Citation Nr: 21042051 Decision Date: 07/11/21 Archive Date: 07/11/21 DOCKET NO. 15-19 120 DATE: July 11, 2021 ORDER For the period of the claim prior to September 19, 2014, entitlement to a rating in excess of 10 percent for bilateral hearing loss is denied. From September 19, 2014, entitlement to a rating in excess of 60 percent for bilateral hearing loss is denied. FINDINGS OF FACT 1. For the period of the claim prior to September 19, 2014, the probative evidence revealed hearing impairment no worse than Level III in the right ear and Level VI in the left ear. 2. From September 19, 2014, the probative evidence revealed hearing impairment no worse than Level IX in both ears. CONCLUSIONS OF LAW 1. For the period of the claim prior to September 19, 2014, the criteria for a rating in excess of 10 percent for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100 (2020). 2. From September 19, 2014, the criteria for a rating in excess of 60 percent for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1955 to November 1974, with additional reserve service. This matter comes before the Board of Veterans' Appeals (Board) from an April 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously before the Board in December 2020 when it was remanded for further development. This appeal has been advanced on the Board's docket pursuant to 38 U.S.C. § 7107(a) (2); 38 C.F.R. § 20.900(c). 1. Entitlement to a rating in excess of 10 percent for bilateral hearing loss for the period of the claim prior to September 19, 2014 2. Entitlement to a rating in excess of 60 percent for bilateral hearing loss from September 19, 2014 Service connection for bilateral hearing loss was established in a May 2008 rating decision and assigned a 10 percent rating under 38 C.F.R. § 4.85, Diagnostic Code 6100, effective November 28, 2007. The present claim for an increased rating for bilateral hearing loss arises from an August 2011 claim for benefits, which the RO amended in January 2012 to include the issue of bilateral hearing loss. In the April 2012 rating decision that is the subject of this appeal, the RO denied a rating higher than 10 percent. In an October 2014 decision, the RO denied a rating higher than 10 percent for the period of the claim prior to September 19, 2014, and granted a 60 percent rating from September 19, 2014. Disability ratings are determined by applying the criteria set forth in the VA Schedule of Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The assignment of disability ratings for hearing impairment is derived by a mechanical application of the rating schedule to numeric designations assigned after audiometric evaluations are rendered. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Evaluations of hearing loss range from noncompensable (zero percent) to 100 percent based on organic impairment of hearing acuity as measured by the results of speech discrimination tests together with the average hearing threshold levels as measured by puretone audiometry tests in the frequencies 1000, 2000, 3000, and 4000 cycles per second (Hertz). See 38 C.F.R. § 4.85. To evaluate the degree of disability for bilateral service-connected hearing loss, the rating schedule establishes eleven (11) auditory acuity levels, designated from Level I for essentially normal acuity through Level XI for profound deafness. See 38 C.F.R. § 4.85 and Tables VI, VIA, and VII (Diagnostic Code 6100). Section 4.86 provides an alternative rating method which may be used for certain defined "exceptional patterns of hearing impairment." 38 C.F.R. § 4.86. An examination for hearing loss must be conducted by a state-licensed audiologist and must include both a controlled speech discrimination test (Maryland CNC test) and a puretone audiometry test. 38 C.F.R. § 4.859(a). Examinations must be conducted without the use of hearing aids. Section 4.85(c) indicates that Table VIA, "Numeric designation of Hearing Impairment Based Only on Puretone Threshold Average," will be used when the examiner certifies that use of the speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc., or when indicated under the provisions of 38 C.F.R. § 4.86. The Veteran asserts, in essence, that his bilateral hearing loss is more severe and disabling than is reflected in the currently-assigned ratings. See October 2015, January 2017, April 2017, October 2019, July 2020, November 2020 and June 2021 statements. Additionally, in an August 2013 statement, the Veteran requested that each ear be rated separately. The Board notes that, consistent with VA regulations, the level of hearing loss in each ear must be considered when determining the assigned rating for bilateral hearing loss. See 38 C.F.R. § 4.85. After reviewing the record, the Board finds that the probative evidence is against assigning a rating for bilateral hearing loss in excess of those currently assigned at any point during the claim period. For the period of the claim prior to September 19, 2014, the only valid audiogram for VA rating purposes in the record is the February 2012 VA examination. Audiometric testing during that examination showed puretone threshold results were (measured in decibels): HERTZ 1000 2000 3000 4000 Average RIGHT 50 45 70 75 60 LEFT 65 70 75 85 74 Word recognition scores were measured at 84 percent in the right ear and 80 percent in the left ear. Based on Table VI, the Veteran had Level III hearing loss in the right ear and Level V hearing loss in the left ear. See 38 C.F.R. § 4.85. Because the left ear exhibited an exceptional pattern of hearing loss pursuant to 38 C.F.R. § 4.86 (a), the audiology results for the left ear were also applied to Table VIA, resulting in Level VI hearing loss in the left ear, which is more favorable. Under Table VII, where hearing is at Level III in one ear and Level VI in the other ear, a 10 percent evaluation is assigned. The record also includes a February 2013 private audiological evaluation that provides audiometric test results in graph form only. As the record does not indicate if this examination meets the requirements of 38 C.F.R. § 4.85(a), the Board remanded the claim for clarification, and VA opinions were provided in December 2019 and April 2021. Both examiners concluded that the February 2013 examination was conducted without the use of hearing aids; however, the December 2019 VA audiologist concluded that the February 2013 examination did not include a controlled speech discrimination test using Maryland CNC, while the April 2021 VA examiner opined that the February 2013 examination did not specify which discrimination test was used. Both examiners stated the word discrimination testing was completed by live voice, which the December 2019 VA examiner stated is not suitable for rating purposes. Thus, the Board finds that the probative evidence indicates the February 2013 examination did not include a control speech discrimination test (Maryland CNC), thus, the examination does not meet the requirements of 38 C.F.R. § 4.85 and cannot be used for rating the Veteran's bilateral hearing loss. The record also includes additional VA and private treatment records that indicate the Veteran wears bilateral hearing aids and reported decreased hearing acuity; however, these records do not include objective test findings. See 38 C.F.R. § 4.85. Thus, for the period of the claim prior to September 19, 2014, the Board finds that the probative evidence is against assigning a rating higher than 10 percent for bilateral hearing loss. Based on the only valid audiometric testing of record (the February 2012 VA examination), the Veteran's level of hearing loss reflects no worse than Level III in the right ear and Level VI in the left ear, which the Board concludes supports a 10 percent, but not higher, rating. As such, a rating in excess of 10 percent for bilateral hearing loss is not warranted at any point during the appeal period prior to September 19, 2014, and the claim for a higher rating is denied. Turning to the period of the claim from September 19, 2014, the record includes valid audiograms for VA rating purposes during VA examinations in September 2014 and April 2021. Audiometric testing during the September 2014 VA examination shows puretone threshold results (measured in decibels) were: HERTZ 1000 2000 3000 4000 Average RIGHT 65 75 85 95 80 LEFT 70 85 95 100 88 Word recognition scores were measured at 48 percent in the right ear and 44 percent in the left ear. Based on Table VI, the Veteran had Level IX hearing loss in both ears. 38 C.F.R. § 4.85. Because both ears exhibited an exceptional pattern of hearing loss pursuant to 38 C.F.R. § 4.86(a), the audiology results for each ear were also applied to Table VIA, resulting in Level VIII hearing loss in both ears, which is less favorable. Under Table VII, where hearing impairment is at Level IX in both ears, a 60 percent rating is assigned. Audiometric testing during the April 2021 VA examination shows puretone threshold results (measured in decibels) were: HERTZ 1000 2000 3000 4000 Average RIGHT 70 75 80 90 79 LEFT 70 75 85 90 80 Word recognition scores were measured at 68 percent in the right ear and 60 percent in the left ear. Based on Table VI, the Veteran had Level VI hearing loss in the right ear and Level VII hearing loss in the left ear. See 38 C.F.R. § 4.85. Because both ears exhibited an exceptional pattern of hearing loss pursuant to 38 C.F.R. § 4.86 (a), the audiology results for each ear were also applied to Table VIA, resulting in Level VII hearing loss in both ears, which is more favorable for the right ear. Under Table VII, where hearing impairment is at Level VII in each ear, a 40 percent rating is assigned. The record includes VA and private treatment records that indicate the Veteran wears bilateral hearing aids and reported decreased hearing acuity; however, these records do not include objective test findings that fall within the requirements of VA regulations. See 38 C.F.R. § 4.85. Thus, based on the valid audiometric testing of record, the Board finds that the probative evidence is against assigning a rating higher than the current 60 percent for bilateral hearing loss at any point from September 19, 2014. Audiometric test findings during this period reflect no worse than Level IX hearing loss in both ears, as shown on testing during the September 2014 VA examination, which the Board notes is consistent with a 60 percent, but not higher, rating. Indeed, audiometric testing during the April 2021 VA examination showed audiometric test findings that support a 40 percent rating; however, as sustained improvement has not been shown, the Board will not disturb the current 60 percent rating for the period from September 19, 2014. See 38 C.F.R. § 3.344(a). As such, the Board finds that a rating in excess of 60 percent for bilateral hearing loss is not warranted at any point from September 19, 2014, and the claim for a higher rating is denied. In reaching the above conclusions, the Board has carefully reviewed and considered the Veteran's statements regarding the functional impairment of his hearing loss on his daily life. See Martinak v. Nicholson, 21 Vet. App. 447, 454-56 (2007). However, the findings on the authorized VA examinations are of greater probative value as to the severity and level of impairment of his bilateral hearing loss, and the VA examiners addressed the effects of the Veteran's hearing loss on his daily activities and occupational functioning. See Id. Moreover, the assignment of disability ratings for hearing impairment is derived from a mechanical formula based on levels of puretone threshold averages and speech discrimination. Consequently, the Board predicates its determination based on the results of the valid audiology examinations of record. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). In sum, the most probative evidence of record is against assigning a rating for bilateral hearing loss in excess of 10 percent for the period of the claim prior to September 19, 2014, and in excess of 60 percent from September 19, 2014, and the appeal for a higher rating is denied. In reaching this decision, the Board considered the applicability of the benefit of the doubt doctrine; however, as the preponderance of the evidence is against the claim, the doctrine does not apply. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). K. A. BANFIELD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. C. Birder 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.