Citation Nr: 21041958 Decision Date: 07/10/21 Archive Date: 07/10/21 DOCKET NO. 16-41 539 DATE: July 10, 2021 ORDER A 40 percent rating, but no more, for bilateral hearing loss prior to October 9, 2020, is granted. A rating in excess of 50 percent for bilateral hearing loss since October 9, 2020, is denied. FINDINGS OF FACT 1. The Veteran had active duty from September 1968 to May 1972; he has been in receipt of total disability based on individual unemployability since October 2020. 2. Prior to October 9, 2020, hearing loss was manifested by no worse than Level VII hearing acuity in the right and left ears. 3. Since October 9, 2020, hearing loss has been manifested by no worse than Level VII hearing acuity in the right ear and Level VIII hearing acuity in the left ear. CONCLUSIONS OF LAW 1. The criteria for a 40 percent rating, but no more, for bilateral hearing loss prior to October 9, 2020, have been met. 38 U.S.C. §§ 1110, 1155, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.385, 4.3, 4.7, 4.10, 4.85, 4.86, 4.87, Diagnostic Code (DC) 6100, Tables VI, VIa, VII (2020). 2. The criteria for a rating in excess of 50 percent for bilateral hearing loss since October 9, 2020, have not been met. 38 U.S.C. §§ 1110, 1155, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.385, 4.3, 4.7, 4.10, 4.85, 4.86, 4.87, DC 6100, Tables VI, VIa, VII (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In July 2019, the Veteran testified before a Veterans Law Judge (VLJ) who is no longer employed by the Board. In April 2021, he was offered an opportunity for another hearing but did not respond. As such, the claims are properly before the Board for adjudication. Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Ratings for hearing loss are based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination testing together with the average hearing threshold level, in decibels (dB) as measured by pure tone audiometric tests in frequencies 1000, 2000, 3000, and 4000 Hertz (Hz). 38 C.F.R. § 4.85, DC 6100. An examination for hearing impairment for VA purposes must include a controlled speech discrimination test (Maryland CNC). To evaluate the degree of disability from defective hearing, the rating schedule requires assignment of a Roman numeral designation, ranging from I to XI. Other than exceptional cases, VA arrives at the proper designation by mechanical application of Table VII, which determines the designation based on results of standard test parameters. Table VII is then applied to arrive at a rating based upon the respective Roman numeral designations for each ear. Exceptional patterns of hearing impairment allow for assignment of the Roman numeral designation using Table VI or an alternate table, Table VIA, whichever is more beneficial to the veteran. 38 C.F.R. § 4.86. This applies to two patterns. In both patterns each ear will be evaluated separately. The first pattern is where the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hz) is 55 dB or more. 38C.F.R. § 4.86(a). The second pattern is where the pure tone threshold is 30 decibels or less at 1000 Hz and 70 dB or more at 2000 Hz. If the second pattern exists, the Roman numeral will be elevated to the next higher numeral. Turning to the medical evidence for the first period on appeal, in a January 2013 clinical record, the clinician wrote that the average puretone threshold was 60 dB in the right ear and 45 dB in the left ear. Speech discrimination was 80 percent in the right ear and 96 percent in the left ear. Applying Table VII to the January 2013 findings results in numerical designations of Level IV in the right ear and Level I in the left ear, which equates to a noncompensable rating. Further, in a March 2013 VA examination, audiometric testing reflected the following auditory thresholds: HERTZ 500 1000 2000 3000 4000 RIGHT 20 60 65 70 70 LEFT 20 40 75 75 80 The average puretone threshold was 66 dB in the right ear and 67.5 dB in the left ear. Speech discrimination was 72 percent in the right ear and 86 percent in the left ear. Applying Table VII to the March 2013 examination findings results in numerical designations of Level VI in the right ear and Level IV in the left ear, which equates to a 20 percent rating. Further, because the Veteran's right ear pure tone threshold was 55 dB or greater at each of the four specified frequencies, it will be considered under Table VIA. Therefore, applying Table VII to the right ear exceptional hearing pattern and the left ear hearing pattern results in numerical designations of Level V in the right ear and Level III in the left ear, which equates to a 10 percent rating. In addition, in a February 2015 VA examination, audiometric testing reflected the following auditory thresholds: HERTZ 500 1000 2000 3000 4000 RIGHT 25 65 75 75 70 LEFT 20 40 75 95 95 The average puretone threshold was 71 dB in the right ear and 76 dB in the left ear. Speech discrimination was 64 percent in the right ear and 66 percent in the left ear. Applying Table VII to the March 2013 examination findings results in numerical designations of Level VII in the right and left ears, which equates to a 40 percent rating. Further, because the Veteran's right ear pure tone threshold was 55 dB or greater at each of the four specified frequencies, it will be considered under Table VIA. Therefore, applying Table VII to the right ear exceptional hearing pattern and the left ear hearing pattern results in numerical designations of Level VI in the right ear and Level VII in the left ear, which equates to a 30 percent rating. In a June 2016 VA examination, audiometric testing reflected the following auditory thresholds: HERTZ 500 1000 2000 3000 4000 RIGHT 35 0 70 75 75 LEFT 25 50 80 85 90 The average puretone threshold was 55 dB in the right ear and 76 dB in the left ear. Speech discrimination was 94 percent in the right ear and 80 percent in the left ear. Applying Table VII to the June 2016 examination findings results in numerical designations of Level I in the right ear and Level V in the left ear, which equates to a noncompensable rating. Further, because the Veteran's right ear pure tone threshold was 0 dB at 1000 Hertz and 70 dB at 2000 Hertz, it will be considered under Table VIA. Therefore, applying Table VII to the right ear exceptional hearing pattern and the left ear hearing pattern results in numerical designations of Level III in the right ear and Level V in the left ear, which equates to a 10 percent rating. Based on the above, the medical evidence supports a 40 percent rating, but no more, for bilateral hearing loss prior to October 9, 2020. In this regard, the medical evidence showed that bilateral hearing loss was manifested by no worse than Level VII hearing acuity in the right ear and left ears. Clinical records do not contradict the above findings. Therefore, the medical evidence supports a 40 percent rating, but no more, for bilateral hearing loss prior to October 9, 2020. Turning to the medical evidence for the second period on appeal, in an October 2020 VA examination, audiometric testing reflected the following auditory thresholds: HERTZ 500 1000 2000 3000 4000 RIGHT 45 75 75 80 85 LEFT 40 60 85 95 95 The average puretone threshold was 78.8 dB in the right ear and 83.8 dB in the left ear. Speech discrimination was 56 percent in the right ear and 78 percent in the left ear. Applying Table VII to the October 2020 VA examination findings results in numerical designations of Level VII in the right ear and Level V in the left ear, which equates to a 30 percent rating. Further, because the Veteran's right and left ear pure tone thresholds were 55 dB or greater at each of the four specified frequencies, they will be considered under Table VIA. Therefore, applying Table VII to the right and left ear exceptional hearing patterns results in numerical designations of Level VII in the right ear and Level VIII in the left ear, which equates to a 40 percent rating. Based on the above, the medical evidence does not support a rating in excess of 50 percent for bilateral hearing loss since October 9, 2020. In this regard, the medical evidence showed that bilateral hearing loss was manifested by no worse than Level VII hearing acuity in the right ear and Level VII hearing acuity in the left ear. Clinical records do not contradict the above findings. Therefore, the medical evidence does not support a rating in excess of 50 percent for bilateral hearing loss since October 9, 2020. 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). In this regard, the VA examiners of record noted the Veteran's subjective complaints, which included that he "could hear but did not always understand" and "could not hear background noise." Based on the above, the Board finds that no prejudice to the Veteran in that the functional effects of his hearing loss disability were adequately addressed by the examiners and are sufficient for the Board to find that referral for an extra-schedular rating is not warranted under 38 C.F.R. § 3.321(b). In granting a higher rating for the period prior to October 2020 and denying since October 2020 the Board has considered the Veteran's lay statements and testimony regarding his symptoms as well as the evidence provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. Finally, 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 v. Shulkin, 28. Vet. App. 366, 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). L. HOWELL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Ragofsky, 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.