Citation Nr: 21031128 Decision Date: 05/20/21 Archive Date: 05/20/21 DOCKET NO. 16-12 182 DATE: May 20, 2021 ORDER An initial compensable disability rating for the service-connected bilateral hearing loss, for the period on appeal prior to January 8, 2020, is denied. A disability rating in excess of 40 percent for the service-connected bilateral hearing loss, from January 8, 2020 to March 10, 2021, is denied. A disability rating of 40 percent for the service-connected bilateral hearing loss, from March 10, 2021 onward, is granted. FINDINGS OF FACT 1. The evidence in the record shows that the Veteran's bilateral hearing loss disability manifested as no worse than Level III hearing loss, in each ear, for the appeal period prior to January 8, 2020. 2. The Veteran's bilateral hearing loss disability more nearly approximated Level VI hearing loss, in the left ear, and Level VII hearing loss in the right ear, from January 8, 2020 to March 10, 2021. 3. The Veteran's bilateral hearing loss disability picture did not improve from January 8, 2020 to March 10, 2021, and has remained of a similar level of severity as tested in January 2020. CONCLUSIONS OF LAW 1. The criteria for the assignment of a compensable disability rating for bilateral hearing loss, prior to January 8, 2020, have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1, 4.3, 4.85, 4.86, Diagnostic Code (DC) 6100 2. The criteria for a disability rating in excess of 40 percent for bilateral hearing loss, from January 8, 2020 to March 10, 2021, have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1, 4.3, 4.85, 4.86, DC 6100. 3. Resolving doubt in the Veteran's favor, the criteria for a disability rating of 40 percent for bilateral hearing loss, from March 10, 2021 onward, have been more nearly approximated. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1, 4.3, 4.85, 4.86, DC 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1975 to October 1980. The Veteran's DD Form 214 also reflects that the Veteran had an additional three years, ten months and one day of prior active service. The Veteran appeals an April 2015 Regional Office (RO) rating decision which granted service connection for hearing loss and assigned an initial noncompensable rating, effective from November 6, 2013. The Veteran timely appealed for a compensable rating. See May 2015 Notice of Disagreement (NOD) and March 2016 VA Form 9, substantive appeal to the Board. In August 2019, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the testimony is associated with the claims file In November 2019, the Board remanded the case for further development and adjudicative action. In a March 2021 rating decision, issued during the pendency of the appeal, the RO granted an increased disability rating for the bilateral hearing loss to 40 percent, effective January 8, 2020, and then assigned a 30 percent rating from March 10, 2021 onward. Increased Rating Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. When the evidence is in relative equipoise, the veteran is accorded the benefit of the doubt. 38 U.S.C. § 5107(b). Where, as here, the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. Fenderson v. West, 12 Vet. App. 119 (1999). Moreover, staged ratings are appropriate in any increased-rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). Disability ratings for service-connected hearing loss range from noncompensable to 100 percent based on the organic impairment of hearing acuity. Hearing impairment is measured by the results of controlled speech discrimination tests together with the average hearing threshold levels (which in turn, are measured by pure tone audiometric tests in the frequencies of 1000, 2000, 3000 and 4000 cycles per second (Hertz)). Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992) (defective hearing is rated on the basis of a mere mechanical application of the rating criteria). See also Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). An examination for hearing impairment for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a puretone audiometry test. 38 C.F.R. § 4.85(a). Examinations will be conducted without the use of hearing aids. Id. The provisions of 38 C.F.R. § 4.85, Table VI establish eleven auditory acuity levels represented by Roman numeral designations from I to XI based on a combination of puretone threshold average (vertical columns) and speech discrimination scores (horizontal rows). The Roman numeral designation is located at the point where the percentage of speech discrimination and puretone threshold average intersect. 38 C.F.R. § 4.85(b). Table VIa provides numeric designation of hearing impairment based only on puretone threshold average, and is used when the examiner certifies that use of the speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc., or when indicated under the provisions of 38 C.F.R. § 4.86. See 38 C.F.R. § 4.85(c). Puretone threshold average, as used in Tables VI and VIa, is the sum of the puretone thresholds at 1000, 2000, 3000, and 4000 Hertz, divided by four. This average is used in all cases (including those in 38 C.F.R. § 4.86) to determine the Roman numeral designation for hearing impairment from Table VI or VIa. 38 C.F.R. § 4.85(d). Table VII under 38 C.F.R. § 4.85, is used to determine the percentage evaluation (disability rating to be assigned) by combining the Roman numeral designations for hearing impairment of each ear. The horizontal rows represent the ear having the better hearing and the vertical columns the ear having the poorer hearing. The percentage evaluation is located at the point where the row and column intersect. 38 C.F.R. § 4.85(e). Cases involving exceptional patterns of hearing impairment are addressed under 38 C.F.R. § 4.86. When the pure tone 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. 38 C.F.R. § 4.86(a). Each ear is evaluated separately. Additionally, when the 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. 38 C.F.R. § 4.86(b). The numeral will then be elevated to the next higher Roman numeral. Id. Each ear will be evaluated separately. 1. Entitlement to an initial compensable disability rating for bilateral hearing loss, for period on appeal prior to January 8, 2020 2. Entitlement to a disability rating in excess of 40 percent for bilateral hearing loss, from January 8, 2020 to March 10, 2021 3. Entitlement to a disability rating in excess of 30 percent, from March 10, 2021 onward The Veteran seeks an initial compensable disability rating for the period on appeal prior to January 8, 2020; a disability rating in excess of 40 percent from January 8, 2020 to March 10, 2021; and a disability rating in excess of 30 percent from March 10, 2021 onward. The record contains audiograms from February 2014, February 2015, April 2015, January 2020, and March 2021. The February 2014 private audiogram revealed the following puretone thresholds (in dB): HERTZ 500 1000 2000 3000 4000 RIGHT 15 5 45 80 100 LEFT 25 10 55 70 80 The puretone average (of 1000, 2000, 3000 & 4000 Hz) was 57.5 in the right ear and 53.75 in the left ear. The audiogram findings do not include speech discrimination scores using the Maryland CNC word list. The February 2015 private audiogram revealed the following puretone thresholds (in dB): HERTZ 500 1000 2000 3000 4000 RIGHT 15 0 50 75 95 LEFT 20 5 55 75 85 The puretone average (of 1000, 2000, 3000 & 4000 Hz) was 55 in each ear. Again, the findings do not include speech discrimination scores using the Maryland CNC word list. The April 2015 VA examination audiogram revealed the following puretone thresholds (in dB): HERTZ 500 1000 2000 3000 4000 RIGHT 20 10 55 85 100 LEFT 20 15 65 85 85 The puretone average (of 1000, 2000, 3000 & 4000 Hz) was 62.5 in each ear. Speech discrimination was 90 in the left ear and 88 in the right ear. The January 2020 VA examination audiogram revealed the following puretone thresholds (in dB): HERTZ 500 1000 2000 3000 4000 RIGHT 45 30 80 105+ 105+ LEFT 45 35 80 105+ 105 The puretone average (of 1000, 2000, 3000 & 4000 Hz) was 80 in the right ear and 81.25 in the left ear. Speech discrimination was 72 percent in the right ear, and 72 percent in the left ear. The March 2021 VA examination audiogram revealed the following puretone thresholds (in dB): HERTZ 500 1000 2000 3000 4000 RIGHT 25 10 65 105 105 LEFT 25 15 70 105 100 The puretone average (of 1000, 2000, 3000 & 4000 Hz) was 71.25 in the right ear and 72.5 in the left ear. Speech discrimination was 72 percent in the right ear, and 74 percent in the left ear. Turning to whether the criteria for a compensable rating are met for the period on appeal prior to January 8, 2020, the record contains the February 2014 and February 2015 private audiograms, and the April 2015 VA audiogram. The February 2014 and February 2015 audiograms do not contain speech discrimination testing, and are thus inadequate for rating purposes. Applying the results of the April 2015 VA examination to Table VI results in level III hearing loss in each ear. Under Table VII, those results warrant assignment of a 0 percent (noncompensable) rating. Notably, while the February 2014 and February 2015 audiograms do not contain the requisite speech discrimination results for rating purposes, those audiograms, when read together, reflect that the Veteran's hearing tested better at those examinations than at the April 2015 VA examination. Accordingly, it is reasonable to infer that the Veteran's hearing prior to April 2015, at the least, no worse than it was at the time of the April 2015 VA examination. Based on this evidence, there is no basis in the record upon which an initial, compensable rating may be assigned at any point during the appeal period prior to January 8, 2020. Next, concerning the period from January 8, 2020 (the date of the January 2020 VA examination) to March 10, 2021, the results of the January 2020 VA examination trigger an analysis under 38 C.F.R. § 4.86(b). As noted above, when the 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. 38 C.F.R. § 4.86(b). The numeral will then be elevated to the next higher Roman numeral. Id. Each ear will be evaluated separately. Here, the Veteran's right ear puretone threshold was 30 or less at 1000 Hz, and greater than 70 Hz at 2000 Hz. As so, his right ear hearing loss must be considered under Tables VI and VIa; whichever Table results in the higher numeral is the result used for rating purposes. Under Table VI, the Veteran's right ear hearing corresponds to level VI hearing loss. Under Table VIa, right ear hearing corresponds to level VII hearing loss. Taking the result from Table VIa, and then adding another numeral as required under § 4.86(b), this results in level VIII hearing loss in the right ear. The Veteran's left ear hearing loss does not trigger consideration under § 4.86(b). Rather, the results of the January 2020 VA examination correspond to level VI hearing loss in the left ear. Applying these results to Table VII, a 40 percent disability rating is warranted based on the results of the January 2020 VA examination. Lastly, concerning the period from March 10, 2021 (the date of the March 2021 VA examination), the results of that examination similarly trigger analysis under 38 C.F.R. § 4.86(b) for the left ear because the puretone threshold at 1000 Hz was less than 30, and the puretone threshold at 2000 Hz was at least 70. Under Table VI, left ear hearing loss corresponds to level VI hearing loss. Under Table VIa, left ear hearing loss also corresponds to level VI hearing loss. When adding a numeral as dictated by § 4.86(b), this results in level VII hearing loss in the left ear. The Veteran's right ear hearing loss, as tested at the March 2021 VA examination, does not trigger consideration under § 4.86(b). Rather, the right ear hearing results from the March 2021 VA examination correspond to level VI hearing loss. Under Table VII, the results of the March 2021 VA examination thus correspond to a 30 percent disability rating. Based on the foregoing, the record is silent as to any indication that a disability rating in excess of 40 percent is warranted at any time during the appeal period from January 8, 2020 onward. Simply put, there is no evidence that the Veteran's hearing was worse than as tested at the January 2020 VA examination. As the examiner conducted the appropriate tests, and the results are clearly dictated in the examination report, the report carries significant evidentiary value. Moreover, there is no evidence in the record to conflict with the January 2020 VA examination results. However, and as noted above, the Veteran was then assigned a lower disability rating from March 10, 2021 onward, based on the results of the March 2021 VA examination. However, the Veteran's disability rating must be formed with consideration for the entirety of the evidence. In this case, that includes the January 2020 VA examination report, which shows hearing that was worse than as indicated in the March 2021 VA examination report. However, hearing loss is not the type of disability that tends to improve with age, or with time. Rather, as the results of the February 2014 to March 2021 audiograms show, hearing loss tends to worsenand in the Veteran's case, it clearly did. Accordingly, with no evidence to suggest that the January 2020 VA examination results are inaccurate, or that the Veteran's hearing was not as bad at that time as is shown in the examination report, it is reasonable to infer that the Veteran's hearing did not improve by the time of the March 2021 VA examination. Rather, the March 2021 audiogram reflects similar levels of hearing loss, particularly given the usual margin for error in the testing. Moreover, as the findings from the January 2020 examination are very similar to the findings in March 2021, and the Veteran has denied any hearing improvement, there is no reason to find that a lower rating is warranted from March 2021 onward. Certainly with any type of hearing test, there is room for error, and the Board resolved all doubt in the Veteran's favor in this regard. Furthermore, there is no evidence in the record showing that the Veteran ever reported that his hearing had improved. With this in mind, and with resolution of all doubt in the Veteran's favor, the criteria for a 40 percent disability rating for bilateral hearing loss are more nearly approximated from March 10, 2021 onward. (Continued on the next page) In sum, for the service-connected bilateral hearing loss disability, (i) a compensable disability rating is denied for the period on appeal prior to January 8, 2020; (ii) a disability rating in excess of 40 percent, for the period on appeal from January 8, 2020 to March 10, 2021, is denied; and (iii) a disability rating of 40 percent, but no higher, is granted from March 10, 2021 onward. L. B. CRYAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. KAYS HUKILL 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.