Citation Nr: 22016991 Decision Date: 03/23/22 Archive Date: 03/23/22 DOCKET NO. 17-50 086 DATE: March 23, 2022 ORDER An initial compensable rating prior to November 15, 2021, for service-connected bilateral hearing loss, is denied. A 20 percent rating for service-connected bilateral hearing loss since November 15, 2021, is granted. FINDINGS OF FACT 1. Prior to November 15, 2021, based on VA audiometric test results, the Veteran had, at worst, Level II hearing loss in the right ear and Level I hearing loss in the left ear. 2. Since November 15, 2021, based on VA audiometric test results, the Veteran had, at worst, Level III hearing loss in the right ear and Level VII hearing loss in the left ear. CONCLUSIONS OF LAW 1. The criteria for an initial compensable rating prior to November 15, 2021, for service-connected bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107, 5110; 38 C.F.R. §§ 3.156 (b), 3.400, 4.3, 4.7, 4.21, 4.85, 4.86, Diagnostic Code (DC) 6100. 2. The criteria for a rating of 20 percent, and no more, for service-connected bilateral hearing since November 15, 2021, have been met. 38 U.S.C. §§ 1155, 5107, 5110; 38 C.F.R. §§ 3.156 (b), 3.400, 4.3, 4.7, 4.21, 4.85, 4.86, DC 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1971 to January 1973. The Veteran and his daughter testified at a hearing before the undersigned Veterans Law Judge (VLJ) of the Department of Veterans Affairs (VA) Board of Veterans' Appeals (Board) in October 2021. A transcript of the hearing has been associated with the claims file. The issue was remanded by the Board to the RO in October 2021; the claims file has been returned to the Board for adjudication. Entitlement to an initial compensable rating for service-connected bilateral hearing loss prior to November 21, 2021, and a rating in excess of 10 percent thereafter. Disability ratings are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Where there is a reasonable doubt as to the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. 38 C.F.R. § 4.21. An initial noncompensable rating was assigned to the Veteran's bilateral hearing loss by an February 2017 rating decision, effective August 17, 2012. By a November 2021 decision of a Decision Review Officer (DRO) at the RO, the rating assigned to the Veteran's service-connected bilateral hearing loss was increased to 10 percent, effective November 15, 2021. Because the level of disability may have varied over the course of the claim, the rating may be "staged" higher or lower for segments of time during the period under review in accordance with such variations, to the extent the evidence shows distinct time periods where the service-connected disability has exhibited signs or symptoms that would warrant different ratings under the rating criteria. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). In initial-rating cases, where the appeal stems from a granted claim of service connection with respect to the initial evaluation assigned, VA assesses the level of disability from the effective date of service connection. See Fenderson, 12 Vet. App. at 125; 38 U.S.C. § 5110; 38 C.F.R. § 3.400. In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). The Board has considered the Veteran's claim and decided entitlement based on the evidence. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record, with respect to his claim. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). The severity of a hearing loss disability is determined by comparisons of audiometric test results with specific criteria set forth at 38 C.F.R. § 4.85. Evaluations of bilateral defective hearing range from noncompensable 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 as measured by puretone audiometry tests in the frequencies of 1,000, 2,000, 3,000, and 4,000 Hertz (Hz) (cycles per second). Id. The Rating Schedule allows for such audiometric test results to be translated into a numeric designation ranging from Level I, for essentially normal acuity for VA compensation purposes, to Level XI, for profound deafness, in order to evaluate the degree of disability from bilateral service-connected defective hearing. An examination for hearing impairment must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a puretone audiometry test. Examinations are to be conducted without the use of hearing aids. Id. Current VA guidelines direct that, when speech recognition is 92 percent or less in a given ear, a modified performance intensity function should be obtained. See VA Handbook of Standard Procedures and Best Practices for Audiology Compensation and Pension Examinations, sec. B, pt. 2, Table 7 (K.C. Dennis ed., 2004) (providing detailed procedures for obtaining a modified performance-intensity function); Revised Audio AMIE Worksheet, Veterans Benefit Administration (VBA) Fast Letter 10-06 (Dep't of Veterans Affairs, February 17, 2010). The rating criteria provide for rating exceptional patterns of hearing impairment when the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hz) is 55 decibels or more, when the puretone threshold is 30 decibels or less at 1000 Hz, and 70 decibels or more at 2000 Hz, and when an audiological examiner certifies that use of the speech discrimination test is inappropriate because of language difficulties, inconsistent speech discrimination scores, or other related factors. 38 C.F.R. §§ 4.85, 4.86. In an August 2013 audiological Disability Benefits Questionnaire (DBQ), the examiner reported that they were not able to obtain valid audiometric testing results. In a January 2017 audiological DBQ, objective findings revealed that the Veteran's puretone thresholds, in decibels, for the right ear were 40, 50, 50, 75, and for the left ear were 35, 55, 55, 80, measured at 1000, 2000, 3000, and 4000 Hz, respectively. The average puretone threshold was 54 decibels in the right ear and 56 decibels in the left ear. Speech recognition ability was 92 percent in the right ear and 90 percent in the left ear. The audiogram accompanying the DBQ indicates that the Veteran's results of a modified performance intensity function revealed speech recognition of 92 percent in the right ear and 90 percent in the left ear. The Veteran reported that people have to repeat what they say to him and children complain that he does not hear well. Based on the January 2017 results, the Veteran's hearing impairment was manifested by Level II hearing acuity in the right ear and Level I hearing acuity in the left ear. 38 C.F.R. § 4.8, Table VI, DC 6100. Using Table VII, the result is a noncompensable rating for bilateral hearing impairment. See 38 C.F.R. § 4.85, Table VII, DC 6100. During his October 2021 Board hearing, the Veteran asserted that he had difficulty hearing even with his hearing aids and that his bilateral hearing acuity had decreased since his last examination. His daughter asserted that the Veteran appeared confused during conversations, that he seemed to agree with what was being said when he did not really hear what was being said. In a November 2021 audiological DBQ, objective findings revealed that the Veteran's puretone thresholds, in decibels, for the right ear were 50, 70, 75, 80, and for the left ear were 60, 80, 80, 90, measured at 1000, 2000, 3000, and 4000 Hz, respectively. The average puretone threshold was 69 decibels in the right ear and 78 decibels in the left ear; and speech recognition ability was 90 percent in the right ear and 72 percent in the left ear. The audiogram accompanying the DBQ indicates that the Veteran's results of a modified performance intensity function revealed speech recognition of 90 percent in the right ear and 72 percent in the left ear. The Veteran reported that he had difficulty understanding people clearly and mishears conversation. Based on the November 2021 results, the Veteran's hearing impairment was manifested by Level III hearing acuity in the right ear and Level VI hearing acuity in the left ear. 38 C.F.R. § 4.8, Table VI, DC 6100. Using Table VII, the result is a ten percent rating for bilateral hearing impairment. See 38 C.F.R. § 4.85, Table VII, DC 6100. However, as there is evidence of a puretone threshold at each of the four specified frequencies of 55 decibels or more measured during the November 2021 DBQ, in the left ear, the Board has considered if a higher rating may be assigned for an exceptional pattern of hearing impairment. 38 C.F.R. §§ 4.85, 4.86. Thus, the Board evaluated the Veteran's left ear hearing acuity using Table VIa considering his puretone threshold average only, in this case, 78; such results in Level VII hearing acuity. 38 C.F.R. § 4.8, Table VIa, DC 6100. Using Table VII, the result for Level III hearing acuity in the right ear and Level VII hearing acuity in the left ear, is a 20 percent rating for bilateral hearing impairment. See 38 C.F.R. § 4.85, Table VII, DC 6100. The Board is sympathetic to the Veteran's general assertion, by his appeal, that his bilateral hearing loss disability warrants a higher rating; indeed a higher rating is granted herein for the appellate period dated since November 15, 2021. To the extent that he seeks an even higher rating during any period of the appeal, there is no evidence of record demonstrating that the Veteran has shown bilateral hearing acuity that allows the Board to consider diagnostic criteria beyond such discussed above. In this regard, the Board notes that the assignment of disability evaluations for hearing impairment is a purely mechanical application of the rating criteria from which the Board cannot deviate. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992); see also Massey v. Brown, 7 Vet. App. 204, 208 (1994) (finding the Board may only consider the specific factors as are enumerated in the applicable rating criteria). In sum, the Board has considered whether a higher rating might be warranted for any period of time during the pendency of this appeal. A rating of 20 percent, and no more, for service-connected bilateral hearing loss is warranted since November 15, 2021; in this respect, his claim is granted. However, the evidence of record demonstrates that prior to November 15, 2021, the Veteran's bilateral hearing loss does not warrant an initial compensable rating. As the preponderance of the evidence is against the Veteran's claim, the claim must be denied in that respect. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). P.M. DILORENZO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Department of Veterans Affairs 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.