Citation Nr: 21039933 Decision Date: 07/01/21 Archive Date: 07/01/21 DOCKET NO. 19-30 447 DATE: July 1, 2021 ORDER Entitlement to an initial compensable evaluation for bilateral hearing loss from February 21, 2018, and increased ratings greater than 20 percent from August 1, 2018, greater than 0 percent from February 21, 2019, and greater than 10 percent from October 8, 2020, is denied. FINDINGS OF FACT 1. From February 21, 2018, the Veteran's bilateral hearing loss was manifested by no worse than Level I hearing in each ear. 2. From August 1, 2018, the Veteran's bilateral hearing loss was manifested by no worse than Level V hearing in each ear. 3. From February 21, 2019, the Veteran's bilateral hearing loss was manifested by no worse than Level I hearing in each ear. 4. From October 8, 2020, the Veteran's bilateral hearing loss was manifested by no worse than Level IV hearing in each ear. CONCLUSION OF LAW The criteria for a compensable initial rating from February 21, 2018, and increased ratings greater than 20 percent from August 1, 2018, greater than 0 percent from February 21, 2019, and greater than 10 percent from October 8, 2020, have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.385, 4.1, 4.7, 4.85, 4.86, Diagnostic Code 6100 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from September 1960 to September 1968. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a May 2018 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) which granted service connection for bilateral hearing loss at a noncompensable rating. In June 2020 and February 2021, the Board remanded the Veteran's appeal to the RO for further evidentiary development. The February 2021 remand directed the RO to attempt to obtain the specific clinical findings from VA audiological evaluations, including the audiometrics/ audiograms from the test that occurred on August 1, 2018. The requested audiometrics were obtained and added to the claims file on March 25, 2021. Thus, the RO substantially complied with the Board's remand directive. Stegall v. West, 11 Vet. App. 268 (1998), D'Aries v. Peake, 22 Vet. App. 97 (2008). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). Disability ratings and rating for hearing loss The Veteran contends that his bilateral hearing loss warrants an increased rating. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The Rating 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. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole to function under the ordinary conditions of daily life, including employment. See 38 C.F.R. § 4.10. Evidence to be considered in the appeal of an assignment of a disability rating is not limited to that reflecting the then current severity of the disorder. Fenderson v. West, 12 Vet. App. 119 (1999). In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt is resolved in the Veteran's favor. 38 C.F.R. § 4.3. In cases where the evaluation of hearing loss is at issue, an examination for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test using the Maryland CNC word list and a pure tone audiometry test. Examinations will be conducted without the use of hearing aids. 38 C.F.R. § 4.85(a). The horizontal lines in Table VI (in 38 C.F.R. § 4.85) represent nine categories of the percentage of discrimination based on the controlled speech discrimination test. The vertical columns in Table VI represent nine categories of decibel loss based on the pure tone audiometry test. The numerical designation of impaired efficiency (I through XI) will be determined for each ear by intersecting the horizontal row appropriate for the percentage of discrimination and the vertical column appropriate to pure tone decibel loss. For example, with the percentage of discrimination of 70 and an average pure tone decibel loss of 64, the numeric designation level is 'V' for one ear. The same procedure will be followed for the other ear. 38 C.F.R. § 4.85(b). The percentage evaluation will be found from Table VII (in 38 C.F.R. § 4.85) by intersecting the horizontal row appropriate for the numeric designation for the ear having the better hearing and the vertical column appropriate to the numeric designation level for the ear having the poorer hearing. For example, if the better ear has a numeric designation level of 'V,' and the poorer ear has a numeric designation level of 'VII,' the percentage evaluation is 30 percent. 38 C.F.R. § 4.85(e). Additionally, an alternate rating table (Table VIA) may be used for "exceptional patterns of hearing impairment," including cases where the pure tone thresholds at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) are 55 decibels or more, or where the pure tone thresholds are 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz. 38 C.F.R. § 4.86. 1. Entitlement to an initial compensable evaluation for bilateral hearing loss from February 21, 2018 The November 2020 rating decision created four stages for the ratings of hearing loss in this case. Turning to the evidence for the first stage, the Veteran underwent a private examination for hearing loss in February 2018 and submitted the report to VA. However, it is not clear whether the Maryland CNC word list was used, as required by VA regulations. 38 C.F.R. § 4.85(a). The pure tone thresholds from the February 2018 examination do not show an exceptional pattern of hearing loss within the meaning of 38 C.F.R. § 4.86 which would permit the use of Table VIA in assigning a rating without speech recognition data. 38 C.F.R. § 4.85. VA completed a Disability Benefits Questionnaire (DBQ) for Hearing Loss in May 2018. Pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 30 40 50 65 46 LEFT 25 50 65 70 53 Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 96 percent in the left ear. It is not necessary to remand this claim again in order to request clarification of whether the private doctor used the Maryland CNC word list in the February 2018 examination. Clarification of private medical reports is required only when "a private medical report is the only evidence on a material issue, and material medical evidence can no longer be obtained as to that issue, yet clarification of a relevant, objective fact would render the private medical report competent for the assignment of weight." Carter v. Shinseki, 26 Vet. App. 534, 545 (2014), vacated on other grounds by Carter v. McDonald, 794 F.3d 1342 (Fed. Cir. 2015) (citing Savage v. Shinseki, 24 Vet. App. 259, 26770 (2011)); Savage, 24 Vet. App. at 270 (specifically limiting this duty to situations where "the missing information is relevant, factual, and objectivethat is, not a matter of opinion" but also noting that, when it is applicable, the duty to clarify "includes medical examination reports of all kinds"). In this case, the record contains a May 2018 examination which complied with VA regulations; thus, remand for clarification is not required. Applying Table VI to the May 2018 results, the Veteran's right ear hearing loss warrants a numeral I and does not show an exceptional pattern of hearing loss. The left ear warrants a numeral I on Table VI and does not show an exceptional pattern of hearing loss. The Veteran's hearing impairment for this period will be determined by applying numeral I for each ear to Table VII, which yields a noncompensable 0 percent rating. 2. Entitlement to an increased rating in excess of 20 percent from August 1, 2018 On August 1, 2018, VA issued hearing aids to the Veteran. The RO obtained the audiometric results of that examination in March 2021. Pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 30 40 50 65 46 LEFT 30 55 65 70 55 Speech audiometry revealed speech recognition ability of 64 percent in the right ear and of 68 percent in the left ear. Applying Table VI to the August 2018 results, the Veteran's right ear hearing loss warrants a numeral V and does not show an exceptional pattern of hearing loss. The left ear warrants a numeral V on Table VI and similarly does not show an exceptional pattern of hearing loss. The Veteran's hearing impairment for this period will be determined by applying numeral V for each ear to Table VII, which yields a 20 percent rating. 3. Entitlement to an increased rating in excess of 0 percent from February 21, 2019 VA prepared a DBQ for hearing loss on February 21, 2019. Pure tone thresholds were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 30 50 55 75 52.5 LEFT 30 55 65 75 56.25 Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 92 percent in the left ear. The examiner diagnosed bilateral sensorineural hearing loss. In September 2019 letter to VA, the Veteran said that he struggled to complete the hearing examinations and that he struggles to hear people speaking to him. Applying Table VI to the February 2019 results, the Veteran's right ear hearing loss warrants a numeral I and does not show an exceptional pattern of hearing loss. The left ear also warrants a numeral I and does not show an exceptional pattern of hearing loss. The Veteran's hearing impairment for this period will be determined by applying numeral I for each ear to Table VII, which yields a 0 percent rating. 4. Entitlement to an increased rating in excess of 10 percent from October 8, 2020 VA completed another DBQ for hearing loss on October 8, 2020. Pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 30 45 55 65 48.75 LEFT 30 50 65 70 53.75 Speech audiometry revealed speech recognition ability of 68 percent in the right ear and of 76 percent in the left ear. The examiner diagnosed bilateral sensorineural hearing loss in the frequency ranges of 500-4000Hz and 6000Hz and higher. The accompanying medical opinion stated that the Veteran reported severe difficulty hearing and understanding most verbal communications, particularly in background noise, and said that it limited his social activity which was depressing to him. Applying Table VI to the October 2020 results, the Veteran's right ear hearing loss warrants a numeral IV and does not show an exceptional pattern of hearing loss. The left ear also warrants a numeral IV on Table VI and similarly does not show an exceptional pattern of hearing loss. The Veteran's hearing impairment for this period will be determined by applying numeral IV for each ear to Table VII, which yields a 10 percent rating. Conclusion The Board expressly acknowledges its consideration of the lay evidence of record when adjudicating this claim, including the September 2019 and October 2020 statements by the Veteran that his hearing loss has forced him to adapt his lifestyle and that he leans into people speaking to him and/or cups his hand around his ear, asks people to repeat themselves, and otherwise makes it difficult for him to engage people in conversation. 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 rating criteria contemplate speech reception thresholds and ability to hear spoken words on Maryland CNC testing. The functional impact that the Veteran described, is contemplated by the rating criteria. Doucette v. Shulkin, 28 Vet. App. 366 (2017). The Veteran's main complaint was reduced hearing acuity and clarity, which is what is contemplated in the rating assigned. See Rossy v. Shulkin, 29 Vet. App. 142, 145 (2017). 5. The Board has also considered whether additional staged ratings are appropriate. However, the above evidence reflects that the Veteran's symptomatology has been stable within each of the stages above. Therefore, additional staged ratings are not warranted in this case. Finally, as the assignment of an increased evaluation, and then its reduction, is a retroactive action, and not a prospective one, the provisions regarding reduction are not applicable. Singleton v. Shinseki, 23 Vet. App. 376 (2010); Reizenstein v. Peake, 22 Vet App 202 (2008), aff'd sub nom Reizenstein v. Shinseki, 583 F.3d 1331 (Fed. Cir. 2009). Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Dean, 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.