Citation Nr: 21042430 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 18-43 815 DATE: July 13, 2021 ORDER Entitlement to an initial compensable rating prior to April 3, 2019 for service-connected bilateral hearing loss is denied. Entitlement to an evaluation of 20 percent beginning April 3, 2019 for service-connected bilateral hearing loss is granted. FINDINGS OF FACT 1. Prior to April 3, 2019, the Veteran's bilateral hearing loss manifested by hearing acuity no worse than Level I bilaterally, and speech recognition ability not worse than 94 percent bilaterally. 2. The evidence is at least in equipoise that since April 3, 2019, the Veteran's right ear hearing loss manifested by hearing acuity no worse than Level IV, with the left ear at Level VI. CONCLUSIONS OF LAW 1. Prior to April 3, 2019, criteria for a compensable rating for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.7, 4.85, 4.86, Diagnostic Code (DC) 6100. 2. Since April 3, 2019, the criteria for a 20 percent rating for bilateral hearing loss have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.7, 4.85, 4.86, DC 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1955 to January 1960. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a January 2021 virtual Board hearing before the undersigned Veterans Law Judge (VLJ) and a transcript of the hearing is associated with the electronic claims file. By way of history, in February 2021, the Board remanded the matter for missing medical records and a new VA examination. Most of the outstanding records were obtained and an adequate VA examination was conducted, but some records were noted to still be missing. As such, in May 2021, the Board again remanded the claim for the RO to obtain and associate the April 2019 CHOICE audiology examination results. The Veteran has not raised any issues with the duty to notify or duty to assist in obtaining documentary evidence. Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Thus, the Board need not discuss any potential issues in this regard. Further, neither the Veteran nor his representative has alleged any deficiency with the conduct of the Board hearing as to the duties discussed in Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010). Ratings for service-connected bilateral hearing loss range from noncompensable (0 percent) to 100 percent. These ratings 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 as measured by pure tone audiometry tests in the frequencies of 1000, 2000, 3000 and 4000 cycles per second. In evaluating service-connected bilateral hearing loss, disability ratings are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are performed. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992); 38 C.F.R. § 4.85. Diagnostic code (DC) 6100 provides a table for rating purposes (Table VI) to determine a Roman numeral designation (I through XI) for hearing impairment. The hearing impairment is established by a state licensed audiologist using a controlled speech discrimination test and the pure tone threshold average (which is the sum of the pure tone thresholds at 1000, 2000, 3000, and 4000 Hertz, divided by four). See 38 C.F.R. § 4.85. Table VII is used to determine the percentage rating by combining the Roman numeral designations for hearing impairment of each ear. The horizontal row represents the ear having the poorer hearing and the vertical column represents the ear having the better hearing. Id. Under 38 C.F.R. § 4.86(a), when the pure tone 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 is to be evaluated separately. See 38 C.F.R. § 4.86(a). The provisions of 38 C.F.R. § 4.86(b) provide that when the pure tone 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 evaluated to the next higher Roman numeral. See 38 C.F.R. § 4.86(b). Table VIA is also utilized when the audiologist certifies that the use of the speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc. See 38 C.F.R. § 4.85(c). First, by way of history, the Veteran was granted service connection for bilateral hearing loss in a July 2017 rating decision, with a noncompensable rating, effective October 31, 2014. The Veteran timely appealed the rating decision, and in the 2021 Board remand, the Board requested an updated VA examination be scheduled to ascertain the nature and severity of the hearing loss. Thereafter, in the March 2021 rating decision subsequent to the Board remand, the Veteran's bilateral hearing loss was increased to 10 percent disabling, effective March 5, 2021. Finally, in the March 2021 rating decision, the bilateral hearing loss evaluation of 10 percent was granted an effective date of April 3, 2019. Per the RO, on April 3, 2019, the Veteran reported "difficulty hearing" and the Chief of Audiology and Speech Pathology submitted a request for a CHOICE consult; as such, this is the date medical records document worsening symptoms. The Veteran seeks a compensable disability rating for his service-connected bilateral hearing loss disability prior to April 3, 2019, and in excess of 10 percent thereafter. Next, for clarity, the Board acknowledges the CHOICE consult examination was determined by the RO to not be adequate for rating purposes, and that Dr. R.M. thought the Veteran's hearing may be better than the testing obtained during the examination. However, the Court has held that interpretation of a graphical audiogram is a finding of fact, to be made by the Board in the first instance. Kelly v. Brown, 7 Vet. App. 471 (1995). If the Board is unable to interpret the graphical audiogram due to unclear results or several possible interpretations, then the Board must remand the results for translation by an appropriate specialist. Savage v. Shinseki, 24 Vet. App. 259, 270 (2011); see Kelly, 7 Vet. App. at 471 ; see e.g., Ponder v. Shinseki, No. 09-0881, 2010 WL 4241571, 2 (Oct. 28, 2010) (nonprecedential) (noting that Board's failure to make factual findings by interpreting the audiograph resulted in the Board overlooking relevant audiometric data and was remandable error). Although the RO found against consideration of the April 2019 CHOICE audiometric examination findings, based on the results of the audiometric evaluation compared with the VA examinations and medical records, the Board, under Kelly, interpreted the audiograms as a finding of fact and considered the evidence as relevant audiometric data. Ponder, supra. As such, based on a review of the evidence, and in giving the benefit of the doubt in favor of the Veteran, the Board finds that beginning April 3, 2019, but no earlier, the Veteran's bilateral hearing loss is evaluated as 20 percent, but no higher. A noncompensable rating prior to April 3, 2019 is continued. Prior to April 2019 For the period prior to April 3, 2019, in conjunction with the Veteran's claim, he was scheduled for a VA audiology examination in June 2015. Per the June 2015 examiner, the audiometric scores were inconsistent or not reliable. The examiner also noted the Veteran had normal bilateral acoustic immittance, abnormal bilateral ipsilateral acoustic reflexes and contralateral acoustic reflexes. As such, in the June 2015 rating decision, it was determined that there were no reliable audiometric findings available, and the evidence available did not show the Veteran had disabling hearing for VA purposes. However, the Veteran argued that the examiner only spent 10 minutes with him and hurried out of the office and requested a new examination with a different examiner. See July 2015 notice of disagreement. He was then scheduled for a new examination in July 2017. In the July 2017 examination, the evaluation documented puretone threshold findings in the right ear of 40 decibels at 1,000 Hertz, 50 decibels at 2,000 Hertz, 55 decibels at 3,000 Hertz, and 60 decibels at 4,000 Hertz. For the left ear, the puretone threshold findings showed 50 decibels at 1,000 Hertz, 55 decibels at 2,000 Hertz, 55 decibels at 3,000 Hertz, and 65 decibels at 4,000 Hertz. The Maryland CNC speech recognition scores was 94 percent in both ears. The average for the right ear is 51 and the average for the left ear is 56. Puretone threshold average of 51 with a 94 percent speech recognition score yields level I impairment for the right ear under Table VI. A puretone threshold average of 56 with a 94 percent speech recognition score yields level I impairment for the left ear under Table VI. Applying the results to Table VII, the outcome is a noncompensable rating. In the July 2017 rating decision, based on the July 2017 examination, the Veteran was granted service connection for tinnitus with a 10 percent rating, and for bilateral hearing loss with a noncompensable rating. The Veteran timely filed a notice of disagreement in November 2017 as to the rating for his bilateral hearing loss, requesting another examination. In support of his claim, he submitted a statement that his hearing loss is severe and causes limitations in his everyday living, and he must wear hearing aids due to the severity. In January 2018, the Veteran submitted another statement that his "hearing continues to increase in severity and [he has a] need for hearing aids." He requested a decision review officer (DRO) hearing, and during the May 2018 DRO hearing, the summary of discussion stated that the Veteran reported difficulties with the examinations and examiners as his hearing has gotten worse and he knows it is worse than what the examinations are showing "because the examiner is telling him what to hear and how to hear it." The Veteran also had audiometric assessments in January 2015, August 2017, and October 2017 at the VAMC. In January 2015, it was indicated that the Veteran had normal hearing through 2000 Hertz with mild to moderate high frequency sensorineural hearing loss in both ears. Further, in October 2015, the examiner noted that his speech awareness thresholds and word recognition scores suggested his hearing had not changed since the January 2015 evaluation. In August 2017, the Veteran reported worsened hearing and that he had a hard time hearing when around noise and when on the telephone. It was noted that the Veteran had low to mid frequency range to a high frequency hearing loss in the left ear; but the examiner noted the results were inconsistent with the July 2017 VA examination findings. He was advised to return in a few months. In October 2017, he underwent another audiometric assessment, with the right ear showing mild sensitivity hearing loss at higher frequencies, otherwise normal hearing. The left ear had normal hearing at lower frequencies, with mild sensorineural hearing loss at higher frequencies. Therefore, the Veteran was scheduled for another examination. In the June 2018 VA examination, the examiner noted that he could not test puretones because the Veteran provided responses to pure tones much poorer than his responses to spondees (spondees were elevated to indicate a mild loss. He provided half word responses to spondees. Even after several re-instructions, he would not provide accurate responses to pure tones.). The examiner also noted that he could not test speech discrimination, and noted the Veteran had normal bilateral acoustic immittance, ipsilateral acoustic reflexes, and contralateral acoustic reflexes. The report also considered the October 2017 audiological assessment from the VAMC, which noted the right ear had mild sensitivity loss to normal hearing, and the left ear had normal hearing through 2000 Hertz, with mild sensorineural hearing loss at higher Hertz. However, while the 2018 examiner opined the Veteran's hearing was normal, the overall evidence indicates that the Veteran did have at least some hearing loss in both ears. As such, despite the differences in the audiometric evaluations, the preponderance of the evidence is, regardless, against a compensable evaluation for a bilateral hearing loss disability prior to April 3, 2019, as it did not more nearly reflect the criteria for a higher evaluation. See 38 C.F.R. § 4.7. To the extent that the Veteran reports that his hearing acuity is worse than evaluated during this period, the Board has again considered his statements and they are competent and granted him the benefit of the doubt as discussed above due to his credible and competent reports of worsening hearing loss. However, far more probative of the degree of the disability are the results of testing prepared by a skilled professional since the schedular criteria are predicated on audiological findings rather than subjective reports of severity of hearing loss. Lendenmann, 3 Vet. App. 345. Based on the evidence, the Board finds that a compensable rating for the bilateral hearing loss was not warranted prior to April 3, 2019. In reaching this finding, the Board notes the subsequent objective medical findings of the 2019 audiological evaluation as detailed below. The Board acknowledges that from a practical standpoint it is highly unlikely that the Veteran's hearing loss increased in severity on the specific day of the April 2019 evaluation. However, there is no objective medical evidence of hearing impairment consistent with a compensable evaluation for the period prior to April 3, 2019. Further, the Veteran's disability must be rated on objective findings demonstrated during audiological examinations. Hearing loss involves a mechanical application of the Rating Schedule to numeric designations assigned to audiology testing results that meet regulatory requirements. The fact that hearing acuity is less than optimal does not, by itself, establish entitlement to a higher rating. A higher rating can only be awarded when loss of hearing has reached a specified measurable level. As such, the Board finds that the preponderance of the evidence is against a finding that the criteria for a compensable rating were met for bilateral hearing loss prior to April 3, 2019. Since April 2019 As noted above, on April 3, 2019, the Veteran reported "difficulty hearing" and the Chief of Audiology and Speech Pathology submitted a request for a CHOICE consult. This is the date the RO determined it was factually ascertainable that the Veteran's hearing loss had objectively worsened for a higher rating. The CHOICE audiometric evaluation occurred later that month in April 2019. While the RO stated the results could not be used for rating purposes, and the Maryland CNC speech recognition test was not used, this does not totally negate the probative value of this evidence, since the audiometric results showed findings of exceptional hearing loss and his hearing impairment can be evaluated using Table VIa. Further, the results of the evaluation are clear, so the Board has proceeded with an effort to make a reasonable interpretation of the lay-readable audiometric results. Ponder v. Shinseki, No. 09-0881, 2010 WL 4241571, at 3 (Vet. App. Oct. 28, 2010) (unpublished single-judge disposition) (noting that in Kelly, 7 Vet. App. 471, the Court determined that it could not interpret the results of an audiograph because interpretation required a factual finding, which was not the role of the Court in the first instance; the Board, however, was empowered to make factual findings in the first instance. Additionally, the Board's failure to make factual findings by interpreting the audiograph resulted in the Board overlooking relevant audiometric data and was remandable error); see also Bethea v. Derwinski, 2 Vet. App. 252, 254 (1992) (a non-precedential decision may be cited for any persuasiveness or reasoning it contains). To that end, for the right ear, the Board interprets the evaluation as showing 65 decibels at 1,000 Hertz, 70 decibels at 2,000 Hertz, 65 decibels at 3,000 Hertz, and 60 decibels at 4,000 Hertz. For the left ear, the Board interprets the evaluation as showing 65 decibels at 1,000 Hertz, 70 decibels at 2,000 Hertz, 70 decibels at 3,000 Hertz, and 75 decibels at 4,000 Hertz. The puretone threshold averages were 65 for the right ear and 70 for the left ear. As noted, the speech recognition testing was not done using Maryland CNC which is necessary for rating purposes. Regardless, as the puretone results showed exceptional hearing loss, and in giving the benefit of the doubt in favor of the Veteran; based on the above results utilizing Table VIa, the findings show level V hearing impairment in the right ear and level VI in the left ear. See 38 C.F.R. § 4.86(a). Thus, applying the results to Table VII, a 20 percent rating beginning April 3, 2019 is warranted for bilateral hearing loss based on the April 2019 audiogram examination. See 38 C.F.R. § 4.85, DC 6100. The Board acknowledges that the date it became factually ascertainable of worsened hearing loss is the date of the August 29, 2019 evaluation, not April 3, 2019; however, the RO determined that the earlier effective date of April 3, 2019 is warranted based on the reports of worsening and is the date when the Chief of Audiology and Speech Pathology requested the CHOICE consult due to worsened hearing loss. Further, the Board is bound by favorable findings by the RO. See 38 C.F.R. § 3.104(c) (favorable findings made by an adjudicator during the claims process are binding on all subsequent adjudicators). Thereafter, in the January 2021 Board hearing, the Veteran provided sworn testimony as to his worsened hearing loss and discussed the unreliable VA examinations from 2015 and 2018. He again argued that the examiners were rude and marked "could not test" and that he had normal hearing because they told him he should be able to hear what he stated he was not able to hear. Further, he testified that his hearing loss has worsened to the point that he needs to wear headphones or turn on his Bluetooth in order to hear on the telephone, he has trouble hearing the television at a normal volume, and has trouble in conversations, though he attempts to read lips as people speak. Finally, he stated that following audiometric evaluations at VAMC, he was issued hearing aids a few years ago due to the worsened hearing loss despite the 2018 VA examination findings. During the Board Hearing, the parties agreed that the Veteran should be provided an opportunity to report for a VA examination to ascertain the current severity and manifestations of his bilateral hearing loss. As such, following the February 2021 Board remand, a hearing loss and tinnitus disability benefits questionnaire was obtained in March 2021. That evaluation documented puretone threshold findings in the right ear of 50 decibels at 1,000 Hertz, 55 decibels at 2,000 Hertz, 55 decibels at 3,000 Hertz, and 55 decibels at 4,000 Hertz. For the left ear, the Board interprets the graph as showing 50 decibels at 1,000 Hertz, 55 decibels at 2,000 Hertz, 60 decibels at 3,000 Hertz, and 60 decibels at 4,000 Hertz. The Maryland CNC speech recognition scores was 76 percent in the right ear and 72 percent in the left ear. The average for the right ear is 55 and the average for the left ear is 58. Puretone threshold average of 55 with a 76 percent speech recognition score yields level IV impairment for the right ear under Table VI. A puretone threshold average of 58 with a 72 percent speech recognition score yields level V impairment for the left ear under Table VI. Applying the results to Table VII would result in a 10 percent rating. The Board notes that the Veteran was issued hearing aids in November 2017, which coincides with his testimony that his hearing had worsened, despite the earlier VA examination findings. Regardless of those findings, the 2021 audiology examination coincides with the 2019 CHOICE audiometric evaluation of worsening hearing loss wherein both evaluations showed the Veteran's hearing loss had indeed worsened. While the 2019 CHOICE examination findings show worsened hearing compared to the 2021 VA examination findings, and Dr. R.M. stated that "results may be better than the testing indicates today", the Board finds that this statement is not persuasive. Bloom v. West, 12 Vet. App. 185, 186-87 (1999) (("By using the term ['may'] without supporting clinical data or other rationale, [the expert's] opinion simply is speculative.). Although Dr. R.M. stated her reasoning was that two years ago the Veteran's hearing was much better, this statement effectively coincides with the Veteran's consistent reports that his hearing had worsened over the past few years to the point of needing hearing aids. In addition, although the RO did not consider the findings of the 2019 report, the Board finds that the evidence is at least in relative equipoise as to worsened hearing loss, and as such will give benefit of the doubt in favor of the Veteran in granting a 20 percent rating, but no higher, beginning April 3, 2019, but no earlier. The Board also considered the Veteran's symptomology and functional impact. The Veteran's complaints of hearing difficulty have been considered under the numerical criteria set forth in the rating schedule. In short, the rating criteria reasonably describe the Veteran's disability levels and symptomatology. The Board in no way discounts the difficulties that the Veteran experiences because of his hearing loss. The Veteran is competent to testify to facts or circumstances that can be observed and described by a lay person. See 38 C.F.R. § 3.159 (a)(2). However, it must be emphasized, as previously noted, that the disability ratings for hearing impairment are derived by a mechanical application of the rating schedule to numeric designation assigned after audiometry results are obtained. Hence, the Board must base its determination on the results of the pertinent audiological evaluations of record. Lendenmann, 3 Vet. App. 345. In other words, the Board is bound by law to apply VA's rating schedule based on the Veteran's audiometry results. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Further, the functional impact that the Veteran describes, is contemplated by the rating criteria. Doucette v. Shulkin, 28 Vet. App. 366 (2017) (holding that the rating criteria for §§ 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.). While leaving open the possibility that extraschedular consideration for hearing loss might be warranted by other symptoms or functional effects associated with that disability, Doucette further held that extraschedular referral is not reasonably raised when complaints of difficulty hearing are the only complaints of record, which is the case here. Further, the Veteran's main complaint is reduced hearing acuity and clarity, which is what is contemplated in the rating assigned. Rossy v. Shulkin, 29 Vet. App. 142 (2017). Finally, to any extent that the Veteran argues his service-connected tinnitus exacerbates his hearing loss, the Board notes that the Veteran is separately compensated for the symptomatology that he experiences from his tinnitus, and is in receipt of a compensable disability rating for his tinnitus symptoms. Further consideration of the symptomatology of the Veteran's tinnitus under a disability evaluation for his service-connected bilateral hearing loss would constitute pyramiding and is not permitted. See 38 C.F.R. § 4.14. Accordingly, in giving the Veteran the benefit of the doubt, he is granted a 20 percent evaluation, but no higher, for bilateral hearing loss since April 3, 2019, the date the CHOICE audiometric evaluation was ordered for worsened hearing loss, as that date is when the Veteran's worsened hearing loss became factually ascertainable. The claim is granted to that extent only. MICHELLE L. KANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G.Hoy, 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.