Citation Nr: 21032764
Decision Date: 05/27/21	Archive Date: 05/27/21

DOCKET NO. 16-38 080
DATE: May 27, 2021

ORDER

A compensable disability rating for bilateral hearing loss prior to August 11, 2015, and in excess of 10 percent thereafter is denied. 

FINDINGS OF FACT

1. Prior to August 11, 2015, the Veteran's bilateral hearing loss manifested by hearing acuity of no worse than Level II in the right ear and Level IV in the left ear.

2. From August 11, 2015, the Veteran's bilateral hearing loss manifested by hearing acuity of no worse than Level V in the right ear and Level IV in the left ear.

CONCLUSIONS OF LAW

1. Prior to August 11, 2015, the criteria for a compensable rating for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100.

2. From August 11, 2015, the criteria for a rating in excess of 10 percent for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the United States Air Force from May 1972 until his honorable discharge in December 1978.

This case comes before the Board of Veterans' Appeals (Board) on appeal from a November 2013 rating decision by the Jackson, Mississippi, Regional Office of the United States Department of Veterans Affairs (VA).

In February 2019, the Board remanded the case to the VA Regional Office for further development. Specifically, the Board directed the VA Regional Office to obtain outstanding VA medical records and to obtain an updated VA audiologic examination addressing the Veteran's bilateral hearing loss, which the VA Regional Office accomplished. The case now returns to the Board. 

Evidentiary Standards

In deciding claims, it is the Board's responsibility to evaluate the entire record on appeal. VA is required to give due consideration to all pertinent medical and lay evidence when rating disabilities. 

When 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 C.F.R. § 4.3. To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996).

A claim for an increased rating is a new, distinct claim. See Suttman v. Brown, 5 Vet. App. 127, 136 (1993) (a claim for an increase is "based upon facts different from the prior claim"). The Board is to consider each disability in relation to the Veteran's medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999); 38 C.F.R. § 4.1. The Board must also determine if it is factually ascertainable that the disability worsened within one year preceding the filing of the claim. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2).

Separate ratings can be assigned for separate periods of time based on the facts founda practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999). A staged rating is a rating that looks backwards and retroactively assigns specific ratings to discrete periods. See Reizenstein v. Shinseki, 583 F.3d 1331, 1337 (Fed. Cir. 2009). This practice accounts "for the possible dynamic nature of a disability while the claim works its way through the adjudication process." O'Connell v. Nicholson, 21 Vet. App. 89, 93 (2007); see also 38 C.F.R. § 4.1. The effective date for a staged rating is when it is factually ascertainable that a particular rating is warranted. Hart v. Mansfield, 21 Vet. App. 505, 509 (2007). In cases where staged ratings are appropriate, it is necessary to consider all "the evidence of record from the time of the veteran's application." Fenderson, 12 Vet. App. at 127.

The law requires the Board address its reasons for rejecting evidence favorable to the Veteran. Timberlake v. Gober, 14 Vet. App. 122, 12829 (2000). The Board must review the entire record but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1381 (Fed. Cir. 2000). The analysis below focuses on the most salient and relevant evidence within the period on appeal and on what this evidence shows, or fails to show, on the claim.

Increased Ratings

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities found in 38 C.F.R. Part 4. The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 

Diagnostic codes (DC) are assigned to individual disabilities. Diagnostic codes provide rating criteria specific to a particular disability. If two diagnostic codes are applicable to the same disability, the diagnostic code that allows for the higher disability rating applies. 38 C.F.R. § 4.7. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. Id.

Rating Criteria  Hearing Loss

Disability ratings for hearing loss generally are derived from the mechanical process of applying the rating schedule found in 38 C.F.R. § 4.85 to the specific numeric scores obtained by audiology testing. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992); see also 38 C.F.R. § 4.86. Ordinarily, the average scores for puretone thresholds are compared with speech recognition scores to establish a numeric rating from I to XI for each ear, as outlined in Table VI in section 4.85. See 38 C.F.R. § 4.85(b), (h) (Table VI: "Numeric Designation of Hearing Impairment Based on Puretone Threshold Average and Speech Discrimination"). If, however, the examiner certifies that the use of speech recognition scores would not be appropriate, numeric ratings are assigned based solely on average puretone thresholds, as outlined in Table VIA. See 38 C.F.R. § 4.85(c), (h) (Table VIA: "Numeric Designation of Hearing Impairment Based Only on Puretone Threshold Average"). 

In addition, when a claimant has an exceptional pattern of hearing impairment, such as puretone thresholds of 55 decibels or more at each of the specified frequencies (1000, 2000, 3000, and 4000 hertz), or when the puretone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz, the rating specialist must calculate the appropriate numeric ratings under tables VI and VIA and use the higher rating. 38 C.F.R. § 4.86. 

In each of the situations described above, the numeric scores for the "better" and "poorer" ear are then entered into a chart to establish a disability rating between 0 percent and 100 percent. 38 C.F.R. § 4.85(e), (h), Diagnostic Code 6100 (Table VII: "Percentage Evaluation for Hearing Impairment").

Analysis

Prior to August 11, 2015

The Veteran filed his claim for an increased disability rating for service-connected bilateral hearing loss on November 28, 2012. Thus, the Board will consider relevant evidence one year preceding the filing of the Veteran's claim. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). 

In November 2011, the Veteran appeared for a VA audiology evaluation through his local VA Medical Center. His puretone thresholds, in decibels, were:

	HERTZ*

	A	B	C	D	E	F	G	

	500*	1000*	2000*	3000*	4000*	6000*	8000*	Average (B  E)

RIGHT	25	50	60	65	65	70	65	60

LEFT	30	55	60	60	60	60	55	58.75

The Veteran's speech discrimination scores (Maryland CNC word list) were:

Right Ear	100 %

Left Ear	92 %

Applying the results to Table VI, the findings yield a numeric designation of Level II in the right ear and Level II in the left ear. Entering the resulting bilateral numeric designation of Level II for the right ear and Level II for the left ear into 38 C.F.R. § 4.85, Table VII, equates to a noncompensable disability rating under Diagnostic Code 6100.  

An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86(a) was shown in the Veteran's left ear. Applying the results to Table VIA yields Level IV in the left ear. Here, Table VIA yields the highest rating for the left ear. Entering the resulting numeric designation of Level IV for the left ear and Level II for the right ear into 38 C.F.R. § 4.85, Table VII, equates to a noncompensable disability rating under Diagnostic Code 6100. Thus, the ultimate results, from Table VII remain the same under either formula. 

In October 2013, the Veteran appeared for a VA examination. His puretone thresholds, in decibels, were:

	HERTZ*

	A	B	C	D	E	F	G	

	500*	1000*	2000*	3000*	4000*	6000*	8000*	Average (B  E)

RIGHT	30	50	65	70	65	75	75	63

LEFT	35	55	60	65	60	65	70	60

The Veteran's speech discrimination scores (Maryland CNC word list) were:

Right Ear	94 %

Left Ear	98 %

Applying the results to Table VI, the findings yield a numeric designation of Level II in the right ear and Level II in the left ear.  Entering the resulting bilateral numeric designation of Level II for the right ear and Level II for the left ear into 38 C.F.R. § 4.85, Table VII, equates to a noncompensable disability rating under Diagnostic Code 6100.  

An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86(a) was shown in the Veteran's left ear. Applying the results to Table VIA yields Level IV in the left ear. Here, Table VIA yields the highest rating for the left ear. Entering the resulting numeric designation of Level IV for the left ear and Level II for the right ear into 38 C.F.R. § 4.85, Table VII, equates to a noncompensable disability rating under Diagnostic Code 6100. Thus, the ultimate results from Table VII remain the same under either formula.

For this appeal period, the Board has considered the Veteran's lay statements regarding his belief that his bilateral hearing loss should warrant a compensable disability rating. Unfortunately, the ratings for hearing loss disabilities involve a mechanical application of the rating schedule to the numeric designations assigned based on the audiometric test results. Lendenmann, 3 Vet. App. at 345. Determining the severity of hearing loss involves using specialized equipment and interpreting audiological test results. Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). As the Veteran has not shown that he possesses the training or experience needed to assess the severity of his hearing loss under VA's standards, his assertions have no probative value.

To the extent the Veteran takes issue with the rating criteria themselves, the rating criteria specifically provide for ratings based on all levels of hearing loss, including exceptional hearing patterns, see 38 C.F.R. § 4.86, as measured by both audiometric testing and speech recognition testing. See Doucette v. Shulkin, 28 Vet. App. 366, 369 (2017) (holding "that the rating criteria for hearing loss contemplate the functional effects of decreased hearing and difficulty understanding speech in an everyday work environment"). The Board is bound by the rating criteria. The Veteran has not described any exceptional or unusual hearing loss symptoms that would require the application of any other rating criteria during this appeal period.

Accordingly, the Board finds that the preponderance of the evidence is against the claim for a compensable rating for the Veteran's bilateral hearing loss prior to August 11, 2015.

From August 11, 2015

On August 11, 2015, the Veteran appeared for an audiologic examination at his local VA Medical Center. His puretone thresholds, in decibels, were:

	HERTZ*

	A	B	C	D	E	F	G	

	500*	1000*	2000*	3000*	4000*	6000*	8000*	Average (B  E)

RIGHT	30	55	60	65	65	80	75	61.25

LEFT	35	55	60	65	65	65	70	61.25

The Veteran's speech discrimination scores (Maryland CNC word list) were:

Right Ear	96 %

Left Ear	84 %

Applying the results to Table VI, the findings yield a numeric designation of Level II in the right ear and Level III in the left ear. Entering the resulting bilateral numeric designation of Level II for the right ear and Level III for the left ear into 38 C.F.R. § 4.85, Table VII, equates to a noncompensable disability rating under Diagnostic Code 6100.  

An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86(a) was shown in both of the Veteran's ears. Applying the results to Table VIA yields Level IV in the right ear and the left ear. Here, Table VIA yields the highest rating for each ear. Entering the resulting numeric designation of Level IV for each ear into 38 C.F.R. § 4.85, Table VII, equates to 10 percent disability rating under Diagnostic Code 6100.

The Board observes that the Veteran received a private audiologic examination in June 2018. That examination, however, used the Northwestern University Auditory Test No. 6 (NU-6) for speech discrimination, not the Maryland CNC Word List. According to 38 C.F.R. § 4.85(a), "An examination for hearing impairment for VA purposes . . . must include a controlled speech discrimination test (Maryland CNC) and a puretone audiometry test." (Emphasis added). Use of the NU-6 test for speech discrimination renders the June 2018 private audiologic examination inadequate for VA rating purposes. See Swain v. McDonald, 27 Vet. App. 219, 222 (2015).

In December 2020, the Veteran appeared for a VA-contracted audiologic examination. His puretone thresholds, in decibels, were:

	HERTZ*

	A	B	C	D	E	F	G	

	500*	1000*	2000*	3000*	4000*	6000*	8000*	Average (B  E)

RIGHT	40	60	65	70	75	75	90	67.5

LEFT	40	60	60	65	60	80	75	61.25

The Veteran's speech discrimination scores (Maryland CNC word list) were:

Right Ear	94 %

Left Ear	88 %

Applying the results to Table VI, the findings yield a numeric designation of Level II in the right ear and Level III in the left ear.  Entering the resulting bilateral numeric designation of Level II for the right ear and Level III for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a noncompensable disability rating under Diagnostic Code 6100.  

An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86(a) was shown in both of the Veteran's ears. Applying the results to Table VIA yields Level V in the right ear and Level IV the left ear. Here, Table VIA yields the highest rating for each ear. Entering the resulting numeric designations for each ear into 38 C.F.R. § 4.85, Table VII, equates to 10 percent disability rating under Diagnostic Code 6100.

For this appeal period, the Board has also considered the Veteran's lay statements regarding his belief that his bilateral hearing loss should warrant a higher disability rating. Again, the Veteran has not shown that he possesses the training or experience needed to assess the severity of his hearing loss under VA's standards, his assertions have no probative value. Nor has the Veteran described any exceptional or unusual hearing loss symptoms that would require the application of any other rating criteria during this appeal period.

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Accordingly, the Board finds that the preponderance of the evidence is against the claim for a disability rating in excess of 10 percent for the Veteran's bilateral hearing loss from August 11, 2015.

 

 

M. Tenner

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	J. F. Sawka, 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.