Citation Nr: 22017334 Decision Date: 03/24/22 Archive Date: 03/24/22 DOCKET NO. 05-20 986 DATE: March 24, 2022 ORDER From October 5, 2015, through September 27, 2017, entitlement to a rating in excess of 90 percent for bilateral hearing loss is denied; thereafter, a 100 percent rating is granted. REMANDED Entitlement to special monthly compensation (SMC) for deafness in both ears from September 27, 2017, is remanded. FINDING OF FACT 1. Between October 5, 2015, through September 27, 2017, the Veteran's bilateral hearing loss disability resulted with hearing loss, at worse, in findings no greater than Roman Numeral X (right) and XI (left). 2. Beginning September 27, 2017, the Veteran's bilateral hearing loss disability resulted with hearing loss in findings of Roman Numeral XI (right) and XI (left). CONCLUSION OF LAW 1. Between October 5, 2015, through September 27, 2017, the criteria for an increased rating of 90 percent for bilateral hearing loss have not been met. 38 U.S.C. §1110, 1155; 38 C.F.R. §§ 4.1, 4.85, 4.86, Diagnostic Code (DC) 6100. 2. Beginning September 27, 2017, the criteria for an increased rating of 100 percent for bilateral hearing loss have been met. 38 U.S.C. § 1110, 1155; 38 C.F.R. §§ 4.1, 4.85, 4.86, DC 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1957 through July 1960. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from April 2003, March 2014, May 2014, March 2015, October 2020, and March 2021 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran was provided a hearing before Veterans Law Judges in June 2006 and March 2016. In a March 2021 decision, the Board denied entitlement to an increased rating in excess of 90 percent rating, from October 5, 2015, for the Veteran's bilateral hearing loss. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In a November 2021 Joint Motion for Partial Remand (JMPR), the parties agreed to vacate the March 2021 Board decision, in part, and remand the issue of entitlement to a rating in excess of 90 percent for bilateral hearing loss from October 5, 2015, back to the Board for further consideration as consistent with the JMPR. The appeal has since returned to the Board. 1. From October 5, 2015, through September 27, 2017, entitlement to a rating in excess of 90 percent for bilateral hearing loss is denied; thereafter, a 100 percent rating is granted. The Veteran contends that he is entitled to an increased rating for a bilateral hearing loss disability. Hearing loss is rated based on 38 C.F.R. § 4.85, Diagnostic Code 6100, which provides criteria for evaluating hearing impairment using puretone threshold averages and speech discrimination scores. Numeric designations are assigned based upon a mechanical use of tables found in 38 C.F.R. § 4.85. Scores are then matched against Table VI to find the numeric designation, then the designations are matched with Table VII to find the percentage evaluation to be assigned for the hearing impairment. To evaluate the degree of disability from defective hearing, the Rating Schedule establishes eleven auditory acuity levels from Level I for essentially normal acuity through Level XI for profound deafness. 38 C.F.R. §§ 4.85, 4.87, Tables VI, VIa, VII. Organic impairment of hearing acuity is measured by the results of controlled speech discrimination tests together with the average hearing threshold level as measured by a pure tone audiometry test in the frequencies of 1,000, 2,000, 3,000, and 4,000 cycles per second. See 38 C.F.R. § 4.85(a), (d). Ratings of hearing loss disability involve mechanical application of the rating criteria to the findings on official audiometry. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). The schedular evaluations are intended to make proper allowance for improvement by hearing aids.38C.F.R. §4.86. Exceptional patterns of hearing impairment are rated under 38 C.F.R. § 4.86. Specifically, an exceptional pattern of hearing loss is hearing loss of 55 decibels or more in each of the four specified frequencies (i.e., 1000, 2000, 3000, and 4000 Hertz), and hearing loss with a pure tone threshold of 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz. 38 C.F.R. § 4.86(a), (b). Turning to the evidence of record, in October 2015, the Veteran had a private audiogram that showed puretone thresholds in the right ear at 1000, 2000, 3000, and 4000 Hertz were of 85, 100, 110, and 120 decibels, respectively, for an average of 104 decibels. Puretone thresholds measured in the left ear at 1000, 2000, 3000, and 4000 Hertz were 95, 105, 120, and 120 decibels, respectively, with an average of 110 decibels. Speech discrimination scores were reported as 46 percent in the right ear and 42 percent in the left ear. The audiologist opined that the Veteran's hearing thresholds and word recognition has worsened in the right ear. At the March 2016 hearing, the Veteran testified that he has trouble understanding what others say, has problems hearing the TV or sirens, and requires stronger hearing aids. In September 2017, the Veteran had a private audiogram that showed puretone thresholds in the right ear at 1000, 2000, 3000, and 4000 Hertz were of 85, 115, 120, and 120 decibels, respectively, for an average of 110 decibels. Puretone thresholds measured in the left ear at 1000, 2000, 3000, and 4000 Hertz were 110, 120, 120, and 120 decibels, respectively, with an average of 117.50 decibels. Speech discrimination testing was not performed. In September 2019, the Veteran had a private audiogram that showed puretone thresholds in the right ear at 1000, 2000, 3000, and 4000 Hertz were of 120, 120, 120, and 120 decibels, respectively, for an average of 120 decibels. Puretone thresholds measured in the left ear at 1000, 2000, 3000, and 4000 Hertz were 120, 120, 120, and 120 decibels, respectively, with an average of 120 decibels. Speech discrimination testing was not performed. In August 2020, the Veteran was afforded another VA hearing loss examination. However, his hearing loss could not be tested. Later in August 2020, the Veteran underwent another private audiogram which showed puretone thresholds in the right ear at 1000, 2000, 3000, and 4000 Hertz were of 90, 100, 105, and 120 decibels, respectively, for an average of 104 decibels. Puretone thresholds measured in the left ear at 1000, 2000, 3000, and 4000 Hertz were 70, 95, 120, and 120 decibels, respectively, with an average of 101decibels. Speech discrimination scores were reported as 52 percent in the right ear and 50 percent in the left ear. Another private examination in August 2020 revealed puretone thresholds in the right ear at 1000, 2000, 3000, and 4000 Hertz were of 120, 120, 120, and 120 decibels, respectively, for an average of 120 decibels. Puretone thresholds measured in the left ear at 1000, 2000, 3000, and 4000 Hertz were 120, 120, 120, and 120 decibels, respectively, with an average of 120 decibels. Speech discrimination testing was not performed. Based on the aforementioned, the Board finds that a rating in excess of 90 percent, from October 5, 2015, through September 27, 2017, for the Veteran's bilateral hearing loss disability is not warranted. Beginning, September 27, 2017, a 100 percent is warranted. The Veteran's audiological testing results meets the criteria for an exceptional pattern of hearing under 38 C.F.R. § 4.86a. 38 C.F.R. § 4.86 notes that 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 and without regard to speech discrimination. Applying 38 C.F.R. § 4.85, Table VI to the October 2015 audiogram of record results in the assignment of a Roman Numeral X for the right ear and Roman Numeral X for the left ear in, which yields an 80 rating. Under Table VIA, the October 2015 audiogram results warrant a Roman Numeral X in the right ear and XI in the left ear, which yields a 90 percent rating. Beginning September 27, 2017, the Veteran's audiograms revealed, on average, hearing loss consistent with Roman Numeral XI severity in both ears under Table VIa. Audiograms after September 27, 2017 consistently documented level XI severity hearing loss for both ears. Such findings indicate that the Veteran's had worsened from previous audiograms. This level of severity warrants a 100 percent rating for the Veteran's bilateral hearing loss disability. Thus, between October 5, 2015, through September 27, 2017, a rating of 90 percent is warranted when applying the highest numeral under either Table VI or Table VIA. 38C.F.R. § 4.86(a). Beginning September 27, 2017, a rating of 100 percent is warranted under Table VIA. Entitlement to a rating in excess of 90 percent from October 5, 2015, through September 27, 2017, for bilateral hearing loss is denied. An increased rating of 100 percent from September 27, 2017, is granted. REASONS FOR REMAND 1. Entitlement to special monthly compensation (SMC) for deadness in both ears from September 27, 2017, is remanded. Finally, as noted the Veteran is in receipt of a 100 percent rating from September 27, 2017, for his bilateral hearing loss disability based heavily on the audiometric results obtained in private audiograms without speech discrimination results. The inquiry does not end with the grant of a 100 percent disability rating. Pursuant to Table VII, in the event a 100 percent disability rating is assigned, the Board must consider entitlement to SMC pursuant to 38 C.F.R. § 3.350. 38 C.F.R. § 4.85, Table VII. Under the provisions of 38 C.F.R. § 3.350 (a), special monthly compensation under 38 U.S.C. § 1114 (k) is payable for deafness of both ears. Deafness of both ears, having absence of air and bone conduction will be held to exist where examination in a VA-authorized audiology clinic under current testing criteria shows bilateral hearing loss is equal to or greater than the minimum bilateral hearing loss required for a maximum rating evaluation under the rating schedule. 38 C.F.R. § 3.350 (a)(5). Because the 100 percent rating granted herein for bilateral hearing loss was based on a private audiological examination without speech discrimination scores, remand is necessary to provide the Veteran an examination in a VA-authorized audiology clinic. The matters are REMANDED for the following action: 1. Arrange for an audiological examination in a VA-authorized audiology clinic to evaluate the current severity of the Veteran's bilateral hearing loss. The entire electronic claims file should be made available to, and be reviewed by, the designated audiologist. Puretone audiometry and Maryland CNC controlled speech discrimination test results must be provided in the report, to include an explanation regarding any testing that could not be completed. The examiner must provide a description of functional deficits caused by the Veteran's bilateral hearing loss. 2. After audiological testing at a VA-authorized audiology clinic is completed, adjudicate the issue of entitlement to special monthly compensation based on deafness of both ears beginning September 27, 2017. Bethany L. Buck Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N.B. Mmeje, Associate 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.