Citation Nr: 21031266 Decision Date: 05/21/21 Archive Date: 05/21/21 DOCKET NO. 17-00 975 DATE: May 21, 2021 ORDER Entitlement to a rating higher than 10 percent prior to January 4, 2021, and a rating higher than 30 percent since January 4, 2012, for bilateral hearing loss is denied. FINDINGS OF FACT 1. Prior to January 4, 2021, the most probative evidence indicates the Veteran's bilateral hearing loss disability was manifested by loss of hearing acuity measured at no worse than Level III hearing, bilaterally. 2. Since January 4, 2021, the most probative evidence indicates the Veteran's bilateral hearing loss disability has been manifested by loss of hearing acuity measured at no worse than Level VI hearing in the right ear and Level VII hearing in the left ear. CONCLUSIONS OF LAW 1. Prior to January 4, 2021, the criteria for a rating higher than 10 percent for bilateral hearing loss have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.86, Diagnostic Code (DC) 6100. 2. Since January 4, 2021, the criteria for a rating higher than 30 percent for bilateral hearing loss have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.86, DC 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from March 1967 to February 1971. This matter is on appeal from a July 2016 rating decision which decreased the rating from 10 percent to zero percent for bilateral hearing loss, effective July 13, 2016. In June 2019, the Veteran testified at a Travel Board hearing with the undersigned Veterans Law Judge. A transcript of the hearing is of record. In a September 2018 Decision Review Officer (DRO) decision, the RO restored the 10 percent rating for the Veteran's bilateral hearing loss, effective December 18, 2007. In October 2019, the Board remanded this matter for further development. It is now ready for adjudication. The Board recognizes that the title page of the October 2019 remand identified the issue on appeal as entitlement to a compensable rating for bilateral hearing loss rather than entitlement to a rating higher than 10 percent for bilateral hearing loss. The Board apologizes for its error and for any confusion which this error may have caused the Veteran. In a January 2021 DRO decision the RO increased the rating for the Veteran's bilateral hearing loss from 10 percent to 30 percent, effective January 4, 2021. The Board has correctly listed the issue on appeal as stated above. Increased Rating Claim Disability ratings are determined by the application of the VA's Schedule for Rating Disabilities. Separate diagnostic codes identify the various disabilities, which are based, as far as practically can be determined, on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Board will also consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Where there is a question as to which of two ratings shall be applied, 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. Reasonable doubt regarding the degree of disability will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21. At the time of an initial rating, separate ratings can be assigned for separate periods of time based on facts found, a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999). The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14. The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). The Veteran contends that his service-connected bilateral hearing loss is more severe than his 10 percent rating prior to January 4, 2021, and 30 percent rating since January 4, 2021, would indicate. Disability ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are made. Bruce v. West, 11 Vet. App. 405 (1998); Lendenmann v. Principi, 3 Vet. App. 345 (1992). The regulations set forth eleven auditory acuity levels, designated from Roman numerals I to XI, in escalating order of hearing impairment. 38 C.F.R. § 4.85. The appropriate auditory acuity level is determined based on a combination of the percentage of speech discrimination and the puretone threshold average. Additional considerations apply when exceptional patterns of hearing loss are demonstrated, which are defined as either a) puretone averages of 55 or greater at 1000, 2000, 3000, and 4000 Hertz, or; b) a puretone threshold of 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz. 38 C.F.R. § 4.86 (a). Once an acuity level is established for each ear, Table VII, Percentage Evaluations for Hearing Impairment, is used to determine the appropriate disability evaluation. The appropriate rating is determined based on a combination of the levels of hearing impairment established for each ear. Hearing loss disabilities are rated by application of a mechanical process that is explained here. Initially, VA must determine the Roman numerical designation for the degree of hearing impairment in each ear based upon a combination of the percent of speech discrimination and the puretone threshold average. 38 C.F.R. § 4.85. In general, the Roman numerical designation is determined through application of 38 C.F.R. § 4.85 (h), Table VI. Under Table VI, the horizontal rows represent eight separate ranges of puretone threshold averages, as demonstrated through audiometric testing for the frequencies at 1000, 2000, 3000, and 4000 Hertz. The average puretone threshold is calculated by determining the sum of the puretone thresholds demonstrated at the four aforementioned frequencies and dividing that sum by four. The vertical columns under Table VI represent nine separate ranges of speech discrimination percentage, as determined through Maryland CNC testing. The Roman numerical designation of impaired efficiency is determined for each ear by intersecting the horizontal row appropriate for the calculated puretone threshold average and the vertical column appropriate for the demonstrated percentage of speech discrimination. 38 C.F.R. § 4.85 (b). Table VIA, which assigns a Roman numeral designation based solely on the puretone threshold average, 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. 38 C.F.R. § 4.85 (c). In addition, where audiometric testing reveals an exceptional pattern of hearing impairment, Roman numerical designations may be determined under 38 C.F.R. § 4.85 (h), Table VIA. Pursuant to 38 C.F.R. § 4.86, an exceptional pattern of hearing impairment exists where audiometric testing reveals either: (1) puretone thresholds of 55 decibels or more at each of the frequencies at 1000, 2000, 3000, and 4000 Hertz; or (2) a puretone threshold at 30 decibels or less at 1000 Hertz and 70 decibels or greater at 2000 Hertz. 38 C.F.R. §§ 4.85 (h); 4.86. After the Roman numerical designation has been determined for each ear, VA then determines the appropriate disability rating through application of 38 C.F.R. § 4.85 (h), Table VII. Table VII is applied by intersecting the appropriate horizontal row (which represents the Roman numerical designation for the poorer ear) with the appropriate vertical column (which represents the Roman numerical designation for the better ear). 38 C.F.R. § 4.85 (e). In Martinak v. Nicholson, 21 Vet. App. 447 (2007), the Court held that in addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in his or her final report. Martinak, 21 Vet. App. at 455. The Court also noted, however, that even if an audiologist's description of the functional effects of the veteran's hearing disability was somehow defective, the veteran bears the burden of demonstrating any prejudice caused by a deficiency in the examination. Id. Turning to the evidence, on November 2014 VA hearing loss and tinnitus Disability Benefits Questionnaire (DBQ) examination, puretone thresholds for the right ear, in decibels, at 1000, 2000, 3000, and 4000 Hz were as follows: 50, 55, 70, and 75 decibels; the average puretone decibel loss was 63 decibels. The puretone thresholds for the left ear, in decibels, at 1000, 2000, 3000, and 4000 Hz as follows: 50, 50, 70, and 80 decibels; the average puretone decibel loss was 63 decibels. The CNC word list speech recognition score was 84%, bilaterally. The audiologist diagnosed bilateral sensorineural hearing loss which she opined impacted the ordinary conditions of daily life. Under Table VI, these audiometric findings correspond to Level III hearing, bilaterally. Those Roman numerical designations equate to a noncompensable disability rating under Table VII. Regarding the functional impact of the bilateral hearing loss disability, the Veteran reported that he was unable to hear well. VA treatment records include a May 2016 report which shows that the Veteran had fair hearing with hearing aids. On July 2016 VA hearing loss and tinnitus DBQ examination, puretone thresholds for the right ear, in decibels, at 1000, 2000, 3000, and 4000 Hz were as follows: 45, 55, 70, and 75 decibels; the average puretone decibel loss was 61 decibels. The puretone thresholds for the left ear, in decibels, at 1000, 2000, 3000, and 4000 Hz as follows: 45, 75, 75, and 80 decibels; the average puretone decibel loss was 69 decibels. The CNC word list speech recognition score was 92%, bilaterally. The audiologist diagnosed bilateral sensorineural hearing loss which she opined impacted the ordinary conditions of daily life. Under Table VI, these audiometric findings correspond to Level II hearing, bilaterally. Those Roman numerical designations equate to a noncompensable disability rating under Table VII. Regarding the functional impact of the bilateral hearing loss disability, the Veteran stated that he had to ask other to repeat themselves and could not hear danger warnings. VA treatment records include a July 2016 report which indicates a diagnosis of mild to severe sloping sensorineural hearing loss. In a July 2017 notice of disagreement, the Veteran submitted private audiological evaluations dated in June 2016 and September 2016 in support of restoration of a 10 percent rating for bilateral hearing loss. However, it does not appear that these examinations utilized a Maryland CNC Word List, as required. 38 C.F.R. § 4.85(a). Accordingly, these evaluations are inadequate for rating purposes. VA treatment records include a July 2018 audiology note and audiometric results which indicate bilateral moderate to severe mixed hearing loss with poor speech discrimination ability in the right ear and fair speech discrimination ability in the left ear. There was a slight decrease in hearing sensitivity compared to a 2014 audiogram. New hearing aids were recommended. In a September 2018 DRO decision the RO restored the 10 percent rating for bilateral hearing loss from zero percent to 10 percent effective December 18, 2007, based, in pertinent part, on a July 2016 VA examination conducted under new testing guidelines. In June 2019, the Veteran testified that his hearing seemed to be worsening and stated that he was prescribed hearing aids. On January 2021 VA hearing loss and tinnitus DBQ examination, puretone thresholds for the right ear, in decibels, at 1000, 2000, 3000, and 4000 Hz were as follows: 60, 70, 75, and 90 decibels; the average puretone decibel loss was 74 decibels. The puretone thresholds for the left ear, in decibels, at 1000, 2000, 3000, and 4000 Hz as follows: 60, 80, 85, and 90 decibels; the average puretone decibel loss was 79 decibels. The CNC word list speech recognition score was 82% in the right ear and 80% in the left ear. The audiologist diagnosed bilateral sensorineural hearing loss which she opined impacted the ordinary conditions of daily life. Under Table VIA, these audiometric findings correspond to Level VI hearing in the right ear and Level VII hearing in the left ear. Those Roman numerical designations equate to a 30 percent disability rating under Table VII. Regarding the functional impact of the bilateral hearing loss disability, the Veteran stated that he was unable to understand a clear conversation, people had to speak louder to him, the television volume was louder than usual, and he was unable to make out clear conversations in noisy environment. The Veteran also misinterpreted words. Applying the relevant rating criteria, the Board notes that a rating higher than 10 percent prior to January 4, 2021, and a rating higher than 30 percent since January 4, 2021, for the Veteran's bilateral hearing loss is not warranted. The Board is mindful that an audiologist must provide a description of the functional effects caused by a hearing loss disability. Martinak v. Nicholson, 21 Vet. App. 447 (2007). On November 2014, July 2016 and January 2021 VA examination, the Veteran complained of difficulty understanding others, an inability to understand clearly, and the need to listen to the television with increased volume.. The Board finds these comments are sufficient to comply with the applicable VA policies. Id. The Board notes that the Veteran is competent to report complaints such as difficulty hearing as this observation comes to him through his senses. Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Board also acknowledges the Veteran's belief that his symptoms are of such severity as to warrant higher ratings and has taken these contentions seriously. However, the Veteran is not competent to identify a specific level of disability of his bilateral hearing loss according to the appropriate diagnostic code. On the other hand, such competent evidence concerning the nature and extent of the Veteran's bilateral hearing loss has been provided by the examining VA audiologists who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports) directly addresses the criteria under which this disability is evaluated. Finally, neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (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). KELLI A. KORDICH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Adams, 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.