Citation Nr: 21040410 Decision Date: 07/03/21 Archive Date: 07/03/21 DOCKET NO. 15-23 816 DATE: July 3, 2021 ORDER Entitlement to a disability rating in excess of 30 percent for bilateral hearing loss is denied. REMANDED Entitlement to service connection for back condition is remanded. FINDING OF FACT During the period on appeal, the Veteran's bilateral hearing loss was manifested by no more than Level VI hearing acuity in the right ear and Level VII hearing acuity in the left ear. CONCLUSION OF LAW The criteria for entitlement to a disability rating in excess of 30 percent for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5103, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code (DC) 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty, including from August 1971 to March 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from July 2014 and January 2015 rating decisions of a VA Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge at a February 2019 hearing before the Board of Veterans' Appeals (Board). The Board remanded these claims in its April 2019 decision. 1. Entitlement to a disability rating in excess of 30 percent for bilateral hearing loss The Veteran asserts that his service-connected hearing loss is more severe than is reflected by his current 30 percent disability rating. Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. In cases in which a claim for a higher initial evaluation stems from an initial grant of service connection for the disability at issue, multiple ("staged") ratings may be assigned for different periods of time during the pendency of the appeal. See generally Fenderson v. West, 12 Vet. App. 119 (1999). Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings. See Francisco v. Brown, 7 Vet. App. 55 (1994); 38 C.F.R. § 4.2. Staged ratings are, however, appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. 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 required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. The Rating Schedule establishes 11 auditory hearing acuity levels based upon average pure tone thresholds and speech discrimination. See 38 C.F.R. § 4.85. Evaluations of bilateral defective hearing range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests together with the average hearing threshold level as measured by pure tone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 Hertz (cycles per second). The audiometric test results are then translated into a numeric designation ranging from Level I to Level XI, in order to evaluate the degree of disability from bilateral service-connected defective hearing. Id. In certain situations, the Rating Schedule provides for rating exceptional patterns of hearing impairment. 38 C.F.R. § 4.86. When the pure tone thresholds at the four specified frequencies of 1000, 2000, 3000, and 4000 Hz are 55 decibels or more under 38 C.F.R. § 4.86(a), or when the pure tone thresholds are 30 decibels or less at 1000 Hz and 70 decibels or more at 2000 Hz under 38 C.F.R. § 4.86(b), the Roman numeral designation for hearing impairment will be determined from either Table VI or Table VIA, whichever results in the higher numeral. In this case, the Veteran filed a claim for service connection for hearing loss in September 2012. During the Veteran's June 2013 VA examination for hearing loss, audiometric testing revealed the following scores: HERTZ June 2013 500 1000 2000 3000 4000 Avg. RIGHT 40 45 75 80 80 70 LEFT 40 45 85 75 75 70 Speech discrimination scores (Maryland CNC word list) were 72 percent for the right ear and 64 percent for the left ear. These scores correspond to Level VI hearing acuity for the right ear and Level VII for the left ear under Table VI of § 4.85. This equates to a 30 percent disability rating under Table VII. During the Veteran's February 2019 Board hearing, the Veteran reported his hearing loss had worsened since his previous VA examination. He had difficulty understanding everyday sounds and conversation, higher-pitched voices, as well as sounds produced by the letters L, S, and T. During the Veteran's January 2020 VA examination for hearing loss, audiometric testing revealed the following scores: HERTZ Jan. 2020 500 1000 2000 3000 4000 Avg. RIGHT 35 65 70 75 80 62.5 LEFT 35 65 70 75 70 63.75 Speech discrimination scores (Maryland CNC word list) were 68 percent for the right ear and 82 percent for the left ear. These scores correspond to Level V hearing acuity for the right ear and Level IV for the left ear under Table IV of § 4.85. This equates to a 10 percent disability rating under Table VII. The Veteran told the examiner he had difficulty with understanding conversation and everyday sounds. The Veteran reported wearing hearing aids. The Veteran's VA and private treatment records are negative for evidence of symptoms or audiometric test scores consistent with a higher disability rating. The Veteran has consistently asserted that his hearing loss warrants a higher disability rating. While the Veteran is competent to observe his hearing loss symptoms, he does not have the training or credentials to determine the current nature, extent, and severity of those symptoms. Additionally, he does not have the training or credentials to determine the proper disability evaluation concerning his hearing loss symptoms. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board finds the preponderance of the evidence is against the Veteran's claim for an increased rating for his hearing loss. The evidence of record indicates that the Veteran's hearing loss has manifested in, at worst, Level VI hearing loss in the right ear and Level VII in the left ear. This is consistent with a 30 percent disability rating. While the Veteran has asserted that his hearing loss has worsened, the evidence of record in fact suggests improvement in his hearing acuity. Based on these facts, the Board finds the preponderance of the evidence is against the Veteran's claim. Accordingly, the claim is denied. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). Notably, the evidence and contentions of record do not suggest that the question of entitlement to a total disability rating based on individual unemployability due to a service-connected disability has been raised in this case. Rice v. Shinseki, 22 Vet. App. 447 (2009). REASONS FOR REMAND 1. Entitlement to service connection for back condition is remanded. In the April 2019 Board remand, the Board directed the RO to provide the Veteran with a VA examination to assess the nature and etiology of his claimed back conditions. The examiner was instructed that consideration should be given to the Veteran's February 2019 Board hearing testimony. During the Veteran's January 2020 VA examination for back conditions and accompanying medical opinion, the VA examiner opined that the claimed condition was less likely than not related to active service. In a January 2020 statement, the Veteran's representative stated that the Veteran objected to the January 2020 medical opinion, as there was no indication that the examiner considered the February 2019 Board testimony. The Board agrees with the Veteran's objection and finds that this claim must be remanded for an addendum VA medical opinion. The matters are REMANDED for the following action: Obtain an addendum VA medical opinion from the January 2020 VA examination for back conditions examiner or, if unavailable, from another appropriate examiner. The entire claims file must be made available to the examiner. All necessary special studies or tests must be accomplished. First, please note each diagnosable back or spinal condition that the Veteran currently suffers from. Second, for each diagnosed condition, the examiner is asked to opine as to whether it is it at least as likely as not (a 50 percent probability or higher) that the condition had its onset during service or is otherwise related to active service. Consideration must be given to the Veteran's February 2019 Board hearing testimony and should be discussed in the examiner's rationale. All opinions must be supported by a rationale A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Hicks, 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.