Citation Nr: 21040695 Decision Date: 07/06/21 Archive Date: 07/06/21 DOCKET NO. 17-03 516 DATE: July 6, 2021 ORDER Prior to November 6, 2018, entitlement to an initial compensable evaluation for bilateral hearing loss is denied. Beginning November 6, 2018, an initial 50 percent rating, but no higher, for the Veteran's service-connected bilateral hearing loss is granted. FINDING OF FACT The evidence in the period prior to November 6, 2018 shows bilateral hearing acuity of no more than Level "II" in each ear, and hearing acuity of Level "VIII" in the right ear and Level "IX" in the left ear after November 6, 2018. CONCLUSION OF LAW The criteria for an initial compensable disability evaluation prior to November 6, 2018, and in excess of 50 percent thereafter for bilateral hearing loss disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.6, 4.85, 4.86. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran has active duty service from July 1965 to May 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an August 2016 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In October 2019, the Veteran and his spouse testified before a Veterans Law Judge (VLJ) who is no longer available to decide this appeal. The Veteran has waived his right to another Board hearing. In January 2020, the Board remanded this matter for additional development. That development was completed, and the case is again before the Board for appellate review. Law and Analysis Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 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. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 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 that rating. 38 C.F.R. § 4.7. In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. 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). However, where the question for consideration is the propriety of the initial ratings assigned, evaluation of the evidence since the effective date of the grant of service connection is required. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). Where VA's adjudication of the claim for increase is lengthy and factual findings show distinct time periods where the service-connected disability exhibits symptoms which would warrant different ratings, different or "staged" ratings may be assigned for such different periods of time. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Fenderson, 12 Vet. App. at 126-27. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the weight of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). In the August 2016 rating decision on appeal, the RO granted entitlement to service connection for bilateral hearing loss disability and rated the disorder noncompensable effective March 31, 2016. In a September 2020 rating decision, the RO granted a 50 percent rating effective March 11, 2020. The Veteran's bilateral hearing loss is rated under 38 C.F.R. § 4.85, Diagnostic Code (DC) 6100. In evaluating service-connected hearing loss, disability ratings are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are performed. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Evaluations of bilateral hearing loss range from noncompensable to 100 percent based on an organic impairment of hearing acuity, as measured by controlled speech discrimination tests in conjunction with the average hearing threshold, as measured by puretone audiometric tests in the frequencies of 1000, 2000, 3000 and 4000 cycles per second. The rating schedule establishes 11 auditory acuity Levels designated from Level I for essentially normal hearing acuity through Level XI for profound deafness. VA audiological evaluations are conducted using a controlled speech discrimination test together with the results of puretone audiometry tests. The vertical line in Table VI (printed in 38 C.F.R. § 4.85) represents nine categories of the percentage of discrimination based on a controlled speech discrimination test. The horizontal columns in Table VI represent nine categories of decibel loss based on the puretone audiometry test. The numeric designation of impaired hearing (Levels I through XI) is determined for each ear by intersecting the vertical row appropriate for the percentage of discrimination and the horizontal column appropriate to the puretone decibel loss. The percentage evaluation is found from Table VII (in 38 C.F.R. § 4.85) by intersecting the vertical column appropriate for the numeric designation for the ear having the better hearing acuity and the horizontal row appropriate for the numeric designation for the level for the ear having the poorer hearing acuity. For example, if the better ear had a numeric designation of Level "V" and the poorer ear had a numeric designation of Level "VII" the percentage evaluation is 30 percent. See 38 C.F.R. § 4.85. Regulations also provide that in cases of exceptional hearing loss, i.e., when the puretone threshold at each of the four specified frequencies (1,000, 2,000, 3,000 and 4,000 hertz) is 55 decibels or more, 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. Each ear will be evaluated separately. 38 C.F.R. § 4.86(a). The provisions of 38 C.F.R. § 4.86(b) further provide that when the puretone threshold is 30 decibels or less at 1,000 Hertz and 70 decibels or more at 2,000, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or VIa, whichever results in the higher numeral. That numeral will then be elevated to the next higher Roman numeral. In addition, 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 will be 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 § 4.86. See 38 C.F.R. § 4.85(c). The Board emphasizes that the puretone threshold at 500 Hertz is not used in determining the evaluation and will not be included in the threshold averages. It is used only in determining whether or not a ratable hearing loss exists. In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to a compensable evaluation for bilateral hearing loss prior to October 21, 2019, or an evaluation greater than 50 percent thereafter. Prior to November 6, 2018 During a July 2016 VA examination the Veteran complained of difficulty hearing high pitched sounds, that he needs the telephone and television volume turned up, that he needs to be face-to-face when speaking with someone, and that he has difficulty following conversations in a group setting. An audiogram revealed puretone thresholds, in decibels, as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 35 50 80 90 64 LEFT 30 35 70 100 59 The Maryland CNC controlled speech discrimination test revealed speech recognition of 92 percent in the right ear and 92 percent in the left ear. These audiometric findings equate to Level II hearing loss in the right ear and Level II hearing loss in the left ear. See 38 C.F.R. § 4.85, Table VI. When those values are applied to Table VII, a noncompensable evaluation is warranted for the Veteran's bilateral hearing loss under the provisions of 38 C.F.R. § 4.85. On and After November 6, 2018 A VA outpatient treatment record from November 6, 2018, documents the Veteran's complaint that his hearing had recently worsened which he attributed to radiation therapy for his sinuses which ended in August of that year. Audiometric testing was conducted, but the examiner indicated that there were issues with the tests. Specifically, that a word recognition score could not be provided due to speech impairment and a seal could not be maintained for acoustic reflex thresholding, decay testing, or tympanogram. During the October 2019 Board hearing, the Veteran testified that his disability had worsened since 2016. He reported needing to have face to face conversations and having the television volume loud. The Board does acknowledge that the Veteran submitted a February 2020 private audiological examination report. However, the examination report does not show that the Maryland CNC test was used. Rather, the report indicates that the NU-6 test was used. Under 38 C.F.R. § 4.85(a), an examination for hearing impairment for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a puretone audiometry test. Thus, the audiological evaluation is not adequate for rating purposes. See Savage v. Shinseki, 24 Vet. App. 259, 263-64 (2011). Following a remand from the Board, the Veteran was afforded an additional audiometric examination in March 2020. During the examination, the Veteran reported that he has to ask people to repeat themselves, especially if there is noise around. An audiogram revealed puretone thresholds, in decibels, as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 75 80 95 100 88 LEFT 80 90 105+ 105+ 95 The examiner certified that use of the Maryland CNC controlled speech discrimination test was not appropriate for this particular Veteran. Therefore, Table VIa applies. These audiometric findings equate to Level VIII hearing loss in the right ear and Level IX hearing loss in the left ear. See 38 C.F.R. § 4.85, Table VIa. When those values are applied to Table VII, a 50 percent evaluation is warranted for the Veteran's bilateral hearing loss under the provisions of 38 C.F.R. § 4.85. Unlike the November 2018 audiometric test report, the examination report did not indicate any difficulty maintaining a seal or other issues with the test. The earliest evidence of a worsening of the Veteran's hearing loss comes from the November 6, 2018 treatment record which documents the Veteran's complaint that his hearing had recently worsened. This was confirmed by the subsequent March 2020 VA examination. Accordingly, November 6, 2018 is the first date that it was factually ascertainable that the Veteran exhibited a worsening in his service-connected bilateral hearing loss disability sufficient to warrant a higher 50 percent rating. See Swain v. McDonald, 27 Vet. App. 219, 224 (2015) (holding that the effective date for an increased rating is predicated on when the increase in the disability can be factually ascertained). Since November 6, 2018, the Board finds no probative audiometric or speech discrimination results that support a rating in excess of 50 percent under 38 C.F.R. § 4.85, Diagnostic Code 6100. Based on the foregoing, the evidence does not show that the Veteran is entitled to a compensable evaluation prior to November 6, 2018, or an evaluation in excess of 50 percent after that date. The Board has considered the Veteran's lay assertions regarding his diminished hearing. However, the assignment of disability ratings for hearing impairment are derived by a mechanical application of the Rating Schedule to the numeric designations based on the audiology examination results. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). It is clear from the Rating Schedule that a higher rating can be awarded only when loss of hearing has reached a specified measurable level. As such, an increased evaluation is not warranted. See also Doucette v. Shulkin, 28 Vet. App. 366 (2017) (the rating criteria for hearing loss contemplate the functional effects of decreased hearing and difficulty understanding speech in an everyday work environment, as these are the effects that VA's audiometric tests are designed to measure). For the foregoing reasons and based on the evidence of record, the Board finds the preponderance of the evidence is against an initial compensable rating prior to October 21, 2019, and in excess of 50 percent thereafter. The Veteran and his representative have not raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). M. Donohue Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D.S. Chilcote, 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.