Citation Nr: 22012853 Decision Date: 03/07/22 Archive Date: 03/07/22 DOCKET NO. 16-06 863 DATE: March 7, 2022 ORDER Entitlement to an initial rating of 20 percent, but no higher, for service-connected bilateral hearing loss from March 18, 2016, to November 4, 2019, is granted. FINDING OF FACT From March 18, 2016, to November 4, 2019, the evidence is in equipoise as to whether the Veteran had no worse than Level III hearing in the right ear and Level VII hearing in the left ear. CONCLUSION OF LAW From March 18, 2016, to November 4, 2019, the criteria for an initial rating of 20 percent, but no higher, have been met. 38U.S.C. §§1155, 5107; 38C.F.R. §§3.321(b)(1), 4.85, 4.86, Diagnostic Code (DC) 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1965 to July 1967. In April 2019, this appeal was remanded for further development. In November 2019, the Board denied the Veteran's claim for entitlement to an initial rating in excess of 10 percent for service-connected bilateral hearing loss. The Veteran appealed the denial of the claim to the United States Court of Appeals for Veterans Claims (Court). Counsel for the Veteran and the Secretary's representative for VA (the parties) filed a Joint Motion for Partial Remand (JMPR). The parties agreed that the Board's November 2019 denial of the above claim should be vacated and remanded because the Board erred when it failed to provide an adequate statement of reasons or bases. Specifically, the Board did not discuss treatment records from May and November 2017 that noted that the Veteran's hearing "decreased." Thus, the JMPR noted that, on remand, the Board must address the reports of decreased hearing in 2017 and whether a rating in excess of 10 percent is warranted prior to the date of the November 2019 VA examination. Initial Ratings Legal Principles and Regulations Evaluations of bilateral defective hearing range from non-compensable to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests 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 from bilateral service-connected defective hearing, the schedule establishes 11 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 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. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). The evaluations derived from the schedule are intended to make allowance for improvement by hearing aids. 38 C.F.R. § 4.85, Diagnostic Code 6100. The numeric designation of impaired efficiency (I through XI) will be determined for each ear by applying the appropriate table as required by 38 C.F.R. § 4.85 or § 4.86. In Table VI, the percent of discrimination resulting from the controlled speech discrimination tests, located along the vertical axis, is compared with the puretone threshold average, located along the horizontal axis. In Table VIA, only the puretone threshold average is used. The puretone threshold average is the sum of the puretone thresholds at 1000, 2000, 3000, and 4000 hertz, divided by four. 38 C.F.R. § 4.85. The numeric designations resulting from Table VI or Table VIA are then matched between the "better" ear and the "poorer" ear on Table VII to determine the Veteran's disability rating under Diagnostic Code 6100. 38 C.F.R. § 4.85. Exceptional patterns of hearing impairment are to be evaluated in accordance with the provisions of 38 C.F.R. § 4.86. That regulation states that: (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 will be evaluated separately. (b) 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. An examination for hearing impairment for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a puretone audiometry test. 38 C.F.R. § 4.85(a). Analysis By way of background, in a December 2014 rating decision, service connection for bilateral hearing loss was granted with a non-compensable rating under DC 6100 effective January 21, 2014. The Veteran timely filed a Notice of Disagreement contesting the initial rating. In an April 2016 rating decision, the Veteran's bilateral hearing loss rating was increased to 10 percent, effective March 18, 2016. Thus, because this was a partial grant, the Veteran's appeal continued. On November 4, 2019, the Veteran's rating was increased to 20 percent, based on a November 4, 2019, VA examination report. The only period subject to the current appeal before the Board is from March 18, 2016, to November 4, 2019, during which the Veteran's bilateral hearing loss was rated at 10 percent. Thus, the issue before the Board is entitlement to an initial rating in excess of 10 percent from March 18, 2016, to November 4, 2019. At the onset, the Board notes that in the October 2021 JMPR, the parties noted that in the November 2020 Board decision, the Board found that entitlement to a 20 percent rating is warranted as of November 4, 2019, the date of the November 2019 VA examination. However, the parties agreed that, in denying the Veteran's claim for entitlement to an initial rating in excess of 10 percent from March 16, 2016, to November 4, 2019, the Board erred when it did not account for medical records from May and November 2017 that noted that the Veteran's hearing "decreased." Furthermore, the parties agreed that in light of VA medical records that reflected a decrease in hearing during the period prior to November 4, 2019, it is unclear how the Board found that the November 4, 2019, date would be the appropriate effective date for a 20 percent rating. Thus, the parties agreed that the Board must consider whether the reports of decreased hearing in 2017 warrant a rating in excess of 10 percent prior to the November 2019 VA examination. Turning to the evidence of record, during a March 18, 2016, VA Hearing Loss and Tinnitus examination report, an audiogram showed puretone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 45 45 55 30 65 LEFT 45 55 55 85 95 On the Maryland CNC word list speech discrimination test, the Veteran measured 94 percent speech discrimination in his right ear and 88 percent in his left ear. The puretone threshold average for his right ear is 58 decibels and 73 decibels in his left ear. Bilateral sensorineural bilateral hearing loss was diagnosed. Applying the results of this examination to the tables provided in 38 C.F.R. § 4.85, the result reflects a finding of Level II hearing loss in the right ear. With respect to the left ear, the Board notes that the Veteran exhibited exceptional hearing loss of the left ear (Puretone threshold at 1000, 2000, 3000, and 4000, were 55 decibels or more), and as such, the Veteran was considered under Table VI and Table VIa for left ear hearing loss. Under Table VI, the Veteran has Level III hearing in the left hearing and under Table VIa, the Veteran has Level VI hearing in the left ear. As a results of Table VIa result in higher Roman numeral designation for hearing impairment, the Board will use findings from Table IVa. Based on these findings, the Veteran has Level II hearing in the right ear and Level VI hearing the left ear. Applying these results to Table VII, a 10 percent rating is warranted. In May 2017, November 2017, May 2018, November 2018, and May 2019, the Veteran reported that his hearing decreased despite hearing aids. See May 5, 2017 VA primary care note; November 17, 2017 primary care note; May 18, 2018 VA primary care note; November 23, 2018 VA primary care note; and May 30, 2019 primary care note. In a March 2019 appellate brief, the Veteran contends that is hearing loss has progressively worsened. The Board notes that despite the Veteran's reports of decreased hearing in May 2017, November 2017, May 2018, November 2018, and May 2019, the Veteran was not provided an audiogram to assess the severity of his hearing loss. Significantly, the Veteran continued to report decreased hearing loss, despite the use of hearing aids. A review of the record notes that the objective evidence reflects that on March 18, 2016, the Veteran's bilateral hearing loss warrants a 10 percent rating based on the March 2016 examination. And on November 4, 2019, the objective evidence reflects the Veteran's hearing loss warrants a 20 percent rating, based on the November 2019 VA examination. However, for the time between, unfortunately, because the Veteran was not provided an audiogram at any point, despite his continued hearing loss complaints, there are no audiometric findings to determine that a rating in excess of 10 percent is warranted. However, the Board finds it significant that the Veteran made consistent reports of decreased hearing each time he was seen by his primary care provider. Thus, while the Board cannot make an objective finding that the Veteran's audiometric puretone thresholds met the criteria for a 20 percent rating prior to the November 4, 2019, examination, the Board cannot ignore the Veteran's subjective complaints of decreased hearing. Furthermore, because the record contains several complaints of decreased hearing, the Board cannot conclude that the Veteran's hearing loss did not meet the requirements of a 20 percent rating prior to the November 4, 2019, VA examination. Thus, resolving reasonable doubt in favor of the Veteran, the Board finds that the evidence is in equipoise as to whether a 20 percent rating is warranted from March 18, 2016, to November 4, 2019. However, a rating in excess of 20 percent from March 18, 2016, to November 4, 2019, is not warranted. Simply, there are no audiometric findings in the record to support a higher rating than 20 percent. The Board has afforded great weight to the Veteran's reports of hearing loss and, because he was not provided an audiogram at the time of those reports, the Board has given the Veteran the benefit of the doubt that the severity of his hearing loss would have met the 20 percent rating if he was assessed prior to November 4, 2019. However, a rating in excess of 20 percent is not warranted, as there are no audiometric findings at all in the record to reflect hearing loss to support a rating higher than 20 percent. The Board acknowledges, when considering all the evidence of record, some of it is favorable and some of it is unfavorable and thus in equipoise. A claim will be denied only if the probative evidence is against the claim. If the evidence for and against a claim is in equipoise, the claim will be granted. See 38 U.S.C. § 5107. In sum, based on the unique facts of this case and the evidence deemed most probative by the Board, it demonstrates that pursuant to the criteria provided in 38 C.F.R. § 4.85 and 4.86, the evidence is in equipoise as to whether the Veteran's hearing impairment from March 18, 2016, to November 4, 2019, warrants a 20 percent rating, but no higher. YVETTE R. WHITE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Abdelbary, 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.