Citation Nr: 21040146 Decision Date: 07/02/21 Archive Date: 07/02/21 DOCKET NO. 16-50 467 DATE: July 2, 2021 ORDER Entitlement to a compensable rating for bilateral hearing loss prior to December 23, 2019, and in excess of 40 percent thereafter, is denied. FINDINGS OF FACT 1. Prior to December 23, 2019, the Veteran's bilateral hearing loss was shown at worst with Level II hearing acuity in the right and left ear. 2. From December 23, 2019, the Veteran's hearing loss was manifested by hearing acuity of Level VII in the right ear and Level VIII in the left ear. CONCLUSIONS OF LAW 1. Prior to December 23, 2019, the criteria for a compensable rating for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100. 2. From December 23, 2019, the criteria for a rating in excess of 40 percent for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably in the United States Navy from December 1968 to December 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas, which continued a noncompensable rating for bilateral hearing loss. In July 2020, the RO increased the rating to 40 percent, effective December 23, 2019. The Veteran's appeal was remanded for a new medical examination by the Board in November 2019. The appeal has been returned to the Board for additional appellate review. The Board finds substantial compliance with the remand directives has been met. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Additional VA treatment records were added to the file after the case was transferred to the Board. In the October 2020 Informal Hearing Presentation, the Veteran's representative waived initial RO consideration of additional evidence. See 38 C.F.R. § 20.1305(c). Entitlement to a compensable rating for bilateral hearing loss prior to December 23, 2019, and in excess of 40 percent thereafter, is denied. Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § § 3.321(a), 4.1. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. The relevant temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period, which began one year before the claim was filed until the VA makes a final decision on the claim. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Ratings for hearing loss are determined in accordance with the findings obtained on audiometric examinations. Hearing loss disability evaluations range from noncompensable, or 0 percent, to a maximum of 100 percent based on the degree of hearing impairment. In disability examinations, the VA measures the degree of hearing loss with a controlled speech discrimination test, the Maryland CNC test, along with an average hearing threshold test, known as the puretone audiometric test, in the frequencies, or pitches, of 1000, 2000, 3000, and 4000 vibrations per second (Hertz, which is abbreviated as Hz). To evaluate the degree of disability from bilateral service-connected hearing loss, the schedule establishes 11 auditory hearing acuity levels designated from Level I for essentially normal hearing acuity through Level XI for profound deafness. 38 C.F.R. § 4.85, Tables VI and VII. An exceptional pattern of hearing impairment occurs when the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more. 38 C.F.R. § 4.86(a). 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. Further, when the average puretone 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, and that numeral will then be elevated to the next higher numeral. 38 C.F.R. § 4.86(b). In addition to dictating objective test results, a VA examination must provide the functional effects caused by a hearing disability. However, even if an examiner's description of the functional effects of a veteran's hearing disability was somehow defective, the veteran bears the burden of proving any prejudice caused by a deficiency in the examination. Martinak v. Nicholson, 21 Vet. App. 447 (2007). Prior to December 23, 2019 A private April 2015 examination recorded the Veteran's puretone thresholds, in decibels, as follows: 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz Avg. 1000 Hz 4000 Hz Right Ear 40 15 40 45 80 45 Left Ear 25 20 25 40 50 34 (rounded up) Although it is unclear whether the Maryland CNC test was used, assuming the Maryland CNC test was used, the speech discrimination score was 92 percent in the right ear and 96 percent in the left ear. The average of the 1000-4000 Hz thresholds is 45 decibels for the right ear and 34 decibels for the left ear. Under 38 C.F.R. § 4.85 and Table VI, these results correspond to Level I acuity in the right ear and Level I acuity in the left ear. Those levels warrant a noncompensable, or 0 percent rating, under Table VII. The Veteran's test results do not demonstrate an exceptional pattern of hearing loss, as per 38 C.F.R. § 4.86. The Veteran was examined in October 2015. He contends the examination is inadequate because the examiner instructed him to indicate that he heard tones even if he did not hear tones but thought he did. See e.g., January 2020 Correspondence. The Board notes that the October 2015 examiner reported that the results were inadequate for rating purposes, citing inconsistencies between puretone thresholds and speech recognition scores, and noting the need for reinstruction. Because of doubts as to the validity of the examination, the Board affords it no probative value. A February 2016 VA treatment record shows that the following procedures were performed: comprehensive audiometry, tympanometry (impedance testing), a hearing aid examination and selection, and distortion product evoked otoacoustic emissions. The Veteran's pure tone thresholds, in decibels, were not recorded. However, the Board notes that this testing is not valid for rating purposes as the Maryland CNC speech recognition test was not used. See 38 C.F.R. § 4.85. Instead, the Northwestern University Auditory Test. No. 6 was administered to assess speech recognition ("tested via recorded voice using NU-6 25 words"). The Veteran furnished a private hearing loss examination report conducted in March 2018 by Hearing Health Associates. Puretone thresholds, in decibels, were as follows: 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz Avg. 1000 Hz 4000 Hz Right Ear 45 35 40 60 85 55 Left Ear 45 50 70 75 80 69 (rounded up) Using the Maryland CNC word list, speech discrimination scores were 80 percent for the right ear and 96 percent for the left ear. The average of the 1000-4000 Hz thresholds is 55 decibels for the right ear and 69 decibels for the left ear. Under 38 C.F.R. § 4.85 and Table VI, these results correspond to Level II acuity in the right and left ear. Those levels warrant a noncompensable, or 0 percent rating, under Table VII. Based on the evidence described above, the Board finds that a compensable rating is not warranted during this time period. From December 23, 2019 The December 2019 VA examination revealed the following puretone thresholds, in decibels: 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz Avg. 1000 Hz 4000 Hz Right Ear 55 45 50 65 85 61 (rounded down) Left Ear 50 40 55 60 65 55 Using the Maryland CNC word list, the speech recognition score was 55 percent in the right ear and 50 percent in the left ear. Using the final speech recognition thresholds, the Veteran's right ear, as measured under Table VI of the regulations, would qualify as Level VII, and the Veteran's left ear would qualify as Level VIII, under Table VI. 38 C.F.R. § 4.86. The results from this test equate to a 40 percent rating under Table VII of 38 C.F.R. § 4.85. The Veteran's representative maintains that the Veteran's December 2019 speech recognition thresholds were 40 percent in his right ear and 64 percent in his left ear. October 2020 Informal Hearing Presentation. The Board notes that the December 2019 report does not contain a value of "40" with respect to speech recognition. However, to the extent the representative is referencing the PBMAX numbers, the Board notes that these numbers correspond to sub-scores on wordlists as the decibel level is adjusted and are not the final speech recognition thresholds for the December 2019 VA examination. In any event, even if the PBMAX scores of 48 and 64 were used, they result in Level VIII in the right ear and Level VI in the left ear, which equates to a 40 percent rating under Table VII. VA treatment records contain a December 2020 audiologic examination. The provider noted a moderate to severe sloping sensorineural hearing loss in the right ear and a mild to severe sloping sensorineural hearing loss in the left ear. She stated that "when compared to the most recent audiological evaluation, a 15 dB HL change in pure tone thresholds was noted at 500 Hz and 8000 Hz in the left ear." She further stated that that word recognition scores were "not significantly different between exams." This testing is not valid for rating purposes as the Maryland CNC speech recognition test was not used. See 38 C.F.R. § 4.85. Instead, the Northwestern University Auditory Test. No. 6 was administered to assess speech recognition ("tested via recorded voice using NU-6 25 words"). The Board acknowledges that the Veteran has difficulty hearing the television and listening when there is background noise and wind. He has stated that he wears hearing aids "all the time, except when mowing." However, rating a hearing loss disability involves a mechanical application of the rating criteria to the specified audiometric results. The schedular rating criteria for hearing loss contemplate the functional effects of decreased hearing and difficulty understanding speech in an everyday environment. Doucette v. Shulkin, 28 Vet. App. 366, 369 (2017). Hence, the Board has no discretion in this matter and must predicate its determination on the basis of the results of the audiometric studies in the record. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). In sum, there is no basis for an increased rating above the ratings to which the Veteran is already entitled. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the doubt doctrine; however, given the mechanical method of deriving schedular ratings for hearing loss, that doctrine is not applicable. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Rebecca N. Poulson Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Hennessy, 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.