Citation Nr: 22014041 Decision Date: 03/11/22 Archive Date: 03/11/22 DOCKET NO. 15-23 668 DATE: March 11, 2022 ORDER Entitlement to an initial increased rating above 30 percent from June 30, 2011, through July 10, 2013, for bilateral sensorineural hearing loss is denied. Entitlement to an increased rating of 30 percent, but no higher, from July 11, 2013, through June 28, 2019, for bilateral sensorineural hearing loss is granted. Entitlement to an increased rating above 30 percent since June 29, 2019, for bilateral sensorineural hearing loss is denied. FINDING OF FACT Throughout the appeal period, applying puretone threshold average and speech discrimination data to Tables VI, VIa, and VII, the Veteran's bilateral hearing loss results in a 30 percent rating. CONCLUSION OF LAW Throughout the appeal period, the criteria for entitlement to a 30 percent rating, but no higher, have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.321, 3.385, 4.1, 4.3, 4.7, 4.85, Diagnostic Code (DC) 6100, Tables VI, VIa, and VII (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had qualifying service from February 1970 to January 1972. In September 2018, the Veteran testified at a Board Videoconference Hearing before the undersigned Veterans Law Judge. In a February 2019 Decision, the Board remanded the issue herein for further medical development. In a July 2020 Rating Decision, the Agency of Original Jurisdiction (AOJ) granted an increased rating from 20 percent to 30 percent effective October 29, 2019. Despite this grant, the appeal remains properly before the Board because higher ratings are still available. AB v. Brown, 6 Vet. App. 35, 38-39 (1993). In a May 2021 Decision, the Board remanded the issue herein for further medical development. In a November 2021 Rating Decision, the AOJ granted an earlier effective date for the 30 percent rating from October 29, 2019, to June 29, 2019. Despite this grant, the appeal remains properly before the Board because higher ratings are still available. AB, supra. Increased Ratings In determining the severity of a disability, the Board applies the criteria set forth in the Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If the disability more closely approximates the criteria for the higher of two ratings, the higher rating is assigned. 38 C.F.R. § 4.7. Generally, severity of hearing impairment is calculated by applying puretone threshold average and speech discrimination to Table VI and Table VII. 38 C.F.R. § 4.85, DC 6100, Tables VI and VII; Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992) (defective hearing is rated based on a mere mechanical application of the rating criteria). Examinations of 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). For cases involving exceptional patterns of hearing impairment, the schedular criteria stipulate 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. 38 C.F.R. § 4.86(a). Each ear is evaluated separately. Additionally, 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. 38 C.F.R. § 4.86(b). The numeral will then be elevated to the next higher Roman numeral. Id. Each ear will be evaluated separately. The Veteran's bilateral hearing loss has been rated under DC 6100 at: 30 percent from June 30, 2011; 20 percent from July 11, 2013; and 30 percent since June 29, 2019. See November 2021 Codesheet; 38 C.F.R. § 4.85, DC 6100, Tables VI, VIa, and VII. The Veteran generally contends that his hearing loss is worse than currently rated. 1. Entitlement to an initial increased rating above 30 percent from June 30, 2011, through July 10, 2013, for bilateral sensorineural hearing loss 2. Entitlement to an increased rating above 20 percent from July 11, 2013, through June 28, 2019, for bilateral sensorineural hearing loss 3. Entitlement to an increased rating above 30 percent since June 29, 2019, for bilateral sensorineural hearing loss During the September 2011 VA audiological examination, the Veteran reported difficulty hearing in all situations without his hearing aids. The examiner measured right ear (better) loss of: 65 decibels (dB) at 1000 Hertz (Hz); 75 dB at 2000 Hz; 80 dB at 3000 Hz; 85 dB at 4000 Hz; and average 76 dB. This examiner measured left ear (poorer) loss of: 65 dB at 1000 Hz; 75 dB at 2000 Hz; 85 dB at 3000 Hz; 95 dB at 4000 Hz; and average 80 dB. The examiner noted that the Veteran could not follow the pace of the Maryland CNC word lists, so monitored live voice presentation of CID W-22 word lists were used, measuring speech discrimination for the right ear at 84 percent and left ear at 72 percent. Applying these values to Table VI, the right ear results in a Roman Numeral designation of III and the left ear results in a Roman Numeral designation of VI; applying the results of Table VI to Table VII, the resulting rating is 10 percent. However, both ears meet the criteria for an exceptional pattern of hearing because the puretone threshold at each of the four specified frequencies is 55 dB or more; so, evaluating each ear separately under Table VIa, the right ear results in VI and the left ear results in VII, which combine to 30 percent on Table VII. In a July 2013 private audiological evaluation by a state-licensed audiologist, the Veteran reported: difficulty hearing in most communication situations, particularly when there is background noise; significant difficulty localizing from where sounds are coming; difficulty hearing and understanding speech, particularly female voices; and being able to understand speech if he can see the speaker's face. The provider measured right ear (better) loss of: 50 dB at 1000 Hz; 60 dB at 2000 Hz; 75 dB at 3000 Hz; 70 dB at 4000 Hz; and average 63 dB. This provider measured left ear (poorer) loss of: 65 dB at 1000 Hz; 70 dB at 2000 Hz; 85 dB at 3000 Hz; 95 dB at 4000 Hz; and average 78 dB. The provider noted that, when using a recorded male voice and presented at 91 dB in the right ear and 85 dB in the left ear, Maryland CNC word list speech discrimination measured 90 percent for the right ear and 92 percent for the left ear. Applying these values to Table VI, the right ear results in a Roman Numeral designation of III and the left ear results in a Roman Numeral designation of II; applying the results of Table VI to Table VII, the resulting rating is 0 percent. However, the left ear meets the criteria for an exceptional pattern of hearing because the puretone threshold at each of the four specified frequencies is 55 dB or more; so, evaluating each ear separately under Table VIa, the right ear results in V and the left ear results in VII, which combine to 30 percent on Table VII. A November 2014 audiological evaluation at Decatur CBOC measured: right ear (better) loss of: 40 dB at 1000 Hz; 55 dB at 2000 Hz; 70 dB at 3000 Hz; 75 dB at 4000 Hz; and average 60 dB. This provider measured left ear (poorer) loss of: 55 dB at 1000 Hz; 65 dB at 2000 Hz; 85 dB at 3000 Hz; 85 dB at 4000 Hz; and average 72 dB. The provider noted that the recorded CID W-22 word lists were used, measuring speech discrimination for both ears at 88 percent. Applying these values to Table VI, the right ear results in a Roman Numeral designation of III and the left ear results in a Roman Numeral designation of III; applying the results of Table VI to Table VII, the resulting rating is 0 percent. However, the left ear meets the criteria for an exceptional pattern of hearing because the puretone threshold at each of the four specified frequencies is 55 dB or more; so, evaluating each ear separately under Table VIa, the right ear results in IV and the left ear results in VI, which combine to 20 percent on Table VII. In July 2016, the Veteran submitted July 2015 and June 2016 audiograms conducted at Birmingham VAMC; however, neither provider specified what type of speech discrimination testing was used and both providers noted that some audiological testing could not be performed due to a past history of seizures. During the September 2018 Board Hearing, the Veteran testified that his hearing had worsened and he had to read lips. In a September 2018 Correspondence, the Veteran described the results of November 2014, July 2015, June 2016, and July 2017 audiograms, without specifying whether they were VA-provided, were private, used the Maryland CNC word list, or were performed by a state-licensed audiologist. Additionally, a September 2018 VA audiological examination is of record, but the Board's February 2019 Decision found it to be inadequate because it did not use the Maryland CNC word list. A June 2019 private audiological evaluation by Dr. GHG, whose credentials and use of Maryland CNC word list were confirmed in an October 2021 VA Form 27-0820, measured: right ear (better) loss of: 55 dB at 1000 Hz; 60 dB at 2000 Hz; 70 dB at 3000 Hz; 75 dB at 4000 Hz; average 65 dB; and Maryland CNC speech discrimination at 100 percent. This provider measured left ear (poorer) loss of: 75 dB at 1000 Hz; 75 dB at 2000 Hz; 90 dB at 3000 Hz; 85 dB at 4000 Hz; average 81 dB; and Maryland CNC speech discrimination at 100 percent. Applying these values to Table VI, the right ear results in a Roman Numeral designation of II and the left ear results in a Roman Numeral designation of II; applying the results of Table VI to Table VII, the resulting rating is 0 percent. However, both ears meet the criteria for an exceptional pattern of hearing because the puretone threshold at each of the four specified frequencies is 55 dB or more; so, evaluating each ear separately under Table VIa, the right ear results in V and the left ear results in VII, which combine to 30 percent on Table VII. During the October 2019 VA audiological examination, the Veteran reported difficulty hearing such that he has to read lips (even with hearing aids) and he cannot understand "unless the sound is loud and then it gets too loud and [he] still [does not] understand." The examiner measured right ear (better) loss of: 45 dB at 1000 Hz; 45 dB at 2000 Hz; 70 dB at 3000 Hz; 70 dB at 4000 Hz; average 58 dB; and Maryland CNC speech discrimination at 64 percent. This examiner measured left ear (poorer) loss of: 60 dB at 1000 Hz; 85 dB at 2000 Hz; 90 dB at 3000 Hz; 85 dB at 4000 Hz; average 80 dB; and Maryland CNC speech discrimination at 68 percent. Applying these values to Table VI, the right ear results in a Roman Numeral designation of VI and the left ear results in a Roman Numeral designation of VI; applying the results of Table VI to Table VII, the resulting rating is 30 percent. However, the left ear meets the criteria for an exceptional pattern of hearing because the puretone threshold at each of the four specified frequencies is 55 dB or more; so, evaluating each ear separately under Table VIa, the right ear results in V and the left ear results in VII, which combine to 30 percent on Table VII. During the November 2021 VA audiological examination, the Veteran reported continued struggles to understand speech. The examiner measured right ear (better) loss of: 40 dB at 1000 Hz; 60 dB at 2000 Hz; 70 dB at 3000 Hz; 70 dB at 4000 Hz; average 60 dB; and Maryland CNC speech discrimination at 70 percent. This examiner measured left ear (poorer) loss of: 55 dB at 1000 Hz; 70 dB at 2000 Hz; 80 dB at 3000 Hz; 85 dB at 4000 Hz; average 73 dB; and Maryland CNC speech discrimination at 60 percent. Applying these values to Table VI, the right ear results in a Roman Numeral designation of V and the left ear results in a Roman Numeral designation of VII; applying the results of Table VI to Table VII, the resulting rating is 30 percent. However, the left ear meets the criteria for an exceptional pattern of hearing because the puretone threshold at each of the four specified frequencies is 55 dB or more; so, evaluating each ear separately under Table VIa, the right ear results in IV and the left ear results in VI, which combine to 20 percent on Table VII. (Continued on the next page) Based on the above, the Board finds that the Veteran's bilateral hearing loss results in a 30 percent rating since June 30, 2011. Ratings above 30 percent are not warranted because the application of the puretone threshold average and speech discrimination to Tables VI, VIa, and VII do not show a severity higher than that contemplated by the 30 percent rating. 38 C.F.R. § 4.85, DC 6100, Tables VI, VIa, and VII. Further, the Board finds that the AOJ's assignment of a 20 percent rating from July 11, 2013, through June 28, 2019, was inappropriate because the medical evidence does not demonstrate improvement under the ordinary conditions of life, with the Veteran consistently reporting the same or worsening functional impact since June 30, 2011. Although the Board has considered the lay reports of how the Veteran's hearing loss has affected his daily functioning, the Board highlights that the rating criteria for a hearing loss disability already contemplate the functional effects of decreased hearing and difficulty understanding speech in an everyday work environment, as these are the effects that VA's audiometric tests are designed to measure. Doucette v. Shulkin, 28 Vet. App. 366 (2017). In essence, VA's audiological examinations are designed for purposes of obtaining information necessary for the full and accurate application of the "Percentage Evaluation for Hearing Impairment" tables, which are based exclusively on the results provided from two objective tests namely, a pure tone audiometry test and a speech discrimination test. 38 C.F.R. § 4.85. Accordingly, the Board finds that the objective clinical findings outweigh the lay assertions regarding whether an increased rating is warranted. It must be emphasized that a disability rating for bilateral hearing impairment is derived by a mechanical application of the Rating Schedule to the numeric designation assigned after audiometry results are obtained. Lendenmann, supra. Here, all of the audiometric testing of record indicates that the Veteran's condition does not warrant a rating above 30 percent. As such, the Board: (a) denies an increased rating above 30 percent from June 30, 2011, through July 10, 2013; (b) grants an increased rating of 30 percent, but no higher, from July 11, 2013, through June 28, 2019; and (c) denies an increased rating above 30 percent since June 29, 2019. Implementing the grant herein, the rating for this disability should be 30 percent since June 30, 2011. R. FEINBERG Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H. Daus, 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.