Citation Nr: 21039914 Decision Date: 07/01/21 Archive Date: 07/01/21 DOCKET NO. 15-08 765A DATE: July 1, 2021 ORDER A higher rating for service-connected bilateral hearing loss, currently noncompensable through April 13, 2021, and 10 percent beginning April 14, 2021, is denied. FINDING OF FACT The Veteran's auditory acuity level was I in his right ear and IV in his left ear, but his auditory acuity level as of April 14, 2021, is II in his right ear and VIII in his left ear. CONCLUSION OF LAW The criteria for a compensable rating through April 13, 2021, and a rating higher than 10 percent beginning April 14, 2021, for service-connected bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.383, 3.385, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.85 and 4.86 Diagnostic Code 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1965 to March 1988. This matter is on appeal from an October 2011 rating decision which continued his noncompensable (0 percent) rating for service-connected bilateral hearing loss. In December 2018 and January 2021, the Board of Veterans' Appeals (Board) remanded for additional development. An April 2021 rating decision increased the rating for the Veteran's service-connected bilateral hearing loss to 10 percent effective April 14, 2021, as a result of this development. This matter remains on appeal because that determination constitutes only a partial grant and covers only a portion of the period under consideration. AB v. Brown, 6 Vet. App. 35, 38 (1993). Higher Rating Ratings represent as far as practicably can be determined the average impairment in earning capacity due to a disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. A rating is assigned under the Rating Schedule by comparing the extent to which a disability impairs the ability to function under the ordinary conditions of daily life, as demonstrated by symptoms, with the criteria for that disability. Id.; 38 C.F.R. § 4.10; Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). The disability's history and all other relevant evidence is to be considered. 38 C.F.R. §§ 4.1, 4.6. Examinations are to be interpreted and, if necessary, reconciled. 38 C.F.R. § 4.2. When two ratings may be applicable, the higher is assigned only if the criteria for it are more nearly approximated. 38 C.F.R. § 4.7. Any reasonable doubt on this or any other point is resolved in the claimant's favor. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Different ratings may be assigned for different periods. Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007); Francisco v. Brown, 7 Vet. App. 55, 58 (1994). When a disability worsened thus must be determined. The period under consideration begins one year prior to the claim. 38 U.S.C. § 5110(b)(3); 38 C.F.R. § 3.400(o)(2). Bilateral Hearing Loss Bilateral hearing loss is rated pursuant to 38 C.F.R. §§ 4.85 and 4.86, Diagnostic Code 6100. Auditory acuity is measured by a pure tone threshold test in the frequencies of 1000, 2000, 3000 and 4000 cycles per second (Hertz) and the Maryland CNC controlled speech discrimination test. 38 C.F.R. § 4.85(a), (d). There are eleven auditory acuity levels, ranging from level I for essentially normal hearing through level XI for profound deafness. 38 C.F.R. § 4.85(b), (c). Based on the intersection point of the auditory acuity level for each ear, a rating is assigned using Table VII. 38 C.F.R. §§ 4.85(e), (h). The auditory acuity level for each ear usually is derived from Table VI, which considers the pure tone threshold average and the speech discrimination percentage. 38 C.F.R. §§ 4.85(b), (h). Table VIa considers only this average. 38 C.F.R. § 4.85(h). For an exceptional pattern of hearing loss, when the pure tone threshold at 1000, 2000, 3000, and 4000 Hertz is 55 decibels or more or is 30 decibels or less at 1000 hertz and 70 decibels or more at 2000 hertz, the auditory acuity level for each ear is the higher of that derived from Table VI or Table VIa. 38 C.F.R. §§ 4.85(h), 4.86(a), (b). This level then is elevated to the next higher level for the latter exceptional pattern of hearing loss. 38 C.F.R. § 4.86(b). As noted above, the Veteran's service-connected bilateral hearing loss currently is rated noncompensable through April 13, 2021, and 10 percent beginning April 14, 2021. He seeks a higher rating during both periods. In doing so, he has reported a worsening of his hearing since filing a notice of disagreement (NOD) on June 15, 2007. He clarified that this worsening was gradual in an August 2012 VA treatment record. He also reported in September 2012 that he now wears hearing aids in both ears, not just his left ear, which keeps him from going out and mingling with people. Finally, the Veteran reported at his April 2021 VA medical examination that he cannot hear the telephone when it rings and turns the television up so loud his wife and children complain. His representative argues that the effective date for his 10 percent rating should be earlier than April 14, 2021, as he has continuously pursued his claim and did not appear for a VA medical examination in September 2019 only because notice of it was sent to the wrong address. Clarification of the period under consideration is useful at the outset. A June 2007 rating decision continued a noncompensable rating for the Veteran's service-connected bilateral hearing loss. Notice of that determination was sent to him on June 15, 2007. His timely NOD challenging it was received in April 2008. In response, a statement of the case (SOC) was furnished in November 2008. Yet the Veteran did not respond to the SOC by filing a substantive appeal. His appeal was not perfected, in other words. 38 C.F.R. § 19.20 (an appeal consists of a timely filed NOD and, after a SOC has been furnished, a timely filed substantive appeal). It therefore was closed without notice to him or his representative. 38 C.F.R. § 19.32. The next document received was the instant claim, filed by him in April 2011. As such, the period under consideration begins one year earlier in April 2010. Anything that occurred prior thereto is useful only in conveying the history of the Veteran's disability. A VA treatment record dated in mid-May 2011 indicates that the Veteran has asymmetric bilateral hearing loss. It further indicates that he has worn a hearing aid in his left ear since November 2006 and was interested in one in his right ear. Reference was made to his pure tone thresholds, but the precise results of such testing were not reported. Even if it these results were available, however, the assessment of the Veteran's disability is still inadequate for rating purposes. Indeed, there is no indication of the test used to obtain his reported word recognition percentiles. That his left ear pure tone thresholds showed clinically significant worsening in comparison to previous testing, while his right ear did not, nevertheless is of import. So is the finding that he perceives his hearing handicap as significant. At his late May 2011 VA medical examination, the Veteran's pure tone thresholds, in decibels, were as follows: Hertz 1000 2000 3000 4000 Right 30 30 55 40 Left 50 75 70 75 His pure tone thresholds averaged 39 (rounded from 38.75) decibels in the right ear and 68 (rounded from 67.50) decibels in the left ear. Maryland CNC testing revealed speech discrimination of 96 percent in his right ear and 76 percent in his left ear. A June 2011 VA treatment record reveals that the Veteran was fitted for a right ear hearing aid. Subsequent VA treatment records are inadequate for purposes for the same reason as the aforementioned May 2011 VA treatment record. Yet several points are nevertheless of import. Comparison of pure tone thresholds from July 2013 to previous showed no clinically significant changes in either ear. The Veteran's perception of his hearing handicap was severe then, and he noted wearing his heading aids full-time. Pure tone thresholds from in June 2015 were better in the left ear in comparison to those from July 2013, with no clinically significant changes otherwise. The Veteran related his concern that his hearing aids would be visible, alerting others to his disability, in July 2015. Finally, comparison of pure tone thresholds obtained in October 2016 with previous showed no clinically significant changes. The Veteran continued to perceive his hearing handicap as severe then, and it was also found that he had moderate impairment hearing in noise. At his April 14, 2021, VA medical examination, the Veteran's pure tone thresholds, in decibels, were as follows: Hertz 1000 2000 3000 4000 Right 40 50 55 60 Left 60 80 75 75 His pure tone thresholds averaged 51 (rounded from 51.25) decibels in the right ear and 73 (rounded from 72.50) decibels in the left ear. Maryland CNC testing revealed speech discrimination of 84 percent in his right ear and 48 percent in his left ear. That ratings for hearing loss are derived mechanically from the auditory acuity level assigned based on pure tone threshold averages and speech discrimination percentages is emphasized. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). The Board finds that a compensable rating for the Veteran's service-connected bilateral hearing loss is not warranted through April 13, 2021. Pure tone thresholds from the May 2011 VA medical examination do not represent an exceptional pattern of hearing loss in either ear. The auditory acuity level for both ears thus will be derived from Table VI. Under it, the threshold averages and speech discrimination percentages obtained correlate to Level I for the right ear and Level IV for the left ear. The intersection point of Level I in the better ear with Level IV in the poorer ear results in the assignment of a noncompensable rating under Table VII. This is despite the worsening of pure tone thresholds in his left ear noted by the contemporaneous VA treatment record. Relevant VA treatment records after the examination, which are dated only into October 2016, significantly do not reflect a worsening of pure tone thresholds in either of the Veteran's ears. Next, the Board finds that a rating higher than 10 percent for the Veteran's service-connected bilateral hearing loss is not warranted beginning April 14, 2021. Pure tone thresholds from the VA medical examination on that date represent an exceptional pattern of hearing loss in his left ear but not in his right ear. The auditory acuity level for the left ear thus will be derived from Table VI or Table VIa, whichever is higher, while the auditory acuity level for the right ear will be derived only from Table VI. Under Table VI, the threshold averages and speech discrimination percentages obtained correlate to Level II for the right ear and Level VIII for the left ear. The threshold averages obtained correlate only to Level VI for the left ear under Table VIa. Use of Table VI accordingly results in a higher auditory acuity level than Table VIa for the left ear. The intersection point of Level II in the better ear with Level VIII in the poorer ear results in the assignment of a 10 percent rating under Table VII. Continuance of the currently assigned noncompensable rating through April 13, 2021, and 10 percent rating beginning April 14, 2021, in sum, is supported by the medical evidence. With respect to the lay evidence, the Veteran's reports about his bilateral hearing loss undisputedly are competent as well as credible. His disability indeed has worsened over time, as signified by the stage in his rating (noncompensable in one stage, 10 percent in the next stage), even though his perception of how bad it is may not match the rating for each stage. The functional limitations of his disability, specifically that he has moderate impairment hearing in noise, cannot hear the telephone ringing, has to turn the television up loud, and desires to prevent others from knowing he wears hearing aids in both ears, have been considered as required. Martinak v. Nicholson, 21 Vet. App. 447, 455-56 (2007). They understandably are frustrating and perhaps embarrassing. However, they also are contemplated by the currently assigned noncompensable and 10 percent ratings. Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017). Turning to the argument of the Veteran's representative, it is correct that he has pursued his instant claim continuously since filing it in April 2011 and that he did not appear for a VA medical examination scheduled for September 2019 because notice of it was sent to the wrong address. Indeed, he informed VA of his change of address in April 2016. A different address was used for the examination notice, however, and this notice was returned to VA rather than delivered. Yet a higher rating generally is effective only as of the date entitlement arose or the date of the claim, whichever is later. 38 C.F.R. § 3.400(o)(1). The criteria for a 10 percent rating were first satisfied only at the Veteran's April 14, 2021, examination. It is unknown whether these criteria first would have been satisfied in September 2019 if he had been examined then. VA treatment records do not reveal anything about the severity of his disability after October 2016. There are no private treatment records revealing in this regard either. The Veteran notably has the responsibility to support his claim. 38 U.S.C. § 5107(a); Gilbert, 1 Vet. App. at 54. He could have submitted a private medical examination, whether dated before, during, or after September 2019. Yet he did not do so. Instead, he opted to rely on VA obtaining a medical examination in fulfillment of its duty to assist. There is no law governing when they must occur. The delay the Veteran experienced before undergoing his (September 2019 to April 14, 2021) is unfortunate, especially since it was through no fault of his own. However, the impact of this delay is not clear. There simply is no evidentiary basis to assign an effective date in September 2019, when the examination was originally scheduled, for the increase to 10 percent in his rating. Fairness also cannot form the basis of assigning an earlier effective date in September 2019. The Board may only grant entitlement to VA benefits authorized by law and does not have authority to grant them on an equitable basis. 38 U.S.C. §§ 503, 7104; Harvey v. Brown, 6 Vet. App. 416, 425 (1994). In conclusion, the date the Veteran's entitlement to a higher rating of 10 percent arose is April 14, 2021, when he underwent a VA medical examination. There is no prior date upon which it can be discerned that his bilateral hearing loss had gotten severe enough to merit this rating. As the preponderance of the evidence is against the Veteran's instant claim, there thus is no reasonable doubt to resolve in his favor. A higher rating for his service-connected bilateral hearing loss, currently noncompensable through April 13, 2021, and 10 percent beginning April 14, 2021, is denied. Thomas H. O'Shay Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Becker 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.