Citation Nr: 21041243 Decision Date: 07/08/21 Archive Date: 07/08/21 DOCKET NO. 16-53 724A DATE: July 8, 2021 ORDER A compensable rating for bilateral sensorineural hearing loss prior to October 4, 2019, and in excess of 30 percent thereafter, is denied. FINDING OF FACT Prior to October 4, 2019, the Veteran has demonstrated at worst level II hearing impairment in both ears; thereafter, he has demonstrated at worst level VI hearing impairment bilaterally. CONCLUSION OF LAW The criteria for entitlement to a compensable rating prior to October 4, 2019, for bilateral sensorineural hearing loss, and in excess of 30 percent thereafter, have not been met. 38 U.S.C. § 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.10, 4.85, 4.86, Diagnostic Code (DC) 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty with the United States Army from January 1971 to October 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that this matter was remanded to the Agency of Original Jurisdiction (AOJ) in January 2019 for further development, which has since been completed. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Following the remand, the Regional Office (RO) increased the Veteran's disability rating to 30 percent, with an effective date of October 4, 2019. As this does not constitute the maximum award possible and the Veteran has not expressed satisfaction with the award as assigned, the matter has been returned to the Board and recharacterized as set forth herein. AB v. Brown, 6 Vet. App. 35 (1993). 1. Entitlement to a compensable rating for bilateral sensorineural hearing loss prior to October 4, 2019, and in excess of 30 percent thereafter Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects their ability to function under the ordinary conditions of daily life, including employment, by comparing their symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Evaluations of defective hearing range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of a controlled Maryland CNC speech discrimination test together with the average hearing threshold level measured by puretone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hertz). 38 C.F.R. § 4.85, Diagnostic Code 6100. 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). The Veteran was initially granted service connection for bilateral hearing loss in June 2011, at which time he was assigned a non-compensable rating effective October 13, 2010, the date on which the Veteran filed the claim for service connection. Following the January 2019 Board remand, the rating was increased to 30 percent with an effective date of October 4, 2019, based upon demonstrated decreases in the Veteran's hearing acuity. This matter has returned to the Board for further adjudication. During an April 2011 VA examination, the Veteran reported difficulty hearing conversations when he cannot see the speaker's face and over the television. Audiometric testing was conducted, and the Veteran's puretone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 30 30 40 45 LEFT 20 30 50 60 As calculated by the examiner and confirmed by the Board, puretone averages were 36.25 in the right ear and 40 in the left ear. Speech audiometry revealed speech recognition ability of 92 percent in the right ear and 88 percent in the left ear. The examiner rendered a diagnosis of sensorineural hearing loss. The Veteran did not show exceptional patterns of hearing impairment at that time. 38 C.F.R. § 4.86. Thus, in applying these results to the formula in 38 C.F.R. § 4.85, Table VI, these scores equate to a Level I in the right ear, and Level II in the left ear. Given these results, Table VII requires a noncompensable, or 0 percent, disability rating, as currently assigned. During a January 2012 VA examination, the Veteran reported that his hearing loss makes him nervous because he is always asking people to repeat themselves. Audiometric testing was conducted, and the Veteran's puretone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 15 20 30 50 LEFT 20 25 40 60 As calculated by the examiner and confirmed by the Board, the puretone averages were 28.75 percent in the right ear and 36.25 percent in the left ear. Speech audiometry revealed speech recognition ability of 94 percent in the right ear and 90 percent in the left ear. The examiner rendered a diagnosis of sensorineural hearing loss in both ears. In applying the formula in 38 C.F.R. § 4.85, Table VI, these scores equate to a Level I in the right ear, and Level II in the left ear. Table VII then requires a noncompensable, or 0 percent disability rating, as currently assigned. There was no exceptional pattern of hearing loss as defined by 38 C.F.R. § 4.86. The Veteran underwent a third VA examination in March 2014. The Veteran reported that he must have the television up so loud that no one wants to watch it with him. Also, he reported difficulty talking on the phone and understanding speech when he does not know the subject. At that time, puretone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 25 30 40 55 LEFT 25 30 50 55 As calculated by the Board, puretone averages were 37.5 percent in the right ear and 40 percent in the left ear. Word recognition testing was accomplished, showing word recognition of 90 percent in the right ear and 84 percent in the left ear. Under Table VI, these scores equate to a Level II in the right ear and a Level II in the left ear, resulting in a 0 percent rating under the provisions of 38 C.F.R. § 4.85, as currently assigned. There was no exceptional pattern of hearing loss as defined by 38 C.F.R. § 4.86. A June 2016 VA audiological note indicates that the Veteran was issued new hearing aids. Further, it noted that the Veteran was previously evaluated and found to exhibit significant hearing loss for which amplification was recommended. Following the January 2019 Board remand, the Veteran underwent a fourth VA examination in October 2019. The Veteran reported that his hearing aids have helped, but he still must ask others to repeat themselves. At that time, puretone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 45 75 75 75 LEFT 50 65 75 75 As calculated by the examiner and confirmed by the Board, the puretone averages were 67.5 percent in the right ear and 66.25 percent in the left ear. Word recognition testing was accomplished, showing word recognition of 72 percent in the right ear and 68 percent in the left ear. Under Table VI, these scores equate to a Level VI in both ears, for a 30 percent rating, as currently assigned, under the provisions of 38 C.F.R. § 4.85. There was no exceptional pattern of hearing loss as defined by 38 C.F.R. § 4.86. As shown above, the VA audiometric examinations do not support a compensable rating for the Veteran's bilateral hearing loss prior to October 4, 2019, and in excess of 30 percent thereafter. Additionally, prior to October 4, 2019, the Board cannot factually ascertain from the lay and medical evidence a specific date that the Veteran's hearing loss worsened to a compensable level. The Board is cognizant of the June 2016 VA audiological note where the Veteran was issued new hearing aids and reported that the Veteran was previously evaluated and found to exhibit significant hearing loss for which amplification was recommended. However, the June 2016 VA audiological note does not report the specific audiometric and word test findings necessary to establish any particular rating for that particular point in time prior to October 4, 2019. Furthermore, the VA examinations included discussion of the Veteran's reported functional impacts. Martinak v. Nicholson, 21 Vet. App. 447 (2007). During the VA examinations, the Veteran reported difficulties with hearing conversations, watching television, and speaking on the phone. His speech discrimination abilities were specifically measured by VA audiological examinations and this functional impairment has thus been considered as part of the assigned evaluations. Martinak, 21 Vet. App. 455. Of note, the Veteran's two most recent examiners noted that his puretone testing results were valid for rating purposes, and the use of speech discrimination scores appropriate for this Veteran; the earlier two examiners did not explicitly indicate that the testing results were unreliable to any extent. Initially, the Board observes that the Veteran has had a hearing loss in both ears by VA definition throughout the appeal period. 38 C.F.R. § 3.385. The fact that he was prescribed hearing aids confirms his difficulties hearing on a daily basis. However, applying the criteria set forth above to his audiometric results confirms that the RO performed these calculations correctly. According to the test results reported above, the Veteran's hearing acuity decreased measurably during the appeal period. The staged ratings assigned by the RO reflects the decrease. 38 C.F.R. § 4.85, Table VI, Table VIA, and Table VII. Lastly, the Veteran does not have an exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 (a). The Court has clarified that the provisions of 38 C.F.R. §§ 4.85 and 4.86 contemplate, and thus compensate for, the functional effects of hearing loss, namely difficulty understanding speech and the inability to hear sounds in various contexts. Doucette v. Shulkin, 28 Vet. App. 366 (2017). In other words, the Veteran's complaints regarding his hearing loss are fully encompassed by the schedular disability ratings provided in 38 C.F.R. §§ 4.85, 4.86 (a) which are the applicable regulations in this instance. As observed above, this exercise is a mechanical one, with no interpretative leeway. Lendenmann v. Principi, 3 Vet. App. 345 (1992). Although the Board sympathizes with the Veteran's frustration at his decreased hearing acuity, the Board is constrained to follow the law and regulations as they are written and to apply them equally to all similarly situated Veterans. As set forth herein, the preponderance of the evidence is against the claim such that the benefit-of-the-doubt rule is not applicable, and the appeal is hereby denied. The Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board's consideration. See Doucette, 28 Vet. App. at 369-370 (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). Kate E. Kovarovic Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Patrick C. Brady, Attorney Advisor 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.