Citation Nr: 22016169 Decision Date: 03/21/22 Archive Date: 03/21/22 DOCKET NO. 17-07 734 DATE: March 21, 2022 ORDER Entitlement to a compensable rating prior to April 2, 2021, and a rating in excess of 20 percent from April 2, 2021, for service-connected bilateral hearing loss is denied. FINDINGS OF FACT 1. For the appeal period prior to April 2, 2021, the Veteran's hearing acuity at most warrants a Level III in the right ear and a Level II in the left ear. 2. For the appeal period from April 2, 2021, the Veteran's hearing acuity at most warrants a Level V in the right ear and Level VI in the left ear. CONCLUSION OF LAW The criteria for entitlement to a compensable rating prior to April 2, 2021, and a rating in excess of 20 percent from April 2, 2021, for service-connected bilateral hearing loss have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 3.159, 4.1-4.14, 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from November 1975 to November 1979. This matter is before the Board of Veterans' Appeals (Board) on appeal from a November 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a virtual Board hearing held before the undersigned Veterans Law Judge in March 2021. A transcript of the hearing is of record. This matter was previously before the Board in March 2021 and September 2021 when it was remanded for further development. A review of the record shows substantial compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In April 2021, the RO increased the Veteran's disability rating for bilateral hearing loss to 20 percent, effective April 2, 2021. As the increased rating is less than the maximum under the applicable criteria, the claim remains on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). Entitlement to a compensable rating prior to April 2, 2021, and a rating in excess of 20 percent from April 2, 2021, for service-connected bilateral hearing loss Increased ratings are not warranted for the Veteran's service-connected bilateral hearing loss for any period on appeal. 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. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. With a claim for an increased initial rating, separate staged ratings may be assigned based on facts found. Fenderson v. West, 12 Vet. App. 119 (1999). In a claim for increase in a previously established rating, the present level of disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where the evidence contains factual findings that demonstrate distinct time periods when the service connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, staged ratings are to be considered. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Turning to the evidence of record, in June 2015, the Veteran was afforded a VA examination for his bilateral hearing loss. The Veteran was diagnosed with sensorineural hearing loss in the right ear and sensorineural hearing loss in the left ear. The Veteran complained that he had difficulty understanding speech. The Veteran's Maryland CNC test scores were 100 percent in the right ear and 96 percent in the left ear. The Veteran's puretone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 15 30 60 55 40 LEFT 20 40 35 35 32.5 Applying the results to Table VI, the findings yield a numeric designation of Level I in the right ear and Level I in the left ear. Under 38 C.F.R. § 4.85, Table VII, such hearing acuity warrants a 0 percent rating under Diagnostic Code 6100. In November 2015, the Veteran was afforded a VA examination for his bilateral hearing loss. The Veteran was diagnosed with sensorineural hearing loss in the right ear and left ear. The Veteran reported that he had trouble hearing the television. The Veteran's Maryland CNC test scores were 96 percent in the right ear and 96 percent in the left ear. The Veteran's puretone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 15 15 50 40 30 LEFT 15 15 25 30 21.25 Applying the results to Table VI, the findings yield a numeric designation of Level I in the right ear and Level I in the left ear. Under 38 C.F.R. § 4.85, Table VII, such hearing acuity warrants a 0 percent rating under Diagnostic Code 6100. In April 2021, the Veteran was afforded a VA examination for bilateral hearing loss. The Veteran was diagnosed with sensorineural hearing loss in the right ear and left ear. The Veteran complained that he constantly had to have words repeated to him, which frustrated him. He said that it caused lack of concentration. The Veteran's Maryland CNC test scores were 74 percent in the right ear and 66 percent in the left ear. The Veteran's puretone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 35 35 65 65 50 LEFT 30 45 60 65 50 Applying the results to Table VI, the findings yield a numeric designation of Level V in the right ear and Level VI in the left ear. Under 38 C.F.R. § 4.85, Table VII, such hearing acuity warrants a 20 percent rating under Diagnostic Code 6100. Additionally, VA treatment records contain audiological evaluations from October 2015 and January 2020. These evaluations for the puretone thresholds were only recorded in graph form. The Board may interpret the graphical representation contained in the audiograms into numerical results so as to appropriately rate the hearing disability. See Kelly v. Brown, 7 Vet. App. 471, 474 (1995). In September 2021, the Board remanded the issue of an increased rating for bilateral hearing loss in order to clarify whether speech discrimination testing performed in the October 2015 and January 2020 VA audiological evaluations to determine used the Maryland CNC word list. Ultimately, it was determined that the Maryland CNC word list test was not used for the October 2015 and January 2020 audiological evaluations. See November 2021 VA Form 27-0820 Report of General Information and November 2021 SSOC. Under 38 C.F.R. § 4.85(c), Table VIA "Numeric Designation of Hearing Impairment Based Only on Puretone Threshold Average," is used to determine a Roman numeral designation (I through XI) for hearing impairment based only on the puretone threshold average. Table VIA will only be used when the examiner certifies that use of the speech discrimination test is not appropriate. This is the case in this instance. For the October 2015 VA audiological evaluation, as the Board has interpreted from the graph, the Veteran's puretone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 10 15 50 40 28.75 LEFT 15 15 30 30 22.5 Applying these results to Table VIA, the findings yield a numeric designation of Level I in the right ear and Level I in the left ear. Under 38 C.F.R. § 4.85, Table VII, such hearing acuity warrants a 0 percent rating under Diagnostic Code 6100. For the January 2020 VA audiological evaluation, as the Board has interpreted from the graph, the Veteran's puretone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 35 45 70 70 55 LEFT 35 45 55 50 46.25 Applying these results to Table VIA, the findings yield a numeric designation of Level III in the right ear and Level II in the left ear. Under 38 C.F.R. § 4.85, Table VII, such hearing acuity warrants a 0 percent rating under Diagnostic Code 6100. The Board finds the June 2015, November 2015, and April 2021 VA examinations to be adequate for rating purposes because the VA examiners indicated that the test results were adequate, they fully examined the Veteran, and they considered his lay statements regarding complaints of hearing loss. Additionally, the Board finds the October 2015 and January 2020 VA audiological evaluations to be adequate because the test results were similar to the VA examination test results around those same time periods. After a thorough review of the lay and medical evidence, the Board finds that increased ratings for the entire appeal period is not warranted for the Veteran's service-connected bilateral hearing loss. The Board has considered the Veteran's lay statements regarding functional impact of his hearing loss, which included difficulty hearing in certain environments and situations. See Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007) (VA audiologists conducting hearing examinations are required to fully describe the functional effects caused by a hearing disability because merely dictating objective test results does not adequately describe the effect of a hearing disability on a veteran's occupational functioning and daily activities); cf. Doucette v. Shulkin, 28 Vet. App. 366 (2017) (the ability to hear or understand speech or to hear other sounds in various contexts is contemplated by the schedular rating criteria). As the results of the objective testing do not demonstrate that the Veteran's hearing more closely approximates the levels required for an increased rating, increased ratings for the Veteran's bilateral hearing loss must be denied for all periods on appeal. The evidence is not in approximate balance, and the benefit of the doubt rule is not for application. Evan M. Deichert Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Crawford, 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.