Citation Nr: 21030736 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 15-44 435 DATE: May 19, 2021 ISSUE Entitlement to a compensable rating for a bilateral hearing loss disability prior to March 19, 2019 and in excess of 30 percent thereafter. ORDER Entitlement to a compensable disability rating prior to March 19, 2019, and in excess of 30 percent thereafter, for a bilateral hearing loss disability is denied. FINDING OF FACT The Veteran's bilateral hearing loss disability is no worse than level IV in the right ear and level II in the left ear prior to March 19, 2019, and no worse than level VI in each ear thereafter. CONCLUSION OF LAW The criteria for entitlement to a compensable rating prior to March 19, 2019, and in excess of 50 percent thereafter, for a service-connected bilateral hearing loss disability have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service from October 1967 to March 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2014rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO)in Newington, Connecticut. This case was previously before the Board in April 2019. In that April 2019 decision, the Board remanded the Veteran's claim for the purpose of obtaining an audiological examination to assess the current severity of this Veteran's bilateral hearing loss. See also, March 19, 2019 Appellant Brief re: request for Board remand to evaluate current severity of bilateral hearing loss. In a July 2020 rating decision, the Veteran's disability rating for his bilateral hearing loss, currently rated as noncompensable, was increased to 30 percent, effective March 19, 2019, the date of the Appellant Brief indicating a worsening of this Veteran's bilateral hearing loss disability. See July 21, 2020 Rating Decision. As this rating decision does not represent a full grant of benefits for the course of the appeal period, the issue before the Board is whether the Veteran is entitled to higher ratings for the period prior to March 19, 2019, and the period from March 19, 2019. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Entitlement to a compensable disability rating prior to March 19, 2019 and in excess of 30 percent thereafter. The Veteran contends that he is entitled to a higher disability rating for his bilateral hearing loss disability. See May 12, 2014 Notice of Disagreement (NOD); See also, November 30, 2015 VA Form 9. The Board notes that the Veteran's claim for his bilateral hearing loss disability was received on November 12, 2013. See November 12, 2013 VA Form 21-526-EZ. Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 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 the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321 (a), 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1 (2013); Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already 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). That said, higher evaluations may be assigned for separate periods based on the facts found during the appeal period. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). This practice is known as staged ratings. Id. In cases where the original rating assigned is appealed, as is the case with the Veteran's claims of entitlement to higher evaluations for the bilateral hearing loss consideration must be given to whether a higher rating is warranted at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). Hearing Loss In evaluating hearing loss, disability ratings are derived by a mechanical application of the Rating Schedule to the numeric designations assigned after audiometric evaluations are performed. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1922). Hearing loss disability evaluations range from noncompensable to 100 percent based on organic impairment of hearing acuity. Generally, the evaluation is determined after consideration of controlled speech discrimination ability and average hearing threshold, as measured by puretone audiometric tests in the frequencies 1,000 to 2,000, 3,000, 4,000 cycles per second (Hz). If, however, an examiner certifies that use of the speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc. the evaluation will be based solely on the Puretone threshold average. 38 C.F.R. § 4.85(c). If the evidence demonstrates the existence of exceptional patterns of hearing impairment, such as where testing reveals puretone thresholds of 55 decibels or more in each of the specified frequencies (1000, 2000, 3000 and 4000 Hz) or when the puretone threshold is 30 decibels or less at 1000 Hz and 70 or more decibels at 2000 Hz, the evaluation can be based on the puretone threshold average and speech discrimination ability or solely on puretone threshold average. 38 C.F.R. § 4.86. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Discussion During the course of this appeal, the Veteran was afforded VA Hearing Loss and Tinnitus Examinations in April 2014 and December 2019 to determine the severity of his Veteran's hearing loss disability. The Veteran also submitted June 10, 2013 audiometric test results in November 2013. See June 10, 2013 Audiological Evaluation. These June 2013 audiological results however did not contain a Maryland CNC word list utilized by the VA to evaluate hearing loss. See 38C.F.R. §4.85. Additionally, these results did not show puretone values at 4000 Hertz. Therefore, the Board finds these June 2013 audiometric test results inadequate for rating purposes. The Board also notes that the Veteran was afforded audiology evaluations in June 2015 and August 2019. These evaluations also did not indicate that they used the Maryland CNC word list in testing the Veteran. See 38 C.F.R. § 4.85. The Board notes that September 2015 treatment records show that the Veteran utilizes hearing aids due to his bilateral hearing loss. See September 28, 2015 treatment records (Hearing Aid Counseling). In this case, the Board finds that the VA Hearing Loss and Tinnitus Examinations conducted in April 2014 and December 2019 adequate for rating purposes. Each of these examinations considered the functional impact the Veteran's bilateral hearing loss disability had on the ordinary course of his life, including his ability to work. Further, each of these examinations included audiometric and speech discrimination testing. See 38 C.F.R. § 4.85. The Board now turns to a discussion of the April 2014 and December 2019 VA Hearing Loss and Tinnitus examinations the Veteran was afforded during the course of this appeal. While inadequate for rating purposes, the Board will also discuss the June 2015 and August 2019 audiology evaluations in the context of the Veteran's Hearing Loss and Tinnitus examinations. As referenced in the introduction of this decision, the Board's discussion will encompass the period prior to March 19, 2019, and the period from March 19, 2019. The April 9, 2014 VA Hearing Loss and Tinnitus audiometric results were as follows: Right Ear Hertz 500 1000 2000 3000 4000 6000 8000 Ave. Hz. 20 35 65 75 75 80 80 63 Left Ear Hertz 500 1000 2000 3000 4000 6000 8000 Ave. Hz. 15 35 55 65 65 75 60 55 Speech audiometry results using the Maryland CNC were 76 percent for the right ear and 84 percent for the left ear. The Veteran's hearing impairment was manifested by Level IV hearing acuity in the right ear and Level II hearing acuity in the right ear. The examiner determined that use of the word recognition score (Maryland CNC word list) was appropriate for the right ear and left ear. In this case, the Veteran's hearing loss did not meet the criteria for exceptional patterns of hearing impairment under 38 C.F.R. § 4.86 (a) or (b) and therefore will be evaluated according to 38 C.F.R. § 4.85. Applying Table VII, DC 6100, these audiometric results discussed above are consistent with a noncompensable disability rating. 38 C.F.R. § 4.85. Functional impact: The examiner assessed the functional impact the Veteran's hearing loss had on the ordinary conditions of life, including his ability to work. The examiner recorded the Veteran's hearing loss did not impact the ordinary conditions of daily life, including his ability to work. See April 9, 2014 Audiological examination, pgs. 1-4. In a June 22, 2015 audiology note, the audiology clinician recorded that the Veteran had normal hearing in the right ear through 500 Hertz with a moderate to severe sensorineural hearing loss at 1000-8000 Hertz. For the left ear, the examiner recorded that the Veteran had normal hearing at 250 Hertz with a mild to moderately severe sensorineural hearing loss at 500-8000 Hertz. The audiology clinician record that the Veteran's speech recognition was 88 percent for the right ear and 80 percent for the left ear. The audiology clinician recorded that today's test results remained essentially stable with a slight drop in the low frequencies for both ears when compared to the previous exam April 9, 2015. Results continue to support a sensorineural hearing loss in both ears. See June 22, 2015 Audiology Note. (The Board observes that although the audiology cilician recorded April 9, 2015, the most recent audiology examination was April 9, 2014.) In an August 5, 2019 audiology note, the clinician recorded that the Veteran had normal hearing at 250 Hertz with mild to severe sensorineural hearing loss at 500-8000 Hertz for the right ear. For the left ear, the examiner recorded that the Veteran had normal hearing at 250 Hertz with a mild to moderately severe sensorineural hearing loss at 500-8000 Hertz. The audiology clinician recorded that the Veteran's speech recognition was 84 percent for the right ear and 68 percent for the left ear. The audiology clinician recorded that today's test results indicated decreased hearing sensitivity for both ears when compared to the previous exam. Results continue to support a sensorineural hearing loss in both ears. The audiology clinician indicated that the Veteran's last audiology evaluation was June 22, 2015. See August 5, 2019 Audiology note. The Veteran's December 16, 2019 VA Hearing Loss and Tinnitus audiometric results were as follows: Right Ear Hertz 500 1000 2000 3000 4000 6000 8000 Ave. Hz. 45 60 75 80 85 85 85 73.75 Left Ear Hertz 500 1000 2000 3000 4000 6000 8000 Ave. Hz. 45 60 70 75 75 80 80 70 Speech audiometry results using the Maryland CNC were 48 percent for the right ear and 44 percent for the left ear. See December 16, 2019 Audiological examination, pgs. 3&9. With regards to the validity of puretone test results, the examiner reported that the Veteran puretone test results are not valid for rating purposes (not indicative of organic hearing loss). The examiner reported that the Veteran has abnormal tympanograms which can affect the results of puretone testing. This is further supported by the Veteran's hearing testing performed at the VA on August 5, 2019. His results from 250-500 are significantly different than his results today as well as his speech discrimination scores would be affected due to the elevated SRTs. Speech audiometry results using the Maryland CNC were 48 percent for the right ear and 44 percent for the left ear. See December 16, 2019 Audiological examination, pg. 3. With regards to the appropriateness of the use of speech discriminations scores for the right and eft and ear, (Maryland CNC Word List), the examiner reported that the use of the speech discrimination score is not appropriate for this Veteran because of language difficulties, cognitive problems, inconsistent speech discrimination scores, etc., that make combined use of puretone average and speech discrimination scores inappropriate. Id. at pgs. 3-4. As the puretone threshold at each of the four specified frequencies was 55 decibels or more, the Board has considered the provisions of 38 C.F.R. § 4.86 governing exceptional patterns of hearing impairment. Importantly, the December 2019 examiner determined that use of the speech discrimination score is not appropriate for this Veteran because of language difficulties, cognitive problems, inconsistent speech discrimination scores, etc., that make combined use of puretone average and speech discrimination scores inappropriate. Id. at pgs. 3-4. Therefore, using Table VIa, (Numeric Designation of Hearing Impairment Based Only On Puretone Threshold Average) the Veteran audiometric results (74 decibels in the right ear and 70 decibels in the left) equate to a Level VI in the right ear and a Level VI in the left ear. Using Table VII, these results warrant a 30 percent rating. Functional impact: The VA examiner assessed the functional impact the Veteran's hearing loss had on the ordinary conditions of life, including his ability to work. The examiner recorded the Veteran's hearing loss does not impact the ordinary conditions of daily life, including his ability to work. Id. at 4. Analysis The Board finds that based on the probative evidence of record, and affording the Veteran all reasonable doubt, the Veteran's bilateral hearing loss is no worse than level IV in the right ear and level II in the left ear prior to March 19, 2019, and no worse than Level VI in each ear thereafter. The Board has carefully reviewed the remaining record in its entirety, but finds no other probative evidence of record showing that the Veteran's bilateral hearing loss disability is more severe for compensation purposes than demonstrated on the audiological evaluations discussed above. Prior to March 19, 2019 Significantly, the Board observes that the June 22, 2015 audiology clinician reported that the Veteran's audiology test results remained essentially stable with a slight drop in the low frequencies for both ears when compared to the previous exam April 9, 2015. Results continue to support a sensorineural hearing loss in both ears. See June 22, 2015 Audiology Note. The Board observes that the August 2019 audiology clinician recorded that today's test results indicated decreased hearing sensitivity for both ears when compared to the previous exam. The audiology clinician indicated that the Veteran's last audiology evaluation was June 22, 2015. See August 5, 2019 Audiology note. While the clinician does indicate a worsening of this Veteran's bilateral hearing loss at this audiological evaluation, the clinician does not reference any other probative data with regards to the severity of this Veteran's bilateral hearing loss prior to March 19, 2019 or August 5, 2019. See August 5, 2019 Audiology note. The Board acknowledges the Veteran's representative's argument that it was not the fault of the Veteran that his VA Hearing Loss and Tinnitus examination was not scheduled until December 16, 2019 and that the Veteran's 30 percent disability rating should date back to when the claim was received in November 12, 2013. See April 27, 2021 Post Remand Appellant Brief, pgs. 1-2. However, the Board finds that there is no probative evidence of record that the Veteran's bilateral hearing warrants a higher rating than what has already been assigned prior to March 19, 2019. (See June 22, 2015 Audiology Note.) The Board also observes that the Veteran's January 5, 2016 VA 646 (Statement of Accredited Representative in Appealed Case) does not reference any evidence pointing to an increase in the severity of this Veteran bilateral hearing loss disability. See January 5, 2016, VA 646, pgs. 1-2 re: no legal way to assist with compensable evaluation; the Veteran's current objective test results fail to quantify such an action. The Board acknowledges the Veteran's assertion that "it is no fun living with hearing loss," and that he should be afforded a 20 30 percent compensation for his service-connected condition. See November 2015 VA Form 9. While the Board finds his statements to be credible regarding the impact his hearing loss has had on the ordinary conditions of his life, it finds that this factor do not provide sufficient evidence on which to award a higher rating for his bilateral hearing loss for the period prior to March 19, 2019 or thereafter. The Board reiterates that each VA Hearing Loss and Tinnitus examiner recorded the functional impact the Veteran's hearing loss disability had on the ordinary conditions of his life, including his ability to work. Each VA examiner recorded that the Veteran's hearing loss did not impact the ordinary conditions of his daily life, including his ability to work. See April 2014 Hearing Loss Examination, pg. 3; See also, December 2019 Hearing Loss Examination, pg. 5. The Board underscores that disability ratings 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). In this case, as explained above, the numeric designations of level IV in the right ear and level II in the left ear (depicted in the April 9, 2014 VA Hearing Loss and Tinnitus Examination) correlate to no greater than a noncompensable rating prior to March 19, 2019. See April 2014 Hearing Loss and Tinnitus Examination, pgs. 1-2. The Veteran's description of an inability to hear and discriminate speech has been measured according to puretone averages and speech discrimination and is contemplated by the schedular criteria. Doucette v. Shulkin, 28 Vet. App. 366 (2017). Therefore, a compensable rating for the Veteran's bilateral hearing loss disability prior to March 19, 2019 is not warranted. From the period of March 19, 2019 Additionally, the Veteran's hearing loss does not warrant a higher rating from March 19, 2019. In this regard, the Board has considered the provisions of 38 C.F.R. § 4.86 governing exceptional patterns of hearing impairment. Nevertheless, the most recent test results depicted in the December 16, 2019 VA Hearing loss examination correspond to a numeric value of VI in each ear which under the applicable criteria still warrant no higher than 30 percent rating. 38 C.F.R. § 4.85, Table VIA. Consequently, an increased rating for bilateral hearing loss from March 19, 2019 is denied. Id. As explained above, the December 2019 examiner determined that use of the speech discrimination score is not appropriate for this Veteran because of language difficulties, cognitive problems, inconsistent speech discrimination scores, etc., that make combined use of puretone average and speech discrimination scores inappropriate. See December 2019 Hearing Loss and Tinnitus Examination, pgs. 3-4. Therefore, using Table VIa, (Numeric Designation of Hearing Impairment Based Only On Puretone Threshold Average) the Veteran audiometric results (74 decibels in the right ear and 70 decibels in the left) equate to a Level VI in the right ear and a Level VI in the left ear. Using Table VII, these results warrant a 30 percent rating. The Board is bound by the explicit criteria stated in the Rating Code. This criteria measures hearing acuity directly in a controlled laboratory environment. Based on a review of the evidence, there are no probative objective audiometric evaluations to the contrary. See 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100. As noted above in this decision, the Board finds the April 2014 and December 2019 Hearing Loss and Tinnitus examinations adequate in assessing the level of severity of this Veteran's bilateral hearing loss disability during the course of this appeal. (Continued on next page.) The application of the rating schedule to the numeric designations assigned based on the VA audiological examination reports demonstrate that the appropriate rating for this Veteran's bilateral hearing loss disability warrants a noncompensable rating for the period prior to March 19, 2019, and no more than 30 percent thereafter. 38 C.F.R. § 4.85, Table VIA. Here, the Board finds that the preponderance of evidence is against the finding that a higher rating during any relevant period is warranted. As the preponderance of the evidence is against the Veteran's claim, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Michael A. Pappas Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Little, 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.