Citation Nr: 21039866 Decision Date: 07/01/21 Archive Date: 07/01/21 DOCKET NO. 17-55 958A DATE: July 1, 2021 ORDER Entitlement to a compensable evaluation prior to March 27, 2019, an evaluation in excess of 10 percent from March 27, 2019 to August 27, 2020, and an evaluation in excess of 20 percent thereafter, for bilateral hearing loss is denied. FINDINGS OF FACT 1. Prior to March 27, 2019, the Veteran's bilateral hearing loss manifested by hearing acuity of no worse than Level VI in the right ear and no worse than Level I in the left ear. 2. From March 27, 2019 to August 27, 2020, the Veteran's bilateral hearing loss manifested by hearing acuity of no worse than Level VI in the right ear and no worse than Level II in the left ear. 3. Since August 27, 2020, the Veteran's bilateral hearing has been manifested by hearing acuity of no worse than Level VIII in the right ear and no worse than Level III in the left ear. CONCLUSIONS OF LAW 1. Prior to March 27, 2019, the criteria for a compensable evaluation for bilateral hearing loss was not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.7, 4.85, 4.86, Diagnostic Code 6100. 2. From March 27, 2019 to August 27, 2020, the criteria for an evaluation in excess of 10 percent for bilateral hearing loss was not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.7, 4.85, 4.86, Diagnostic Code 6100. 3. Since August 27, 2020, the criteria for an evaluation in excess of 20 percent for bilateral hearing loss has not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.7, 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service in the United States Marine Corps from September 1980 to March 1982. The issue of entitlement to a compensable rating for bilateral hearing loss was remanded by the Board of Veterans' Appeals (Board) in June 2019 and March 2021. In a September 2020 rating decision, the Agency of Original Jurisdiction (AOJ) increased the evaluation for bilateral hearing loss to 20 percent effective August 27, 2020. In an April 2021 rating decision, the AOJ increased the evaluation for bilateral hearing loss to 10 percent effective March 27, 2019 and continued the 20 percent evaluation from August 27, 2020. Entitlement to a compensable evaluation prior to March 27, 2019, an evaluation in excess of 10 percent from March 27, 2019 to August 27, 2020, and an evaluation in excess of 20 percent thereafter, for bilateral hearing loss Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. 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. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is reviewed when making disability evaluations. See generally, 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Evidence to be considered in the appeal of an initial assignment of a disability rating was not limited to that reflecting the then current severity of the disorder. Fenderson v. West, 12 Vet. App. 119 (1999). In Fenderson, the Court also discussed the concept of the "staging" of ratings, finding that in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. Fenderson at 126-28; see also Hart v. Mansfield, 21 Vet. App. 505 (2007) (applying the concept of staged ratings to instances in which entitlement to compensation has previously been established). The Veteran's service-connected bilateral hearing loss has been evaluated with an initial noncompensable rating, a 10 percent evaluation from March 27, 2019 to August 27, 2020, and a 20 percent evaluation beginning on August 27, 2020 under the provisions of Diagnostic Code 6100. See 38 C.F.R. § 4.85. In rating hearing loss, the rating schedule requires a mechanical application of the Rating Schedule, using numeric designations based upon the results of controlled speech discrimination tests (Maryland CNC), together with the average hearing threshold level as measured by puretone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 Hertz. See 38 C.F.R. § 4.85; see also Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). By applying the tables in the Rating Schedule to a veteran's test results, a Roman numeral designation is assigned, ranging from Level I for essentially normal acuity to Level XI for profound deafness. See 38 C.F.R. § 4.85, Diagnostic Code 6100, Table VI and Table VIA. These Roman numeral designations are then used to determine the percentage evaluation for hearing impairment by applying Table VII. See 38 C.F.R. § 4.85, Diagnostic Code 6100, Table VII. The current rating criteria include alternate methods of rating exceptional patterns of hearing loss, as defined in 38 C.F.R. § 4.86. An exceptional pattern of hearing impairment occurs when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more. In that situation, 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). Further, when the average 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. That numeral will then be elevated to the next higher Roman numeral. 38 C.F.R. § 4.86(b). Each ear is considered separately. 38 C.F.R. § 4.86. Turning to the record, the Veteran was afforded a VA examination in November 2015 to determine the severity of his bilateral hearing loss. During this examination, speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 96 percent in the left ear. The average decibel loss in the both ears was 105. The examiner indicated that these test results were not valid for rating purposes. She explained that responses were very erratic and inconsistent despite reinstruction, and noted a positive Stenger test at 500, 3000, and 4000 Hertz (Hz), but absent at 250, 1000, and 2000 Hz. She also noted that word recognition ability was excellent bilaterally, which was inconsistent with pure tones. The examiner noted normal hearing loss bilaterally. She stated that the results of the examination were of poor reliability as the Veteran appeared to be falling asleep and had to be prompted to respond, and thus, should not be used for rating purposes. However, she stated that it does appear that a mixed hearing loss may be present. She noted that otoscopic inspection was unremarkable bilaterally and tympanograms were consistent with abnormal middle ear function in the right ear (flat) and normal middle ear function in the left ear. Based on this evaluation, the AOJ denied service connection for bilateral hearing loss in a March 2016 rating decision due to no current hearing loss disability. The Veteran appealed this rating to the Board and was afforded a new VA examination in October 2017. At that time, pure tone thresholds, in decibels, were as follows: Frequency 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz Right 75 70 65 70 75 Left 35 30 30 30 35 Speech audiometry revealed speech recognition ability of 76 percent in the right ear and of 94 in the left ear. The average decibel loss in the right ear was 70 and the average decibel loss in the left ear was 31. The right ear demonstrated an exceptional hearing pattern, and Table VIa results in the highest numeric designation of VI for the right ear. Entering the average pure tone thresholds and speech recognition abilities above into Table VI revealed the highest numeric designation of hearing impairment was I for the left ear. See 38 C.F.R. § 4.86(a). Entering the category designations for each ear into Table VII results in a noncompensable evaluation under Diagnostic Code 6100. Based on this evaluation, the AOJ granted service connection for bilateral hearing loss with a noncompensable evaluation effective December 18, 2014 in an October 2017 rating decision. The Veteran filed a Notice of Disagreement (NOD) with the noncompensable evaluation, and in June 2019, the Board remanded the issue of an increased evaluation for further development. The Veteran was afforded a new VA examination in August 2020. At that time, pure tone thresholds, in decibels, were as follows: Frequency 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz Right N/A 70 65 65 80 Left N/A 40 35 40 45 Speech audiometry revealed speech recognition ability of 56 percent in the right ear and of 76 in the left ear. The average decibel loss in the right ear was 70 and the average decibel loss in the left ear was 40. The right ear demonstrated an exceptional hearing pattern, and Table VI results in the highest numeric designation of VIII for the right ear. Entering the average pure tone thresholds and speech recognition abilities above into Table VI reveals the highest numeric designation of hearing impairment was III for the left ear. See 38 C.F.R. § 4.86(a). Entering the category designations for each ear into Table VII results in a 20 percent evaluation under Diagnostic Code 6100. Based on this evaluation, the AOJ increased the evaluation of bilateral hearing loss to 20 percent effective August 27, 2020. The Veteran appealed to the Board and in March 2021, the Board remanded the issue for further development, including obtaining outstanding March 2018 and March 2019 audiograms. Pursuant to the Board remand, updated VA treatment records were obtained, to include the audiograms associated with the March 2018 and March 2019 consultations. The March 27, 2018 VA audiology progress note indicated findings of pure tone thresholds, in decibels, as follows: Frequency 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz Right N/A 60 40 40 55 Left N/A 15 15 15 30 Speech audiometry revealed speech recognition ability of 92 percent in the right ear and of 96 in the left ear. The average decibel loss in the right ear was 49 and the average decibel loss in the left ear was 19. Entering the average pure tone thresholds and speech recognition abilities above into Table VI reveals the highest numeric designation of hearing impairment was I for the right ear and I for the left ear. See 38 C.F.R. § 4.86(a). Entering the category designations for each ear into Table VII results in a noncompensable evaluation under Diagnostic Code 6100. The March 27, 2019 VA audiology progress note indicated findings of pure tone thresholds, in decibels, as follows: Frequency 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz Right N/A 70 65 75 80 Left N/A 40 50 55 65 Speech audiometry revealed speech recognition ability of 80 percent in the right ear and of 88 in the left ear. The average decibel loss in the right ear was 73 and the average decibel loss in the left ear was 53. The right ear demonstrated an exceptional hearing pattern, and Table VIa results in the highest numeric designation of VI for the right ear. Entering the average pure tone thresholds and speech recognition abilities above into Table VI reveals the highest numeric designation of hearing impairment was II for the left ear. See 38 C.F.R. § 4.86(a). Entering the category designations for each ear into Table VII results in a 10 percent evaluation under Diagnostic Code 6100. Based on the addition of this medical evidence to the record, the AOJ issued an April 2021 rating decision and Supplemental Statement of the Case (SSOC) granting a 10 percent evaluation effective March 27, 2019 and continuing the 20 percent evaluation of 20 percent from August 27, 2020. The Board acknowledges the Veteran's contentions that his service-connected bilateral hearing loss warrants higher evaluations. However, in determining the actual degree of disability, an objective examination is more probative of the degree of the Veteran's impairment. Furthermore, the opinions and observations of the Veteran alone cannot meet the burden imposed by the rating criteria under 38 C.F.R. § 4.85 with respect to determining the severity of his service-connected hearing loss. See Moray v. Brown, 2 Vet. App. 211, 214 (1993); see also Davidson v. Shinseki, 581 F.3d 1313 (2009). The Veteran is competent to report difficulty with his hearing; however, disability ratings for hearing loss are derived from a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). The Board finds the October 2017 and August 2020 VA examinations as well as the March 2018 and March 2019 VA treatment records to be highly probative. The VA examiners certified that the test results were valid for rating purposes and the use of speech discrimination score was appropriate. The valid audiological examinations of record were conducted in accordance with the requirements for a hearing impairment examination for VA purposes. See 38 C.F.R. § 4.85(a). The results were also consistent with the Veteran's description of his worsening hearing loss during the applicable periods. Therefore, the Board finds that the Veteran's bilateral hearing loss is most accurately depicted by a noncompensable evaluation prior to March 27, 2019, a 10 percent evaluation from March 27, 2019 to August 27, 2020, and a 20 percent evaluation thereafter. There is no other audiological evidence of record to support higher evaluations during any time period on appeal. Likewise, the Board finds that March 27, 2019 is the is the earliest date as of which it is factually ascertainable that a compensable evaluation is warranted. There is no evidence of record to support a compensable rating for the Veteran's service-connected bilateral hearing loss prior to that date. The Board acknowledges that the Veteran underwent a November 2015 VA examination that yielded results suggesting potential hearing loss, although the examiner indicated normal hearing acuity bilaterally. However, the examiner determined that those results were not valid for rating purposes. Therefore, those results are not considered in the evaluation of the Veteran's bilateral hearing loss. There are no other treatment records indicating hearing loss warranting a compensable evaluation at an earlier period. Accordingly, a compensable rating is not warranted for the period prior to March 27, 2019; a rating in excess of 10 percent is not warranted for the period prior to August 27, 2020; and a rating in excess of 20 percent is not warranted for the period thereafter. See 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. The preponderance of the evidence is against his claim for increased evaluations. Consequently, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (U.S. 1990). MICHAEL D. LYON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Sneeringer, 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.