear was 70.00 decibels with a word recognition score of 82 percent (using the Maryland CNC word list). His average pure tone threshold for the left ear was 62.50 decibels (rounded to 63) with a word recognition score of 86 percent. Applying 38 C.F.R. § 4.85, Table VI to the April 2018 VA audiology data: the Veteran's right ear hearing loss was a Level IV impairment, and the left ear hearing loss was a Level III impairment. The Board has considered the provisions of 38 C.F.R. § 4.86, and finds that they do not apply as no exceptional pattern of hearing impairment is shown in this report. Applying the hearing levels from Table VI to Table VII, based on the results of the April 2018 examination findings, a 10 percent rating is derived. A February 2021 VA examination was completed to evaluate the Veteran's hearing acuity in each ear for rating purposes. The February 2021 VA examination report reveals that relevant puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT X 50 80 80 75 LEFT X 35 60 75 75 The Veteran's average pure tone threshold for the right ear was 71.25 decibels (rounded to 71) with a word recognition score of 52 percent (using the Maryland CNC word list). His average pure tone threshold for the left ear was 61.25 decibels (rounded to 61) with a word recognition score of 74 percent. Applying 38 C.F.R. § 4.85, Table VI to the February 2021 VA audiology data: the Veteran's right ear hearing loss is a Level VIII impairment, and the left ear hearing loss is a Level V impairment. The Board has considered the provisions of 38 C.F.R. § 4.86, and finds that they do not apply as no exceptional pattern of hearing impairment is shown in this report. Applying the hearing levels from Table VI to Table VII, based on the results of the February 2021 examination findings, a 30 percent rating is derived. Given the above, no further increase of disability ratings are warranted under the rating schedule for the Veteran's bilateral hearing loss in this case. A rating in excess of 10 percent is not warranted under the rating schedule for the Veteran's bilateral hearing loss for the period prior to December 30, 2019. A rating in excess of 30 percent is not warranted under the rating schedule for the Veteran's bilateral hearing loss for the period from December 30, 2019. The qualifying audiometry data of record accords with no ratings in excess of those currently assigned for these periods under Diagnostic Code 6100. The Board notes that in Martinak v. Nicholson, 21 Vet. App. 447, 455-56 (2007), the Court held that an examining VA audiologist must describe the functional effects caused by a hearing disability in his or her final report. Martinak, 21 Vet. App. at 455. The VA examination reports of record include descriptions of the functional effects caused by the Veteran's hearing loss. For instance, the April 2018 VA examination report documents that the Veteran described "hav[ing] to use hearing aids; still have problem understanding things on TV." The February 2021 VA examination report documents that the Veteran described "cannot understand what people say to him and he asks them to repeat," and "trying to hear out in public, in background noise, is particularly frustrating." These reports of functional impairment are consistent with the Veteran's other testimony of record, including in his June 2018 statement with his notice of disagreement and his December 2020 Board hearing testimony. The Board observes that the Veteran's shown and reported diminishment of hearing acuity and speech recognition are contemplated by the schedular rating criteria for hearing loss, and are precisely the nature of impairment the VA rating examinations and associated rating criteria are designed to measure. Additional references to the Veteran's hearing loss disability are presented in additional evidence of record beyond the most detailed pertinent evidence discussed by the Board in this decision. The Board notes that the Veteran has been followed and treated by VA audiology professionals who have made assessments of the Veteran's hearing and hearing-aid performance at times during the rating periods on appeal. The Board's discussion above has focused upon the most detailed evidence that features the specific types of specialized audiometric measurements of the Veteran's hearing acuity contemplated by the applicable rating criteria. The additional evidence of record does not present findings concerning the Veteran's hearing loss disability that significantly expand upon, revise, or contradict the findings in the most detailed and adequate evidence discussed by the Board in this decision. None of the other pertinent medical evidence of record presents findings significantly contrary to those in the most detailed evidence discussed above featuring the necessary specialized audiometric measurements of the Veteran's hearing acuity. Nor does any other evidence of record otherwise probatively indicate that the criteria for an increase of the disability ratings for hearing loss are met in this case. Thus, as explained above, the Board's analysis results in a finding that an increased 30 percent rating is warranted for bilateral hearing loss for the period from December 30, 2019, to February 22, 2021. The Board's analysis otherwise results in a finding that no further increased ratings are warranted for bilateral hearing loss in this case. This case presents the Board with a situation in which all of the qualifying competent audiological evidence shows audiometric data that fail to meet the quantitative criteria for further increased ratings. The audiometric reports of record reflect the testing and reporting of trained audiology professionals who are competent to prepare such reports. The Board notes that there is no indication that the audiometric reports of record are anything but reliable. The Board finds that the audiometric reports discussed above are highly probative evidence in evaluating the severity of the Veteran's hearing loss. The pertinent examination reports discussed above are not contradicted by any other probative evidence (no evidence of record shows audiometric findings meeting the criteria for further increased ratings for hearing loss in any portion of the rating period in this appeal). Thus, the Board finds the examination reports to be persuasive in showing that the Veteran's hearing loss has not met the criteria for further increased ratings during the periods for consideration. The criteria for even higher ratings for bilateral hearing loss have not been met. The Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record in connection with the hearing loss disability, beyond those addressed in this decision. See Doucette v. Shulkin, 28 Vet. App. 366 (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). M. C. GRAHAM Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Barone, 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.