Citation Nr: 21031268 Decision Date: 05/21/21 Archive Date: 05/21/21 DOCKET NO. 15-01 640 DATE: May 21, 2021 ORDER A disability rating for bilateral hearing loss, in excess of 0 percent for the period from February 3, 2017 to January 12, 2019, and in excess of 30 percent from January 12, 2019, is denied. FINDINGS OF FACT 1. For the rating period on appeal from February 3, 2017 to January 12, 2019, the hearing loss has been manifested by average decibel loss of 46 in the left ear, average decibel loss of 45 in the right ear, and Maryland CNC speech discrimination scores of 94 percent in both ears. 2. For the rating period on appeal from January 12, 2019, the hearing loss has been manifested by average decibel loss of 70 in the left ear, average decibel loss of 71 in the right ear, and Maryland CNC speech discrimination scores of 82 percent in the left ear and 74 percent in the right ear. CONCLUSIONS OF LAW 1. For the rating period on appeal from February 3, 2017 to January 12, 2019, the criteria for a disability rating in excess of 0 percent for the bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.655(b), 4.1, 4.2, 4.3, 4.7, 4.85, 4.86. 2. For the rating period on appeal from January 12, 2019, the criteria for a disability rating in excess of 30 percent for the bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.85, 4.86. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Navy during the Vietnam Era from April 1966 to January 1970. The Veteran initially claimed service connection for hearing loss in June 2010. In June 2018, the Board denied an initial rating in excess of 0 percent for the period prior to February 3, 2017, and bifurcated the rating issue, remanding the rating for the period from February 3, 2017 for a new examination. The 0 percent rating was continued in the January 2019 Supplemental Statement of the Case, due to the Veteran missing the new examination. The Board remanded the issue in June 2020, after the Veteran rescheduled for another examination, which had not been considered by the Agency of Original Jurisdiction (AOJ). In July 2020 Supplemental Statement of the Case (and corresponding July 10, 2020 Rating Decision) continued the 0 percent rating for the period from February 3, 2017 to January 12, 2019, and granted a 30 percent rating for the period from January 12, 2019. Disability ratings for hearing loss are prescribed by a series of tables in 38 C.F.R. § 4.85. Generally, the Maryland CNC speech discrimination score and the average decibel loss of an ear are applied to Table VI to create a correlated numeric designation. The numeric designation of each ear is then applied to Table VII, yielding a disability rating for the hearing loss. 38 C.F.R. § 4.86 alters this procedure when either (1) the puretone threshold at each of four frequencies (1000, 2000, 3000 and 4000 Hz) is 55 decibels or more, or (2) the puretone threshold is 30 decibels or less at the 100 Hz frequency and 70 decibels or more at the 2000 Hz frequency. If § 4.86 applies, Table VI or Table VIa in § 4.85 is used to determine the numeric designation, whichever table results in the higher designation. When the puretone threshold is 30 decibels or less at the 100 Hz frequency and 70 decibels or more at the 2000 Hz frequency, the resulting numeric designation is then elevated to the next higher designation. 38 C.F.R. § 4.86(b). Higher Rating the Bilateral Hearing Loss from February 3, 2017 is Denied. From February 3, 2017 to January 12, 2019 Where there is a claim for disability compensation or pension but medical evidence accompanying the claim is not adequate for rating purposes, a VA examination will be authorized. 38 C.F.R. § 3.326(a). Claimants for whom an examination has been scheduled are required to report for the examination. Id. When a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. 38 C.F.R. § 3.655(b). In the June 2018 Board decision, the Board remanded the issue of rating for the period from February 3, 2017 for a new VA examination. The Veteran was scheduled for a new examination on January 5, 2019; however, the Veteran did not appear for the new examination, and did not provide good cause for failure to appear. Consequently, the Board must rate the claim based on the evidence of record for the period from February 3, 2017 until a subsequent examination. The most recent audiological examination in the record for this period on appeal is the March 2012 VA examination. The examination showed that the Veteran had puretone threshold results of 35, 40, 50, and 55 decibels in the frequencies of 1000, 2000, 3000, and 4000 Hz in the right ear, and results of 30, 40, 55, and 60 decibels in the same frequencies in the left ear. The Maryland CNC speech discrimination scores were 94 percent in each ear. According to these scores, 38 C.F.R. § 4.86 does not apply. The resulting average threshold scores are 45 decibels in the right ear and 46 decibels in the left ear. Applying these averages and the speech discrimination scores to Table VI yield numeric designations of I in each ear. Applying these designations to Table VII yield a disability rating of 0 percent. Accordingly, after a review of all the evidence of record, the Board finds that, for the rating period on appeal from February 3, 2017 to January 12, 2019, the hearing loss has been manifested by average decibel loss of 46 in the left ear, average decibel loss of 45 in the right ear, and Maryland CNC speech discrimination scores of 94 percent in both ears. The Board finds that, for the entire rating period on appeal from February 3, 2017 to January 12, 2019, the criteria for an increased disability rating in excess of 0 percent for bilateral hearing loss are not met. 38 C.F.R. §§ 4.3, 4.7, 4.85, 4.86. Rating from January 12, 2019 The effective date of an award of increased compensation shall be the earliest date as of which it is ascertainable that an increase in disability had occurred. 38 U.S.C. § 5110(b)(3). After missing the January 5, 2019 VA examination described above, the Veteran rescheduled the examination for January 12, 2019. In the January 12, 2019 examination, the examination yielded the following results: the puretone threshold results in the left ear were 65, 65, 75, and 75 decibels in the frequencies of 1000, 2000, 3000 and 4000 Hz; the results were 70, 70, 70, and 75 decibels in the same frequencies in the left ear; and the Maryland CNC speech discrimination scores were 82 percent in the left ear and 74 percent in the right ear. Examining the results, the exceptional hearing pattern provision of 38 C.F.R. § 4.86(a) applies. The puretone threshold averages are 70 decibels in the left ear and 71 decibels in the right ear. Applying these results to Table VI yield numeric designations of IV in the left ear and VI in the right ear. Applying the same results to Table VIa yield numeric designations of VI in both ears. Under 38 C.F.R. § 4.86(a), the higher numeric designations will be applied to Table VII. Applying numeric designations of VI for both ears to Table VII yield a disability rating of 30 percent. Accordingly, after a review of all the evidence of record, the Board finds that, for the entire rating period on appeal from January 12, 2019, the hearing loss has been manifested by average decibel loss of 70 in the left ear, average decibel loss of 71 in the right ear, and Maryland CNC speech discrimination scores of 82 percent in the left ear and 74 percent in the right ear. The Board finds that, for the entire rating period on appeal from January 12, 2019, the criteria for an increased disability rating in excess of 30 percent for bilateral hearing loss are not met. 38 C.F.R. §§ 4.3, 4.7, 4.85, 4.86. J. PARKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Charles Plambeck 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.