Citation Nr: 21040588 Decision Date: 07/06/21 Archive Date: 07/06/21 DOCKET NO. 16-34 376 DATE: July 6, 2021 ORDER Entitlement to a compensable rating for bilateral hearing loss prior to May 14, 2019, is denied. Entitlement to a 10 percent rating, but no higher, for bilateral hearing loss, from May 14, 2019 to April 21, 2021, is granted. Entitlement to a rating in excess of 50 percent for bilateral hearing loss from April 21, 2021, is denied. FINDINGS OF FACT 1. Prior to May 14, 2019, the Veteran's hearing loss has been manifested by no worse than Level IV hearing impairment in the right ear and Level II hearing impairment in the left ear. 2. From May 14, 2019 to April 21, 2021, the Veteran's hearing loss has been manifested by no worse than Level XI hearing impairment in the right ear and Level II hearing impairment in the left ear. 3. From April 21, 2021, the Veteran's hearing loss has been manifested by no worse than Level IX hearing impairment in the right ear and Level VIII hearing impairment in the left ear. CONCLUSIONS OF LAW 1. The criteria for a compensable rating for bilateral hearing loss are not met prior to May 14, 2019. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85, DC 6100, 4.86. 2. The criteria for a 10 percent rating, but no higher, for bilateral hearing loss are met from May 14, 2019 to April 21, 2021. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85, DC 6100, 4.86. 3. The criteria for a rating in excess of 50 percent for bilateral hearing loss are not from April 21, 2021. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85, DC 6100, 4.86. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from August 1979 to August 1983. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in January 2014 by a Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran testified before the undersigned Veterans Law Judge at a May 2019 videoconference hearing. The Board remanded the appeal in October 2019. The Board acknowledges that the Veteran briefly discussed his headaches and psychological disorder during his May 2019 Board hearing. Service connection for a mood disorder with pain disorder and adjustment insomnia was subsequently granted in a June 2019 rating decision and service connection for headaches was previously denied in a May 2013 rating decision. The Veteran is welcome to file a increased rating claim for his mood disorder or a petition to reopen his claim for headaches, if so desired. Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Increased Ratings: Bilateral Hearing Loss Hearing loss is evaluated under the criteria set forth in the VA Schedule for Rating Disabilities. VA disability compensation for impaired hearing is derived from the application in sequence of two tables. See 38 C.F.R. § 4.85, Table VI, Table VII. Table VI correlates the average pure tone sensitivity threshold (derived from the sum of the 1000, 2000, 3000, and 4000-hertz thresholds divided by four) with the ability to discriminate speech, providing a Roman numeral to represent the correlation. Each Roman numeral corresponds to a range of thresholds (in decibels) and of speech discriminations (in percentages). Level I represents essentially normal acuity, and numeric level XI represents profound deafness. The table is applied separately for each ear to derive the values used in Table VII. Table VII prescribes the disability rating based on the relationship between the values for each ear derived from Table VI. See 38 C.F.R. § 4.85. In cases involving exceptional patterns of hearing impairment, defined as where the pure tone sensitivity threshold is equal to or greater than 55 decibels at each of 1000, 2000, 3000, and 4000-hertz, then the veteran's hearing threshold is also applied to Table VIA, which provides a numeric designation of hearing impairment based solely upon pure tone threshold average. For each ear with an exceptional pattern of hearing impairment, the more favorable (i.e., greater) numeric designator from either Table VI or Table VIA is then applied to Table VII. See 38 C.F.R. § 4.86. Table VIa, "Numeric Designation of Hearing Impairment Based Only on Puretone Threshold Average," is used to determine a Roman numeral designation (I through XI) for hearing impairment based only on the puretone threshold average. Table VIa is used when the examiner certifies that use of the speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc., or when indicated under the provisions of Section 4.86. 38 C.F.R. § 4.85(c). 1. Entitlement to a compensable rating for bilateral hearing loss prior to May 14, 2019, is denied. 2. Entitlement to a 10 percent rating, but no higher, for bilateral hearing loss, from May 14, 2019 to April 21, 2021, is granted. 3. Entitlement to a rating in excess of 50 percent for bilateral hearing loss from April 21, 2021, is denied. The Veteran is currently in receipt of a noncompensable rating for bilateral hearing loss prior to September 23, 2020; at a 10 percent rating from September 23, 2020; and at a 50 percent rating from April 21, 2021. The appeal period is from August 22, 2013, the date the Veteran filed his increased rating claim, plus the one-year lookback period. See Gaston v. Shinseki, 605 F.3d 979, 984 (Fed. Cir. 2010). Controlled speech discrimination testing (Maryland CNC) and pure tone audiometry testing results from VA audiology examinations were conducted in January 2014, February 2015, April 2018, September 2020, and April 2021. The January 2014 VA examination report shows right ear hearing thresholds of 10 decibels at 1000 hertz, 70 decibels at 2000 hertz, 70 decibels at 3000 hertz, and 70 decibels at 4000 hertz, with 92 percent speech discrimination. See January 2014 VA Audiology Examination Report. The examination report shows left ear hearing thresholds of 10 decibels at 1000 hertz, 60 decibels at 2000 hertz, 65 decibels at 3000 hertz, and 65 decibels at 4000 hertz, with 96 percent speech discrimination. Id. The Veteran had an average sensitivity threshold of 55 decibels for the right ear and 50 decibels for the left ear. Id. These results correlate to a Level I impairment in the right ear and a Level I impairment in the left ear, warranting a 0 percent disability rating. See 38 C.F.R. § 4.85, Table VI, Table VII (DC 6100). However, an exceptional pattern of hearing is demonstrated on the right ear, warranting a finding of Level III impairment in the right ear when using puretone threshold only. 38 C.F.R. § 4.86(a). When combined with a Level I on the left ear, however, a noncompensable rating is still warranted. The February 2015 VA examination report shows right ear hearing thresholds of 20 decibels at 1000 hertz, 75 decibels at 2000 hertz, 75 decibels at 3000 hertz, and 75 decibels at 4000 hertz, with 88 percent speech discrimination. See February 2015 VA Audiology Examination Report. The examination report shows left ear hearing thresholds of 15 decibels at 1000 hertz, 60 decibels at 2000 hertz, 65 decibels at 3000 hertz, and 65 decibels at 4000 hertz, with 92 percent speech discrimination. Id. The Veteran had an average sensitivity threshold of 61 decibels for the right ear and 51 decibels for the left ear. Id. These results correlate to a Level III impairment in the right ear and a Level I impairment in the left ear, warranting a 0 percent disability rating. See 38 C.F.R. § 4.85, Table VI, Table VII (DC 6100). However, an exceptional pattern of hearing is demonstrated on the right ear, warranting a finding of Level IV impairment in the right ear when using puretone threshold only. 38 C.F.R. § 4.86(a). When combined with a Level I on the left ear, however, a noncompensable rating is still warranted. The April 2018 VA examination report shows right ear hearing thresholds of 45 decibels at 1000 hertz, 90 decibels at 2000 hertz, 90 decibels at 3000 hertz, and 85 decibels at 4000 hertz, with 100 percent speech discrimination. See April 2018 VA Audiology Examination Report. The examination report shows left ear hearing thresholds of 50 decibels at 1000 hertz, 75 decibels at 2000 hertz, 75 decibels at 3000 hertz, and 65 decibels at 4000 hertz, with 100 percent speech discrimination. Id. The Veteran had an average sensitivity threshold of 78 decibels for the right ear and 66 decibels for the left ear. Id. These results correlate to a Level II impairment in the right ear and a Level II impairment in the left ear, warranting a noncompensable disability rating. See 38 C.F.R. § 4.85, Table VI, Table VII (DC 6100). The Veteran testified before the undersigned on May 14, 2019 that his hearing loss disability had worsened. See May 2019 Board Hearing Transcript at 4. The September 2020 VA examination report shows right ear hearing thresholds of 75 decibels at 1000 hertz, 95 decibels at 2000 hertz, 95 decibels at 3000 hertz, and 95 decibels at 4000 hertz, with 0 percent speech discrimination. See September 2020 VA Audiology Examination Report. The examination report shows left ear hearing thresholds of 45 decibels at 1000 hertz, 70 decibels at 2000 hertz, 75 decibels at 3000 hertz, and 65 decibels at 4000 hertz, with 98 percent speech discrimination. Id. The Veteran had an average sensitivity threshold of 90 decibels for the right ear and 64 decibels for the left ear. Id. The Board notes the examiner's indication that the right ear speech discrimination score is not appropriate to use. However, the Board finds the question as to whether or not the Board may employ the 0 percent speech discrimination score moot, as the Veteran is not prejudiced by the inability to use Table VI (noting a value of "XI" when the puretone threshold average and speech discrimination score are combined), and only use Table VIA (noting a value of "VIII" for puretone threshold only) for application, as they both yield a 10 percent rating when combined with Level II impairment for the left ear. 38 C.F.R. §§ 4.85(c), 4.86(a). In other words, the Veteran's current 10 percent rating is already the same as a rating that takes into account the 0 percent right ear speech discrimination score. The April 21, 2021 VA examination report shows right ear hearing thresholds of 75 decibels at 1000 hertz, 95 decibels at 2000 hertz, 105 decibels at 3000 hertz, and 105 decibels at 4000 hertz, with 94 percent speech discrimination. See April 2021 VA Audiology Examination Report. The examination report shows left ear hearing thresholds of 70 decibels at 1000 hertz, 90 decibels at 2000 hertz, 90 decibels at 3000 hertz, and 90 decibels at 4000 hertz, with 96 percent speech discrimination. Id. The Veteran had an average sensitivity threshold of 95 decibels for the right ear and 85 decibels for the left ear. Id. These results correlate to a Level III impairment in the right ear and a Level III impairment in the left ear, warranting a 0 percent disability rating. See 38 C.F.R. § 4.85, Table VI, Table VII (DC 6100). However, an exceptional pattern of hearing is demonstrated in both ears, warranting a finding of Level IX impairment in the right ear and Level VIII impairment in the left ear when using puretone threshold only, combining to warrant a 50 percent rating. 38 C.F.R. § 4.86(a). The Board notes the Veteran's contention that his January 2014 VA examination was inadequate. See October 2014 Notice of Disagreement (NOD); May 2019 Board Hearing. However, the Board finds that the Veteran is not prejudiced in this regard, as the subsequent compliant February 2015 VA examination also results in a noncompensable rating. The evidence prior to May 14, 2019 does not allow for a compensable rating for the Veteran's bilateral hearing loss. On May 14, 2019, the Veteran testified at the Board hearing that his hearing had worsened, and the Board recognizes that when he presented for a subsequent VA examination in August 2020 due to the same, he could not complete the examination due to ear pain. However, the most recent VA examination subsequent to the Board hearing, in September 2020, warrants a 10 percent rating. The Board will not prejudice the Veteran for the inability to complete the August 2020 examination, and in doing so and in resolving all reasonable doubt in favor of the Veteran, finds that 10 percent rating is warranted from May 14, 2019, the date he reported worsening, based on the September 2020 VA examination results. (The Board notes that in a March 2018 VA form 21-4138, the Veteran noted that his hearing worsened; however, as noted above, the April 2018 VA examination report does not support a compensable rating.) In continuing to resolve all reasonable doubt in the Veteran's favor, the Board finds that, due to the close temporal proximity of the April 2021 VA examination, which warrants a 50 percent rating, and the September 2020 VA examination (warranting a 10 percent rating), a 50 percent rating should be awarded from the earlier of these examination dates, or September 23, 2020. A rating higher than 50 percent is precluded from that date, since there are no audiometric hearing evaluations consistent with a higher rating under 38 C.F.R. § 4.85. The Board notes that the February 2015, December 2019, September 2020, and the April 2021 VA examiners noted the functional impact of the Veteran's bilateral sensorineural hearing loss (difficulty hearing and understanding conversation, particularly with background noise). Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). However, as noted above, the assignment of disability ratings for hearing impairment are derived by a mechanical application of audiometric evaluation results to the rating schedule. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). The Board acknowledges the Veteran's statements in his July 2016 VA Form 9 that he cannot hear normal, full sentences and that for the last thirty years his wife has told him to stop yelling and speaking so loudly. It further acknowledges the testimony given at the Board hearing that he has trouble hearing complete sentences; the noisy environment of working in a kitchen as a chef makes it more difficult to hear; he has trouble speaking on the telephone; he has to ask people to repeat themselves or read their lips; his hearing had worsened; he cannot hear important sounds while driving, such as a someone warning him of danger by honking the horn; and wearing hearing aids hurt his ears. See May 2019 Board Hearing. The Board also notes the testimony given by the Veteran's spouse at the Board hearing that the Veteran cannot hear when he in close proximity to people; it is getting progressively worse; she has to repeat what others say to him; and his hearing loss has put a strain on their relationship. Id. The Board also notes the various VA treatment records noting the Veteran's difficulties with his hearing. See January 2014, March 2014, and March 2018 VA treatment records. However, as noted above, the assignment of disability ratings for hearing impairment are derived by a mechanical application of audiometric evaluation results to the rating schedule and the Board may not award an increased rating for hearing loss based on lay statements alone. See Lendenmann, supra. S. BUSH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. J. Rogers, 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.