Citation Nr: 22017394 Decision Date: 03/25/22 Archive Date: 03/24/22 DOCKET NO. 15-36 166 DATE: March 25, 2022 ORDER The claim for an initial compensable disability rating for bilateral hearing loss for the period prior to January 20, 2020, and in excess of 40 percent therefrom is denied. FINDINGS OF FACT 1. For the period prior to January 20, 2020, the Veteran had, at its highest degree of severity, Level III hearing impairment in both ears. 2. For the period from January 20, 2020, the Veteran had, at its highest degree of severity, Level VII hearing impairment in both ears under the exceptional pattern of hearing impairment. CONCLUSIONS OF LAW 1. For the period prior to January 20, 2020, the criteria for a compensable rating for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.10, 4.85, 4.86, Diagnostic Code 6100. 2. For the period from January 20, 2020, the criteria for a rating in excess of 40 percent for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5017; 38 C.F.R. §§ 3.102, 4.1, 4.10, 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from April 1963 to December 1964. In June 2019, the Veteran testified before the undersigned at a hearing conducted at a VA Regional Office. A copy of these proceedings is of record. In an October 2020 decision, the Board denied an initial compensable disability rating for bilateral hearing loss for the period prior to January 20, 2020, and in excess of 40 percent therefrom. The Veteran appealed to the United States Court of Appeals for Veterans Claims ("CAVC" or "the Court"). In August 2021, the Court vacated the Board decision and remanded the initial rating claim for additional development in compliance with the Joint Motion for Remand (JMR). In the JMR, the parties agreed that in its October 2020 decision, the Board had failed to obtain Social Security Administration (SSA) records regarding the Veteran's reported disability benefits from that agency. Of note, there was no suggestion in the JMR of any problem with the Board's analysis of the evidence, nor any suggestion that the Veteran's SSA records were relevant. There was also no suggestion of additional treatment or evaluation of the Veteran's hearing loss. As such, no basis was alleged, or found on development, to undermine the Board's previous conclusion. In December 2021, the Board remanded the appeal to obtain any outstanding SSA records and VA treatment reports, dated from July 2020 to the present, from the Fresno, California VA Medical Center. Thereafter, in a December 2021 response, SSA informed VA that it did not have any records of the Veteran. VA treatment records, dated from July 2020 to January 2022, from the Fresno, California VA Medical Center were received into the record. Thus, the requested development has been accomplished, and the appeal has returned to the Board for further appellate consideration. Under the applicable criteria, ratings for hearing loss are determined in accordance with the findings obtained on audiometric evaluations. Ratings for hearing impairment 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 pure tone audiometry tests in the frequencies 1,000, 2,000, 3,000, and 4,000 cycles per second. To evaluate the degree of disability from hearing impairment, the rating schedule establishes eleven auditory acuity levels designated from Level I for essentially normal acuity through Level XI for profound deafness. 38 C.F.R. § 4.85, Diagnostic Code 6100. Hearing tests will be conducted without hearing aids, and the results of above-described testing are charted on Table VI and Table VII. See 38 C.F.R. § 4.85. Exceptional patterns of hearing impairment are evaluated under 38 C.F.R. § 4.86. (a) When the pure tone 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. Each ear will be evaluated separately. (b) 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. That numeral will then be elevated to the next higher Roman numeral. Each ear will be evaluated separately. As noted above, under VA rating criteria, an adequate evaluation of impairment of hearing acuity rests upon the results of controlled speech discrimination tests, together with tests of the average hearing threshold levels at certain specified frequencies. See 38 C.F.R. § 4.85, Diagnostic Code 6100. Pertinent case law provides that the assignment of disability ratings for hearing impairment is to be derived by the mechanical application of the Ratings Schedule to the numeric designations assigned after audiometry evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345 (1992). Pertinent evidence includes an August 6, 2011 VA audiological evaluation. Audiometric testing to include, pure tone thresholds, in decibels, and speech recognition scores were reported as follows: HERTZ CNC 1000 2000 3000 4000 Avg % RIGHT 10 10 50 50 30 100 LEFT 10 10 40 40 25 100 With regard to a schedular rating, when applying the method for evaluating hearing loss to the results of the Veteran's audiological evaluations, the August 2011 audiometric evaluation revealed Level I hearing acuity in both ears, based on application of the reported findings to Table VI. Application of these findings to Table VII corresponds to an initial noncompensable disability rating under 38 C.F.R. § 4.85, Diagnostic Code 6100. As the August 2011 VA audiological evaluation does not reflect that the Veteran had 55 decibels or more in all pure tone thresholds of either ear from 1000-4000 Hertz, or 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz, exceptional hearing impairment has not been demonstrated in either ear during any of these evaluations and, thus, 38 C.F.R. § 4.86 is not for application in the appeal. Pertinent evidence includes an August 2013 VA audiological evaluation that revealed bilateral high frequency sensorineural hearing loss. On audiometric testing, pure tone thresholds, in decibels, and speech recognition scores were reported as follows: HERTZ CNC 1000 2000 3000 4000 Avg % RIGHT 40 45 45 65 49 76 LEFT 35 40 45 60 45 76 With regard to a schedular rating, when applying the method for evaluating hearing loss to the results of the Veteran's audiological evaluations, the August 2013 audiometric evaluation revealed Level III hearing acuity in both ears, based on application of the reported findings to Table VI. Application of these findings to Table VII corresponds to an initial noncompensable disability rating under 38 C.F.R. § 4.85, Diagnostic Code 6100. As the August 2013 VA audiological evaluation does not reflect that the Veteran had 55 decibels or more in all pure tone thresholds of either ear from 1000-4000 Hertz, or 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz, exceptional hearing impairment has not been demonstrated in either ear during any of these evaluations and, thus, 38 C.F.R. § 4.86 is not for application in the appeal. Pertinent evidence also includes a January 2020 audiological evaluation that revealed bilateral high frequency sensorineural hearing loss. On audiometric testing, pure tone thresholds, in decibels, and speech recognition scores were reported as follows: HERTZ CNC 1000 2000 3000 4000 Avg % RIGHT 65 75 85 95 80 92 LEFT 70 75 75 95 79 90 The January 2020 VA audiometric evaluation revealed Level II hearing acuity in the right ear and Level III hearing acuity in the left ear based on application of the reported findings to Table VI. Application of these findings to Table VII corresponds to a noncompensable disability rating under 38 C.F.R. § 4.85, Diagnostic Code 6100. However, as each ear demonstrated 55 decibels or more in all pure tone thresholds from 1000-4000 Hertz, meaning that exceptional hearing impairment was demonstrated in both ears. Thus, 38 C.F.R. § 4.86 is for application with respect to both ears for the January 2020 audiometric examination. Under the exceptional patterns of hearing impairment criteria, the January 2020 examination revealed Level VII in both ears. Application of these findings to Table VIA corresponds to a 40 percent disability rating for the service-connected bilateral hearing loss disability. The Board has considered the Veteran's lay statements and reports of hearing loss for this period on appeal. Notably, in Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007), it was the holding of the Court of Appeals for Veterans Claims (Court) that in addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in his or her final report. In this regard, it was noted during the Veteran's VA audiological evaluation in January 2020 that he experienced difficulty with conversations and family members. While the Board is sympathetic to the Veteran's assertions that he has difficulty hearing, the VA rating criteria are definitive and provide for a precise result based on audiometric test results. His subjective report of difficulty hearing under situational circumstances unfortunately cannot be the basis for an evaluative rating. The Board is bound to apply the VA rating schedule, under which the rating criteria are defined by audiometric test findings involving hearing acuity in a controlled laboratory environment. The rating criteria are designed to evaluate difficulty hearing, the complaint put forth by the Veteran. Here, the Veteran's 40 percent rating was assigned as of the date of the first date it was shown by audiometric testing that he met the criteria for a compensable rating. While the Veteran has asserted that he noticed his hearing worsening between 2013 and 2020, there is simply no mechanism to quantify when his hearing acuity deteriorated to the point that a compensable rating could be assigned. To this end, when the Veteran underwent audiometric testing in 2013, he was shown to have a hearing loss disability in both ears, it simply was not compensable at that time. (Continued on next page) Accordingly, the Board finds that a preponderance of the evidence is against a compensable rating for the service-connected bilateral hearing loss for the period prior to January 20, 2020 and a rating in excess of 40 percent therefrom. As the preponderance of the evidence is against the claim, the claim must be denied. 38 C.F.R. § 4.85, Diagnostic Code 6100. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Carole Kammel, 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.