Citation Nr: 22017755 Decision Date: 03/26/22 Archive Date: 03/26/22 DOCKET NO. 09-41 458 DATE: March 26, 2022 ORDER Entitlement to an increased evaluation in excess of 10 percent prior to April 11, 2018, and in excess of 80 percent thereafter for bilateral hearing loss is denied. FINDINGS OF FACT 1. Prior to April 11, 2018, bilateral hearing loss has been manifested by auditory acuity levels of no worse than Level IX impairment in the right ear and Level III impairment in the left ear. 2. After April 11, 2018, bilateral hearing loss has been manifested by auditory acuity levels of no worse than Level XI impairment in the right ear and Level IX impairment in the left ear. CONCLUSION OF LAW The criteria for an evaluation in excess of 10 percent prior to April 11, 2018, and in excess of 80 percent thereafter for bilateral hearing loss are not met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § § 4.85, Diagnostic Code 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from August 1969 to February 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. This claim was previously before the Board in September 2017, at which time it was remanded for additional development. That development having been completed; this claim is once again before the Board. While on remand, in a March 2019 rating decision, the Agency of Original Jurisdiction (AOJ) assigned a higher 10 percent rating effective June 8, 2007, and 80 percent rating effective April 11, 2018, for the Veteran's service-connected bilateral hearing loss. (Initially, the Veteran was service connected for hearing loss in one ear only, but as the matter developed service connection for hearing loss was established in the other ear.) Because the ratings assigned to the Veteran's service-connected bilateral hearing loss are not the maximum ratings available for this disability, this claim remains in appellate status. See AB v. Brown, 6 Vet. App. 35 (1993). In December 2016, the Veteran previously testified before a Veterans Law Judge at a hearing at the RO. That Veterans Law Judge is no longer employed by the Board, having retired. The Veteran was notified of this and offered the opportunity for an additional hearing. The Veteran has not provided any response indicating that he would like a new hearing. Therefore, adjudication shall proceed accordingly. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. § Part 4. The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § § 4.1. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). A veteran may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. Where there is a question as to which of two evaluations shall be applied, the higher rating 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. The claimant bears the burden of presenting and supporting his/her claim for benefits. 38 U.S.C. § 5107 (a). See Fagan v. Shinseki, 573 F.3d 1282 (Fed. Cir. 2009). The Board shall consider all information and lay and medical evidence of record. 38 U.S.C. § 5107 (b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board shall give the benefit of the doubt to the claimant. Id; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran's bilateral hearing loss is rated as 10 percent disabling prior to April 11, 2018, and 80 percent disabling thereafter under the diagnostic code for hearing loss in accordance with the General Rating Formula for Impairment of Auditory Acuity. 38 C.F.R. § § 4.85, Diagnostic Code 6100. The severity of hearing loss is determined by comparison of audiometric test results with specific criteria. Id. Ratings of defective hearing range from 0 percent 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 1000, 2000, 3000, and 4000 Hertz. Id. The Schedule allows for audiometric test results to be translated into a numeric designation ranging from Level I to Level XI, for profound deafness, to rate the degree of disability from bilateral service-connected defective hearing. Id. In certain situations, the rating criteria provide for rating exceptional patterns of hearing impairment. If the pure tone threshold is greater than 55 decibels at each of four specified frequencies (1000, 2000, 3000, and 4000 Hertz ), VA must determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. If the pure tone threshold is 30 decibels or less at 1000 Hertz and simultaneously 70 decibels or more at 2000 Hertz, VA must determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral and then elevate that numeral to the next highest numeral for consideration. Each ear is evaluated separately. 38 C.F.R. § § 4.86. A review of the Veteran's outpatient treatment records reveals that he has had regular maintenance checkups for his hearing throughout the course of the appeal, but no formal audiometric testing was accomplished in that setting. The Veteran was provided with a VA examination in February 2008. Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 20 95 90 105 LEFT 15 25 55 70 90 The right ear had a pure tone average of 78 and the left ear had a pure tone average of 60. Speech audiometry revealed speech recognition ability of 92 percent in the right ear and 92 percent in the left ear. The Veteran was provided with a VA examination in March 2014. Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 40 50 95 90 95 LEFT 5 25 55 70 90 The right ear had a pure tone average of 83 and the left ear had a pure tone average of 60. Speech audiometry revealed speech recognition ability of 80 percent in the right ear and 88 percent in the left ear. The Veteran was provided with a VA examination in November 2016. Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 45 70 105 95 105 LEFT 25 30 55 65 85 The right ear had a pure tone average of 94 and the left ear had a pure tone average of 59. Speech audiometry revealed speech recognition ability of 59 percent in the right ear and 94 percent in the left ear. The Veteran was provided with a VA examination in April 2018. Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 55 70 105 105 105 LEFT 25 40 65 85 95 The right ear had a pure tone average of 96 and the left ear had a pure tone average of 71. Speech audiometry revealed speech recognition ability of 20 percent in the right ear and 40 percent in the left ear. Based on the above, the Board finds that the Veteran's bilateral hearing loss only meets the criteria for a 10 percent prior to April 11, 2018, and 80 percent thereafter. The Veteran's bilateral hearing loss, as shown in the February 2008 VA examination, is manifested by hearing impairment with a numeric designation of Level II in the right ear and Level II in the left ear. See 38 C.F.R. § § 4.85, Diagnostic Code 6100. This is because the Veteran has an average threshold, calculated in accordance with 38 C.F.R. § § 4.85 (d), of 78 and a speech recognition score of 92 for the right ear and an average threshold of 60 and speech recognition score of 92 for the left ear. When applied to Table VI, as directed by 38 C.F.R. § § 4.85 (d), the cross section of 78 in the first column and 92 in the first row reveals an assignment of II for the right ear and the cross section of 60 in the first column and 92 in the first row reveals an assignment of II for the left ear. When the assignment of Level II for the right ear and Level II for the left ear are applied to Table VII, as directed by 38 C.F.R. § § 4.85 (e), for the percentage evaluations and are intersected, an assignment of 0 percent is revealed. However, the Veteran's right ear hearing for the February 2008 VA examination demonstrated an exceptional pattern of hearing, as his threshold at 1000 hertz was below 30 and his threshold at 2000 hertz was above 70. Therefore, in accordance with 38 C.F.R. § § 4.86(b), the Veteran is entitled to consideration under Table VIA and raised to the next higher level as well, which results in the assignment of a higher Level VIII. When the assignment of Level VIII for the right ear and Level II for the left ear are applied to Table VII, as directed by 38 C.F.R. § § 4.85 (e), for the percentage evaluations and are intersected, an assignment of 10 percent is revealed. The Veteran's bilateral hearing loss, as shown in the March 2014 VA examination, is manifested by hearing impairment with a numeric designation of Level V in the right ear and Level III in the left ear. See 38 C.F.R. § § 4.85, Diagnostic Code 6100. This is because the Veteran has an average threshold, calculated in accordance with 38 C.F.R. § § 4.85 (d), of 83 and a speech recognition score of 80 for the right ear and an average threshold of 60 and speech recognition score of 88 for the left ear. When applied to Table VI, as directed by 38 C.F.R. § § 4.85 (d), the cross section of 83 in the first column and 80 in the first row reveals an assignment of V for the right ear and the cross section of 60 in the first column and 88 in the first row reveals an assignment of III for the left ear. When the assignment of Level V for the right ear and Level III for the left ear are applied to Table VII, as directed by 38 C.F.R. § § 4.85 (e), for the percentage evaluations and are intersected, an assignment of 10 percent is revealed. The Veteran's bilateral hearing loss, as shown in the November 2016 VA examination, is manifested by hearing impairment with a numeric designation of Level VIII in the right ear and Level II in the left ear. See 38 C.F.R. § § 4.85, Diagnostic Code 6100. This is because the Veteran has an average threshold, calculated in accordance with 38 C.F.R. § § 4.85 (d), of 94 and a speech recognition score of 59 for the right ear and an average threshold of 59 and speech recognition score of 94 for the left ear. When applied to Table VI, as directed by 38 C.F.R. § § 4.85 (d), the cross section of 94 in the first column and 59 in the first row reveals an assignment of VIII for the right ear and the cross section of 59 in the first column and 94 in the first row reveals an assignment of II for the left ear. When the assignment of Level VIII for the right ear and Level II for the left ear are applied to Table VII, as directed by 38 C.F.R. § § 4.85 (e), for the percentage evaluations and are intersected, an assignment of 10 percent is revealed. However, the Veteran's right ear hearing for the November 2016 VA examination demonstrated an exceptional pattern of hearing, as all thresholds from 1000 hertz to 4000 hertz were above 55. Therefore, in accordance with 38 C.F.R. § § 4.86(a), the Veteran is entitled to consideration under Table VIA as well, which results in the assignment of a higher Level IX. When the assignment of Level IX for the right ear and Level II for the left ear are applied to Table VII, as directed by 38 C.F.R. § § 4.85 (e), for the percentage evaluations and are intersected, an assignment of 10 percent is revealed. The Veteran's bilateral hearing loss, as shown in the April 2018 VA examination, is manifested by hearing impairment with a numeric designation of Level XI in the right ear and Level IX in the left ear. See 38 C.F.R. § § 4.85, Diagnostic Code 6100. This is because the Veteran has an average threshold, calculated in accordance with 38 C.F.R. § § 4.85 (d), of 96 and a speech recognition score of 20 for the right ear and an average threshold of 71 and speech recognition score of 40 for the left ear. When applied to Table VI, as directed by 38 C.F.R. § § 4.85 (d), the cross section of 96 in the first column and 20 in the first row reveals an assignment of XI for the right ear and the cross section of 71 in the first column and 40 in the first row reveals an assignment of IX for the left ear. When the assignment of Level XI for the right ear and Level IX for the left ear are applied to Table VII, as directed by 38 C.F.R. § § 4.85 (e), for the percentage evaluations and are intersected, an assignment of 80 percent is revealed. However, the Veteran's right ear hearing for the April 2018 VA examination demonstrated an exceptional pattern of hearing, as all thresholds from 1000 hertz to 4000 hertz were above 55. Therefore, in accordance with 38 C.F.R. § § 4.86(a), the Veteran is entitled to consideration under Table VIA as well, which results in the assignment of a lower Level IX. As this is lower than the standard assigned above, no further analysis need be undertaken as the greater benefit is afforded in the above finding of an assignment of 80 percent. No other audiometric or speech discrimination values acceptable for VA purposes were shown in the Veteran's medical treatment records during the time period in question. As such, based upon the audiometric testing of record, the Veteran has only shown hearing loss warranting, at most, an evaluation of 10 percent prior to April 11, 2018, and no more than 80 percent thereafter. Accordingly, at no time during the course of the appeal would the Veteran warrant any higher than a 10 percent evaluation prior to April 11, 2018, or higher than 80 percent thereafter. Therefore, his claim for a higher evaluation is denied. Although the Veteran believes that the severity of his hearing loss warrants a higher rating, crucially, as noted above, disability schedular ratings are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are performed. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Further, the schedule evaluates difficulty in understanding speech and perceiving sounds, as to contemplate the problems the Veteran describes. MICHAEL KILCOYNE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Dodd, Ryan 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.