Citation Nr: 21041677 Decision Date: 07/09/21 Archive Date: 07/09/21 DOCKET NO. 17-05 021A DATE: July 9, 2021 ORDER Entitlement to an initial evaluation in excess of 10 percent for hearing loss prior to October 31, 2016, is denied. FINDINGS OF FACT Prior to October 31, 2016, the Veteran's bilateral hearing loss was manifested by no worse than Level I hearing loss in both the right and left ears. CONCLUSIONS OF LAW The criteria for a compensable rating for bilateral hearing loss prior to October 31, 2016 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85 Diagnostic Code 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the United States Air Force from January 1989 to August 2011. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2013 rating decision by a Regional Office (RO) of the United States Department of Veterans Affairs (VA), which granted service connection fort bilateral hearing loss, effective September 1, 2011. A 0 percent rating was assigned, which the Veteran appealed. In January 2017, the RO granted an increased, 10 percent rating for bilateral hearing loss, effective October 31, 2016. A statement of the case was also issued addressing the claims for increased evaluation for both stages, before and after October 31, 2016. In timely perfecting the appeal in January 2017, the Veteran expressly limited the appeal to the period for which he was awarded a noncompensable evaluation, prior to October 31, 2016. He confirmed this intent in August 2017, indicating he was satisfied with the 10 percent evaluation, but wished it to be effective from the date of service connection. An August 2020 supplemental statement of the case (SSOC) incorrectly indicated that both stages of evaluation remained on appeal. However, the Veteran has expressed his satisfaction with the 10 percent rating, and hence there remains no question or controversy with regard to the evaluation since October 31, 2016. AB v. Brown, 6 Vet. App. 35 (1993). The issue on appeal has been characterized accordingly. Duty to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). These duties have been satisfied in this case. Appropriate notice was provided in July 2012. The RO associated the Veteran's service and VA and private outpatient treatment records with the claims file. All released or submitted private treatment records have been associated with the claims file. No other relevant records have been identified and are outstanding. The Veteran has argued that his August 2012 VA hearing loss examination did not fully represent his hearing loss. However, this examination is found to be adequate for evaluation, as it includes needed findings to permit application of the rating schedule and identification of current disability. The Board notes that the Veteran has also argued that this same examination, conducted in Abilene, Texas, was not considered and should be, as it does reflect the status of his hearing loss. As such, VA has satisfied its duty to assist with the procurement of relevant records. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). Increased Rating Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 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 the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1 (2018); Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. 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. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). If the evidence for and against a claim is in equipoise, the claim will be granted. 38 C.F.R. § 4.3. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating 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. 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 speech discrimination test (Maryland CNC) 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). To evaluate the degree of disability, the rating schedule establishes eleven 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, VIa and VII, Diagnostic Code 6100. Disability ratings for hearing loss are derived from a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing. Lendenmann v. Principi, 3 Vet. App. 345 (1992). Hearing tests will be conducted without hearing aids, and the results of above-described testing are charted on Table VI and Table VII. See 38 C.F.R. § 4.85. In addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in his or her final report. Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007); 38 C.F.R. § 4.85. In August 2012, the Veteran was afforded a VA audiology examination, showing: Hertz 1000 2000 3000 4000 Avg RIGHT 10 35 40 50 33.75 LEFT 10 60 60 60 47.5 Word recognition testing, using the Maryland CNC test, produced results of 92 percent in the left ear and 94 percent in the right ear. Both right and left ears warrant a Level I under Table VI, and the intersection of the two levels warrants a noncompensable evaluation under Table VII. During the examination, the Veteran reported that he has trouble hearing women's and children's voices. The examiner noted that the Veteran's hearing loss would have significant effects on the Veteran's occupation, noting "hearing difficulty" as impacting occupational activities. When a claimant's hearing loss results in an inability to hear or understand speech or to hear other sounds in various contexts, those effects are contemplated by the schedular rating criteria. Doucette v. Shulkin, 28 Vet. App. 366 (2017). The Veteran has raised several arguments regarding his testing results. In a September 2013 statement from the Veteran, he contended that the August 2012 test did not fully represent his hearing loss, particularly in comparison to hearing examinations that were completed while he was in-service. He identified two specific in-service examinations, completed in January 2006 and March 2010 respectively. However, not only were these examinations completed more than a year prior to the date of initial service connection, and therefore are not relevant to the current period on appeal, neither examination appears to have used the Maryland CNC word list for speech recognition testing. Accordingly, they are not adequate for evaluation. 38 C.F.R. § 4.85(a). In another statement associated with the record in June 2015, the Veteran referred to a private audiological evaluation completed in September 2013, which he believed to be a more accurate representation of his hearing loss than the August 2012 examination. This evaluation is included in the Veteran's record, showing a completed audiogram as well as the Veteran's report that he has difficulty hearing the television and other people's voices when he is on the telephone. However, like the previously identified evaluations, this test does not use the Maryland CNC word list for speech recognition testing and is, therefore, inadequate for evaluation. 38 C.F.R. § 4.85(a). The Veteran further reported in the June 2015 statement that he has current symptoms associated with his hearing loss, including the need to constantly ask people to repeat what they are saying. He also reported that he was previously denied cross-training in Air Traffic Control while in the military in 2000 due to his hearing and believed that his hearing had gotten worse since then. The Veteran's service treatment records confirm that he had a profile indicating hearing loss, a corresponding audiogram, and notation that he was not found qualified for Air Traffic Control. While this information further confirms that the Veteran has had a diagnosis of hearing loss since his time in the military, it cannot be used to assess the current severity of his condition roughly eleven years later. The Board notes that an audiogram evaluation was completed by the VA in February 2011, several months prior to the Veteran's discharge from service. The results of this examination could potentially be considered in identifying the current evaluation of the Veteran's hearing loss, as they were completed within a year of the date that the Veteran was awarded service connection. While these results show hearing loss for VA purposes, and are the basis of the grant for service connection, they are not associated with corresponding speech testing and are therefore inadequate for purposes of assessing the current level of hearing impairment. In the Veteran's VA Form 9, he indicated that there are several tones which he cannot hear at all. However, while the Veteran's hearing loss was described as moderately severe bilaterally in August 2012, objective testing has not shown complete lack of hearing at any of the Hertz testing levels. He further expressed concerns that his noncompensable evaluation was provided based solely on audiological records, arguing that he has submitted more than just audiologic records in support of his claim. The Board notes that the criteria for a compensable evaluation for hearing loss is predominately based upon the audiological results obtained through the puretone threshold testing and Maryland CNC word list results. However, the Veteran's subjective reports of hearing difficulty are contemplated within the schedular criteria and have also been identified and considered here. The Veteran was afforded another VA hearing loss examination in October 2016, upon which the 10 percent evaluation was awarded. However, prior to this date, the evidence does not indicate that a compensable evaluation is warranted. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S.P. Faris 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.