Citation Nr: 21041528 Decision Date: 07/09/21 Archive Date: 07/09/21 DOCKET NO. 16-58 887 DATE: July 9, 2021 ORDER Entitlement to a compensable disability rating for bilateral hearing loss prior to October 12, 2016 is denied. Entitlement to a disability rating higher than 10 percent for bilateral hearing loss since October 12, 2016 is denied. FINDINGS OF FACT 1. From to October 12, 2016, bilateral hearing loss was no worse than Level II in the right ear and Level II in the left ear. 2. Since October 12, 2016, bilateral hearing loss is no worse than Level VI in the right ear and Level II in the left ear. CONCLUSIONS OF LAW 1. The criteria for a compensable disability rating for bilateral hearing loss prior to October 12, 2016 have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100. 2. The criteria for a disability rating higher than 10 percent for bilateral hearing loss since October 12, 2016 have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the U.S. Navy from July 1967 to January 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision by a United States Department of Veterans Affairs (VA) Regional Office (RO). This matter was remanded for further development in March 2020. At that time, the Board also remanded the issue of entitlement to individual unemployability (TDIU) due to service-connected disability. In October 2020, however, the Veteran was granted TDIU effective June 14, 2014, which covers the entire period on appeal. As the benefit sought on appeal has been granted in full for that particular issue, and the Veteran has not expressed disagreement with the effective date assigned, this issue is no longer before the Board. The Veteran appeals the denial of a compensable rating for his bilateral hearing loss disability prior to October 12, 2016 and a rating higher than 10 percent thereafter. Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his 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 rating will be assigned. 38 C.F.R. § 4.7. Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibits symptoms that would warrant different evaluations during the course of the appeal, the assignment of staged ratings is appropriate. See Fenderson v. West, 12 Vet. App. 119, 126-127 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007); Francisco v. Brown, 7 Vet. App. 55, 58 (1994); see also 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 ascertained). The assignment of disability ratings for hearing impairment is derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345 (1992). The severity of a hearing loss disability is determined by applying the criteria set forth at 38 C.F.R. § 4.85. Under these criteria, evaluations of bilateral hearing loss 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 puretone hearing threshold level, as measured by puretone audiometry tests in the frequencies 1,000, 2,000, 3,000, and 4,000 Hertz, or cycles per second, divided by four. This average is used in all cases to determine the Roman numeral designation for hearing impairment from Table VI or VIa. 38 C.F.R. § 4.85(a), (d). Table VI, "Numeric Designation of Hearing Impairment Based on Puretone Threshold Average and Speech Discrimination," is used to determine a Roman numeral designation (I through XI) for hearing impairment based on a combination of the percent of speech discrimination (horizontal rows) and the puretone threshold average (vertical columns). The Roman numeral designation is located at the point where the percentage of speech discrimination and puretone threshold average intersect. 38 C.F.R. § 4.85(b). Table VII, "Percentage Evaluations for Hearing Impairment," is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment of each ear. The horizontal rows represent the ear having the better hearing, while the vertical columns represent the ear having the poorer hearing. The percentage evaluation is located at the point where the row and column intersect. 38 C.F.R. § 4.85(e). In addition, 38 C.F.R. § 4.86 applies to exceptional patterns of hearing impairment. Under its provisions, when the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 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. 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 numeral. 38 C.F.R. § 4.86. Initially, the Board notes that the Veteran has submitted private audiological examinations that were conducted in July 2014 and October 2016. While speech discrimination scores were recorded during these examinations, it is unclear whether the Maryland CNC word list was used in such testing. In the case of Savage v. Shinseki, it was held that when an appellant submits a private audiological examination that is unclear or insufficient in some way, VA should seek clarification from the examiner or explain why such clarification is not needed. While unclear whether the speech discrimination scores recorded from the July 2014 and October 2016 private audiological examinations represent findings using the Maryland CNC test, the Board notes that even assuming such is the case, neither private examination includes puretone threshold measurements for both ears at 3000 Hz. As determining the "puretone threshold average" under 38 C.F.R. §4.85(c) requires averaging the puretone thresholds at 1000, 2000, 30000, and 4000 Hz, the private audio examination records are inadequate. Inasmuch as remand for confirmation of whether the private examination utilized the Maryland CNC word list would not benefit the Veteran in supporting his claim for a higher disability rating for bilateral hearing loss, it is unwarranted. The August 2015 VA audiological evaluation revealed an average right ear puretone decibel loss of 61.25 with speech recognition of 94 percent. This corresponds to a numeric designation of Level II hearing in the right ear. 38 C.F.R. § 4.85, Table VI. The Veteran had a left ear average puretone decibel loss of 61.25 with speech recognition of 94 percent. These findings are consistent with Level II hearing in the left ear. These combined numeric designations result in a noncompensable rating under Diagnostic Code 6100. 38 C.F.R. § 4.85, Table VII. The above findings are against a compensable rating for bilateral hearing loss from June 18, 2015 to October 11, 2016. The October 2020 VA audiological evaluation revealed an average right ear puretone decibel loss of 70 with speech recognition of 92 percent. This corresponds to a numeric designation of Level II hearing in the right ear. 38 C.F.R. § 4.87, Table VI. The Veteran had a left ear average puretone decibel loss of 68.75 with speech recognition of 92 percent. These findings are consistent with Level II hearing in the left ear. The Board notes, however, that the October 2020 VA examination shows that the Veteran has an exceptional pattern of hearing as defined by 38 C.F.R. § 4.86 given that the results of audiology testing shows right ear puretone thresholds at all four of the specific frequencies of 55 decibels or more. Therefore, an exceptional pattern of hearing is shown in that ear (see 38 C.F.R. § 4.86) and his right ear is ratable under Table VI or Table VIA, whichever is to his advantage. Under Table VIA, the findings reflect Level VI hearing for the right ear. Under 38 C.F.R. § 4.85, Table VII, such hearing acuity warrants a 10 percent rating under DC 6100. As shown above, the VA audiometric examinations do not support a compensable rating for the Veteran's bilateral hearing loss disability from June 18, 2015 to October 12, 2016 and/or a rating higher than 10 percent thereafter. The Board notes that the Veteran's assertions that his hearing has deteriorated are credible. In determining the actual degree of disability, however, the examination findings are more probative of the degree of impairment. Moreover, as laid out above, the Court has noted that the assignment of disability ratings for hearing impairment is derived at by a mechanical application of the numeric designations assigned after audiometric evaluations are rendered. Lendenmann, supra. In this case, the numeric designations produce no more than a noncompensable rating from June 18, 2015 to October 12, 2016 and a rating of 10 percent thereafter. 38 C.F.R. Part 4 Diagnostic Code 6100. Accordingly, the noncompensable evaluation prior to October 12, 2016 and rating of 10 percent thereafter accurately reflects the degree of the appellant's service-connected hearing impairment. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. Part 4, § 4.85, Diagnostic Code 6100. With regard to functional impairment, the Veteran reports he is unable to easily hear people talking to him, he has to ask people to speak up, ask for repeats, and he needs to increase the volume on the television and radio. His speech discrimination abilities, however, were specifically measured by VA audiological examinations and this functional impairment has thus been taken into account as part of the currently assigned evaluation. Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). Specifically, such criteria contemplate the difficulty the Veteran had hearing in all situations. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (holding that the rating criteria for hearing loss contemplate the functional effects of difficulty hearing and understanding speech). In considering the evidence of record, the Board finds that an award in excess of the noncompensable disability rating for bilateral hearing loss prior to October 12, 2016 and 10 percent thereafter, is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable in the instant appeal. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1991). A. SOLOMON Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T.S. Willie 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.