Citation Nr: 21041097 Decision Date: 07/08/21 Archive Date: 07/08/21 DOCKET NO. 17-06 818 DATE: July 8, 2021 ORDER Effective June 10, 2014, an 80 percent rating, but no higher, for service-connected bilateral hearing loss is granted. FINDING OF FACT Throughout the appeal period, the Veteran's auditory acuity is reflected by level IX in his right ear and XI in his left ear. CONCLUSION OF LAW The criteria for entitlement to an initial rating of 80 percent for bilateral hearing loss have been met. 38 U.S.C. §§ 1155, 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 from December 1966 to April 1969. This appeal to the Board of Veterans' Appeals is from a January 2015 rating decision. In February 2020, the Veteran had a personal hearing with the undersigned VLJ. A transcript of the hearing is of record. The Board remanded the matter on March 2020 so an updated examination could be conducted. During the appeal the RO granted the Veteran a rating of 80 percent for bilateral hearing loss, effective April 7, 2021, in an April 2021 ratings decision. Disability evaluations are determined by the application of the VA 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 their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. VA's determination of the "present level" of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period the increased rating claim has been pending and, consequently, staged ratings are 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. Hart v. Mansfield, 21 Vet. App. 505 (2007). Where there is a question as to which of the 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. 38 C.F.R. § 4.7. The Veteran is currently assigned an 80 percent evaluation for bilateral hearing loss under the provisions of DC 6100 of the Rating Schedule as the April 2019 VA examination. A noncompensable rating is assigned prior to this date. See 38 C.F.R. § 4.85. Under the VA Rating Schedule, hearing impairment is evaluated based on audiological testing, including a puretone audiometry test and the Maryland CNC controlled speech discrimination test. See 38 C.F.R. § 4.85. To evaluate the degree of disability from defective hearing, the Rating Schedule establishes eleven auditory acuity levels from Level I for essentially normal acuity through Level XI for profound deafness. Id. Table VI is used to assign a Roman numeral designation for hearing impairment based on a combination of the percent of speech discrimination and the puretone threshold average. See 38 C.F.R. § 4.85(b). The puretone threshold average is the average of the puretone thresholds, in decibels, at 1000, 2000, 3000, and 4000 Hertz, shown on a puretone audiometry test. See 38 C.F.R. § 4.85. When there is no speech discrimination testing, Table VIa is used, based on the puretone threshold average alone if the examiner certifies the use of the speech discrimination test is not appropriate, or when indicated under the provisions of 38 C.F.R. § 4.86. See 38 C.F.R. § 4.85(c). Table VII is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment for each ear. See 38 C.F.R. § 4.85(e). Special provisions apply in instances of exceptional hearing loss. See 38 C.F.R. § 4.86. When the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) are all 55 decibels or more, the adjudicator must determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa in 38 C.F.R. § 4.85, whichever results in the higher numeral. 38 C.F.R. § 4.86(a). Also, when the 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. That numeral will then be elevated to the next higher Roman numeral. Each ear is evaluated separately. 38 C.F.R. § 4.86(b). When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in the veteran's favor. 38 C.F.R. §§ 3.102, 4.3. Once the evidence is assembled, the Board is responsible for determining whether the preponderance of the evidence is against the claim. If so, the claim is denied; if the evidence is in support of the claim or is in equal balance, the claim is allowed. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). 1. Entitlement to increase for service-connected bilateral hearing loss The Veteran underwent a VA audiological evaluation in August 2014, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 65 70 65 80 80 LEFT 30 40 50 60 65 Speech audiometry revealed right ear has a speech discrimination of 84 with an average decibel loss of 74 and his left ear has a speech discrimination of 96 with an average decibel loss of 54. This does not reflect an exceptional pattern of hearing loss. Applying the results to Table VI, the findings yield a numeric designation of Level III in right ear and Level I in the left ear. These numeric designations in combination correspond to a noncompensable rating under Table VII. On the authorized VA audiological evaluation in April 2021, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 70 75 70 75 75 LEFT 55 65 80 95 90 The VA exam conducted on April 2021 show the left ear with 30 percent speech discrimination and average decibel loss is 83 in the left ear. The right ear shows a speech discrimination of 48 percent and average decibel loss is 74 in the right ear. This is reflected by level IX in his right ear and XI in his left ear. These levels result in an 80 percent rating. The Veteran has not asserted specific disagreement with the current 80 percent rating and the Board does not find evidence reflective of greater current disability. The RO granted the Veteran a rating of 80 percent for bilateral hearing loss, effective April 7, 2021 (the date of the exam), in an April 2021 ratings decision. Based on the evidence above, a rating in excess of 80 percent for the Veteran's bilateral hearing loss is not warranted. The Board has carefully considered whether the record is complete and finds that all relevant evidence is of record and there is no indication that outstanding evidence relates to entitlement to a rating in excess of 80 percent. The Board notes that the above audiological findings do qualify as an exceptional pattern of hearing impairment under 38 C.F.R. § 4.86, but use of this table does not result in higher numeric designation, and therefore, these provisions do not support this claim. The Board acknowledges the lay evidence of record, including the spouse and the Veteran's assertions that he has difficulty hearing conversations, particularly over the telephone. 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 functional impact that the Veteran describes is contemplated by the rating criteria. Doucette v. Shulkin, 28 Vet. App. 366 (2017). The Veteran's main complaint is reduced hearing acuity and clarity, which is what is contemplated in the rating assigned. See Rossy v. Shulkin, 29 Vet. App. 142, 145 (2017). As to the effective date of the 80 percent rating assigned by the AOJ, the Board finds that the dramatic change in results from the two examinations lends support to the contention that the earlier examination was not an accurate reflection of his hearing ability. Resolving reasonable doubt, the Board finds that the earlier examination results should not be used. Although the Veteran also asserted increase in severity from the last examination, after careful consideration of the evidence in light of these contentions, the Board finds that the April 2021 VA examination is not most accurate reflection of the hearing loss severity throughout the appeal period, and on this basis, grants the 80 percent rating throughout the appeal period. Based on this grant, the service-connected disabilities result in a 100 percent combined rating throughout the appeal period. As the record does not reflect that the hearing loss alone causes unemployability, the Board finds that the issue of whether a total disability based on individual unemployability (TDIU) is not for further consideration under this procedural history and facts. Accordingly, the Board grants the 80 percent rating from the date of service connection. Entitlement to a higher rating is not warranted. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Nathaniel J. Doan Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Ottley III 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.