Citation Nr: 22015259 Decision Date: 03/16/22 Archive Date: 03/16/22 DOCKET NO. 14-21 020 DATE: March 16, 2022 ORDER A disability rating greater than 10 percent beginning March 9, 2016 for bilateral hearing loss is denied. REMANDED The issue of entitlement to a compensable disability rating prior to March 9, 2016 for bilateral hearing loss is remanded. FINDING OF FACT Beginning March 9, 2016, the Veteran's bilateral hearing loss has been manifested by, at worst, Level IV hearing loss in the right ear and Level V hearing loss in the left ear. CONCLUSION OF LAW Beginning March 9, 2016, the criteria for a disability rating greater than 10 percent for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1, 4.85, Diagnostic Code (DC) 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from April 1961 to April 1965. These matters come to the Board of Veterans' Appeals (Board) on appeal from rating decisions issued in August 2009 and October 2010 by a Department of Veterans Affairs (VA) Regional Office (RO) which continued a noncompensable disability rating for the Veteran's bilateral hearing loss. The Veteran disagreed with this decision and perfected this appeal. In January 2016, the Board remanded the instant appeal for additional development. Thereafter, in January 2017, the RO increased the disability rating for the Veteran's bilateral hearing loss from noncompensable to 10 percent disabling effective March 9, 2016. In April 2017 the Veteran requested a Board hearing but withdrew this request in September 2018. In November 2018, the Board, in pertinent part, denied a compensable disability rating prior to March 9, 2016, and a disability rating greater than 10 percent thereafter for the Veteran's bilateral hearing loss. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court) and, in a July 2020 Memorandum Decision, the Court vacated the November 2018 Board decision. Thereafter, in May 2021, the Board remanded the claim for additional development pursuant to the July 2020 Memorandum Decision. Increased Ratings 1. A disability rating greater than 10 percent beginning March 9, 2016 for bilateral hearing loss is denied. The Veteran contends that his service-connected bilateral hearing loss is more disabling than currently rated beginning March 9, 2016. By way of history, the Veteran's service treatment records show hearing loss upon enlistment examination and show increased hearing loss upon separation examination. The Veteran submitted an initial claim for service connection for bilateral hearing loss in March 2004 and, by rating decision dated in June 2008, the RO granted service connection for bilateral hearing loss, finding that the Veteran's bilateral hearing loss increased in severity during his service and that a noncompensable disability rating was warranted effective March 17, 2004 based on consideration of aggravation of a pre-existing condition. Notably, VA regulations require deduction of the pre-existing baseline level of severity of the bilateral hearing loss from the current level of severity of bilateral hearing loss. See 38 C.F.R. § 4.22. In this case, the Veteran's bilateral hearing loss was found to be noncompensable upon separation from service. The Veteran submitted the current claim for an increased rating for his bilateral hearing loss in July 2009 and, by rating decisions dated in August 2009 and October 2010, the RO continued a noncompensable disability rating for the Veteran's bilateral hearing loss. The Veteran disagreed with this decision and perfected this appeal. Thereafter, in January 2017, the RO increased the disability rating for the Veteran's bilateral hearing loss from noncompensable to 10 percent disabling effective March 9, 2016. Disability ratings are assigned in accordance with VA's Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. See 38 U.S.C. § 1155 ; 38 C.F.R. §§ 3.321 (a), 4.1. Separate diagnostic codes identify the various disabilities. See generally 38 C.F.R. Part 4. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Hearing loss is rated under DC 6100. 38 C.F.R. § 4.85. Once a hearing disability has been established, a numeric designation of hearing impairment is determined for each ear by applying the puretone threshold average and Maryland CNC percentage scores to Table VI ("Numeric Designation of Hearing Impairment Based on Puretone Threshold Average and Speech Discrimination"), which results in a Roman numeral designation. 38 C.F.R. § 4.85 (b), Table VI. Disability ratings are then assigned by combining the level of hearing loss in each ear in Table VII ("Percentage Evaluation for Hearing Impairment"). 38 C.F.R. § 4.85 (e), Table VII; see Lendenmann v. Principi, 3 Vet. App. 345 (1992). Table VI is generally used to determine the Roman numeral designation (I through XI) for hearing impairment in each ear, unless an exceptional pattern of hearing loss is shown, in which case Table VIa may be used. 38 C.F.R. § 4.86. Here, the Veteran's hearing loss does not show an exceptional pattern (as set forth in Section 4.86) and therefore Table VI will be used. Evidence relevant to the level of severity of the Veteran's bilateral hearing loss beginning March 9, 2016 includes audiological examination reports dated in March 2016 and July 2021. At the March 2016 VA examination, the Veteran averaged a loss of 56 decibels in the right ear, and 53 decibels in the left ear. His Maryland CNC test results were 80 percent in the right, and 68 percent in the left. These results correspond with Level IV hearing loss in the right ear and Level V hearing loss in the left ear, which corresponds to a 10 percent rating. See Tables VI and VII, 38 C.F.R. § 4.85. At the July 2021 VA examination, the Veteran averaged a loss of 68.75 decibels in the right ear, and 66.25 decibels in the left ear. His Maryland CNC test results were 86 percent in the right, and 86 percent in the left. These results correspond with Level III hearing loss in the right ear and Level III hearing loss in the left ear, which corresponds to a 0 percent rating. See Tables VI and VII, 38 C.F.R. § 4.85. As above, VA regulations require deduction of the pre-existing baseline level of severity of the bilateral hearing loss from the current level of severity of bilateral hearing loss. See 38 C.F.R. § 4.22. As the Veteran's bilateral hearing loss was considered non-disabling upon separation of service (0 percent rating) and was considered 10 percent disabling after March 9, 2016 based on the audiological evaluation, a 10 percent rating for such period is appropriate. The Board has considered the totality of the medical record, including the increased hearing acuity from March 2016 to July 2021, as well as the March 2019 audiological examination which demonstrates severely limited word recognition scores bilaterally (32 percent on the right and 28 percent on the left). From March 2016 to July 2021, the medical records do not contain decibel readings other than the VA examinations. The only word recognition score during that period was in March 2019. No other audiological issue was found other than severe impaction of cerumen (earwax) in the Veteran's ears. This was removed during several procedures in May and December 2019, with a large amount cerumen removed in May 2019. After the cerumen was removed, his hearing improved in July 2021. Thus, the Board finds that the medical evidence supports a relationship between excess cerumen and reduced hearing acuity. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions). The Board has also considered the Veteran's representative's assertion that the VA examination was deficient because it did not address the May 2019 medical record. However, there was no directive in the previous remand for the examiner to address such a record. Further, as explained above, the medical record demonstrates why a reduction of hearing acuity and then an increase in acuity occurred. The Board has considered whether the other evidence of record, including his statements, show that a higher rating is warranted. He has reported functional loss in not being able to hear people speaking to him, conversation, or when there is background sound. This evidence is insufficient, without the commensurate audiometric testing, to warrant a higher rating. The Board finds the results of audiometric testing are more probative in determining the actual degree of disability as set forth by the Rating Schedule. This medical evidence is persuasive, as it objectively shows the level of severity of his hearing loss in terms that may be applied to the rating criteria. 38 C.F.R. § 4.85; Lendenmann, supra. As to the issue of entitlement to a compensable disability rating for the Veteran's bilateral hearing loss prior to March 9, 2016, the Board finds that additional development is necessary as noted below. REASONS FOR REMAND 2. The issue of entitlement to a compensable disability rating prior to March 9, 2016 for bilateral hearing loss is remanded. As above, by rating decision dated in January 2017, the RO increased the disability rating for the Veteran's bilateral hearing loss from noncompensable to 10 percent disabling effective March 9, 2016, the date of a VA examination showing a decrease in hearing acuity. The Board issued a decision in November 2018, that among other things, denied a compensable disability rating for the Veteran's bilateral hearing loss prior to March 9, 2016. The Veteran appealed this decision to the Court and, in a July 2020 Memorandum Decision, the Court found that the Board failed to address potentially favorable evidence of an increase in severity in the Veteran's hearing loss prior to the March 2016 VA examination. Specifically, it was noted that January 2015 and August 2015 VA treatment records document the Veteran's complaints of potentially increased hearing loss such that his hearing aids were no longer helpful. As such, it was noted that these records may reflect that the compensable hearing loss observed at the March 2016 examination began before the date of that examination. Accordingly, the case was remanded in May 2021 for a new VA audiological examination and it was requested that: to the extent possible, the examiner should provide a retrospective medical opinion regarding the extent and severity of the Veteran's bilateral hearing loss prior to March 9, 2016. Specifically, the examiner should provide an estimate as to when an increase in the Veteran's hearing loss, which was measured at the March 9, 2016 VA examination, likely occurred. Pursuant to the May 2021 Board remand, the Veteran was afforded a VA audiological examination in July 2021. Unfortunately, the retrospective medical opinion requested in the May 2021 Board remand was never obtained. As such, an addendum medical opinion should be obtained on remand. The matter is REMANDED for the following action: Return the claims file to the July 2021 VA audiological examiner for an addendum opinion. If the examiner who drafted the July 2021 opinion is unavailable, the opinion should be rendered by another appropriate medical professional. The need for another examination is left to the discretion of the medical professional offering the addendum opinion. To the extent possible, the examiner should provide a retrospective medical opinion regarding the extent and severity of the Veteran's bilateral hearing loss prior to March 9, 2016. Specifically, the examiner should consider the January 2015 and August 2015 VA treatment records documenting the Veteran's complaints of potentially increased hearing loss such that his hearing aids were no longer helpful and then provide an estimate as to when an increase in the Veteran's hearing loss, which was measured at the March 9, 2016 VA examination, likely occurred. The clinician should address the impact, if any, of cerumen impaction. Ian M. Hitchcock Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board April Maddox, 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.