Citation Nr: 22010576 Decision Date: 02/24/22 Archive Date: 02/24/22 DOCKET NO. 16-46 100 DATE: February 24, 2022 ORDER Entitlement to a compensable disability rating prior to March 6, 2018 for bilateral hearing loss is denied. Entitlement to a disability rating in excess of 20 percent from March 6, 2018 for bilateral hearing loss is denied. FINDINGS OF FACT 1. For the period prior to March 6, 2018, the probative evidence of record demonstrates that the Veteran had, at worst, Level III hearing in the right ear and Level II hearing in the left ear. 2. For the period from March 6, 2018, the probative evidence of record demonstrates that the Veteran had, at worst, Level VIII hearing in the right ear and Level III hearing in the left ear. CONCLUSIONS OF LAW 1. The criteria for a compensable disability rating prior to March 6, 2018 for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.655, 4.85, 4.86, Diagnostic Code (DC) 6100. 2. The criteria for a disability rating in excess of 20 percent from March 6, 2018 for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.655, 4.85, 4.86, DC 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1965 to November 1968. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an October 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a video conference hearing before the undersigned Veterans Law Judge of the Board in December 2019. A transcript of that hearing has been associated with the claims file. The Board previously remanded this appeal in August 2020 and May 2021 for additional development. Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity resulting from disability. Separate diagnostic codes identify the various disabilities. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for the higher evaluation; otherwise, the lower evaluation will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different "staged" ratings may be warranted for different time periods. Where the question for consideration is the propriety of the initial evaluation assigned after the granting of service connection, separate ratings may also be assigned for separate periods of time based on facts found, i.e., "staged" ratings. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). Bilateral hearing loss In evaluating service-connected hearing loss, disability ratings are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are performed. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Hearing loss disability evaluations range from 0 percent (noncompensable) to 100 percent based on organic impairment of hearing acuity, as measured by controlled speech discrimination tests in conjunction with the average hearing threshold, as measured by puretone audiometric tests in the frequencies 1000, 2000, 3000, and 4000 cycles per second (Hertz). The rating schedule establishes 11 auditory acuity levels, designated from Level I for essentially normal hearing acuity through Level XI for profound deafness. VA audiometric examinations are conducted using a controlled speech discrimination test together with the results of a puretone audiometry test. The vertical lines in Table VI (in 38 C.F.R. § 4.85) represent nine categories of the percentage of discrimination based on the controlled speech discrimination test. The horizontal columns in Table VI represent nine categories of decibel loss based on the puretone audiometry test. The numeric designation of impaired hearing (Levels I through XI) is determined for each ear by intersecting the vertical row appropriate for the percentage of discrimination and the horizontal column appropriate to the puretone decibel loss. The percentage evaluation is found from Table VII (in 38 C.F.R. § 4.85) by intersecting the vertical column appropriate for the numeric designation for the ear having the better hearing acuity and the horizontal row appropriate to the numeric designation for the ear having the poorer hearing acuity. For example, if the better ear has a numeric designation Level of "V" and the poorer ear has a numeric designation Level of "VII," the percentage evaluation is 30 percent. See 38 C.F.R. § 4.85. The provisions of 38 C.F.R. § 4.86(a) provide that, 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. The provisions of 38 C.F.R. § 4.86(b) provide that, 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 Roman numeral. Each ear will be evaluated separately. Prior to March 6, 2018, the Veteran did not report functional impairment at his August 2015 VA examination; however, VA outpatient treatment reports during this period reflect he was provided hearing aids. For the period, prior to March 6, 2018, the Veteran's hearing loss, at worst is represented by findings in the August 2015 VA examination. Although the RO used the March 2018 VA audiology report evaluation to award the 20 percent disability rating, effective March 6, 2018, the Board observes that the Maryland (MD) CNC word list was not used in the word/speech discrimination at that time, as required by 38 C.F.R. § 3.385, and it cannot therefore be used to evaluate the period prior to March 6, 2018. The Board also observes a March 2018 private treatment report from the same date, March 6, 2018, is of record. However, this evaluation also failed to use the MD CNC word list in the word/speech discrimination testing and cannot be used to evaluate the Veteran's disability prior to March 6. 2018. As the audiometric testing which meets VA testing requirements under 38 C.F.R. § 3.385 prior to March 6, 2018 was provided in August 2015, the level of disability demonstrated in August 2015 would reasonably reflect the Veteran's level of disability for the period prior to March 6, 2018. The results of the audiometric testing in the August 2015 VA examination are as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 45 65 105 105+ LEFT 25 40 65 80 80 Average puretone threshold was 80 Hertz (Hz) in the right ear and 66 Hz in the left ear. Speech discrimination scores using the MD CNC word recognition list revealed findings of 86 percent in the right ear and 92 percent in the left ear. Therefore, applying the findings from the August 2015 VA examination report to Table VI in 38 C.F.R. § 4.85 yields a finding of Level III hearing in the right ear and Level II hearing in the left ear. An application of the most disabling levels of hearing loss into Table VII (in 38 C.F.R. § 4.85) yields a noncompensable, 0 percent, disability rating. See 38 C.F.R. §§ 4.85, 4.86(a). Therefore, the rating criteria for the period prior to March 6, 2018 warrants no more than the noncompensable disability rating currently assigned for bilateral hearing loss. For the period from March 6, 2018, the Veteran testified at the December 2019 Board hearing that he had help from hearing aids to a point. However, he could not get part-time work as he was unable to wear hearing aids around heavy equipment. In addition, he reported that, even with hearing aids, he could hear the person next to him but was not able to understand what they were saying. The Veteran also reported functional impairment in the October 2021 VA examination as fair hearing and he had the television turned up too loud. At that time, the Veteran also reported that he had a part-time job taking crews to trains and, if the windows were down, he had to ask them to repeat themselves. The Board observes that, from March 6, 2018, the Veteran's hearing loss, at worst is represented by findings in the October 2021 VA examination. Although the October 2021 VA examination reflects the most recent audiometric findings were less disabling than those in the March 2018 VA audiology evaluation, as noted above, the MD CNC word list was not used in the word/speech discrimination testing during the March 2018 VA audiology report. The Board observes, however, that the RO awarded a 20 percent disability rating effective March 6, 2018 in a January 2021 rating decision based on the findings in the March 2018 VA audiology evaluation and this award will not be disturbed. Although a March 2018 private audiometric evaluation reflects findings similar to the March 2018 VA audiology report, this evaluation did not use MD CNC word list in the word/speech discrimination testing and cannot be used to evaluate the current disability. Likewise, a December 2019 VA audiology evaluation was also performed, but this evaluation also failed to use the MD CNC word list in the word/speech discrimination testing and cannot be used to evaluate the current disability. The results of the audiometric testing in the March 2018 VA audiology report are as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 30 50 60 100 115 LEFT 30 50 70 75 80 Average puretone threshold was 81 Hertz (Hz) in the right ear and 68 Hz in the left ear. Speech discrimination scores using the MD CNC word recognition list revealed findings of 52 percent in the right ear and 84 percent in the left ear. The results of the audiometric testing in the October 2021 VA examination are as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 45 70 100 105 LEFT 30 35 70 70 80 Average puretone threshold was 80 Hertz (Hz) in the right ear and 63.75 Hz in the left ear. Speech discrimination scores using the MD CNC word recognition list revealed findings of 94 percent in both ears. As noted above, the March 2018 puretone audiometry and speech discrimination test results do not reflect an exceptional pattern of hearing loss under 38 C.F.R. § 4.86(a) and applying these findings to Table VI in 38 C.F.R. § 4.85 yields a finding of Level VIII hearing in the right ear and Level III hearing in the left ear. An application of the most disabling levels of hearing loss into Table VII (in 38 C.F.R. § 4.85) yields a 20 percent disability rating. See 38 C.F.R. §§ 4.85, 4.86(a). Additionally, the October 2021 puretone audiometry and speech discrimination test results do not reflect an exceptional pattern of hearing loss under 38 C.F.R. § 4.86(a) and applying these findings to Table VI in 38 C.F.R. § 4.85 yields a finding of Level II hearing in the right ear and Level II hearing in the left ear. An application of the levels of hearing loss into Table VII (in 38 C.F.R. § 4.85) yields a 0 percent disability rating. See 38 C.F.R. §§ 4.85, 4.86(a). Therefore, as the most disabling levels of hearing loss for the period since March 6, 2018 yields a 20 percent disabling rating, the probative evidence of record more nearly approximates the 20 disability rating currently assigned. The Board observes that a disability rating in excess of 20 percent is not warranted from March 6, 2018. Because the law provides specific requirements in terms of puretone threshold averages and speech discrimination test results for each percentage rating, a compensable disability rating prior to March 6, 2018 is not warranted and a disability rating in excess of 20 percent is not warranted from March 6, 2018. See 38 U.S.C. § 1155; 38 C.F.R. §§ 4.7, 4.85, 4.86 Tables VI, VIa, VII, DC 6100. JENNIFER HWA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Saira Spicknall, 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.