Citation Nr: 22019987 Decision Date: 04/03/22 Archive Date: 04/03/22 DOCKET NO. 17-10 007 DATE: April 3, 2022 ORDER Entitlement to an initial rating in excess of zero percent for service-connected bilateral hearing loss for the period from April 22, 2014, to January 30, 2020, is denied. Entitlement to a rating in excess of 10 percent for service-connected bilateral hearing loss for the period from January 31, 2020, to October 12, 2021, is denied. Entitlement to a rating in excess of 50 percent for service-connected bilateral hearing loss from October 13, 2021, to the present, is denied. FINDINGS OF FACT 1. For the rating period from April 22, 2014, to January 30, 2020, the Veteran's bilateral hearing loss yielded values of Level I hearing loss in the right ear and Level I hearing loss in the left ear. 2. For the rating period from January 31, 2020, to October 12, 2021, the Veteran's bilateral hearing loss yielded values of Level IV hearing loss in the right ear and Level V hearing loss in the left ear. 3. For the increased rating period from October 13, 2021, to the present, the Veteran's bilateral hearing loss yielded values of Level VII hearing loss in the right ear and Level IX hearing loss in the left ear. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of zero percent for bilateral hearing loss from April 22, 2014, to January 30, 2020, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.85, Diagnostic Code 6100. 2. The criteria for a rating in excess of 10 percent for bilateral hearing loss from January 31, 2020, to October 12, 2021, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.85, Diagnostic Code 6100. 3. The criteria for a rating in excess of 50 percent for bilateral hearing from October 13, 2021, to the present, loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.85, Diagnostic Code 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from July 1965 to July 1967. The Veteran's claim stems from an August 2015 VA rating decision, where the Veteran was awarded entitlement to service connection for bilateral hearing loss, with an assigned effective date of April 22, 2014. In May 2019, the Veteran testified before the undersigned Veterans Law Judge (VLJ) in a hearing held via videoconference. In May 2019, the Board remanded this matter for additional development, to include a medical examination. The issue has now been returned to the Board for further appellate consideration. As is further discussed below, the Board finds that there has been substantial compliance with the directives of the prior remand. See Stegall v. West, 11 Vet. App. 268 (1998). The October 2021 rating decision awarded a rating of 10 percent for the bilateral hearing loss, effective from January 31, 2020, and an evaluation of 50 percent effective from October 13, 2021. This is not a full grant of the benefit sought, where the Veteran is presumed to seek the maximum available benefit for a disability and, as such, this claim is still considered to be on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). Initial Rating The Veteran is seeking an adjustment in his rating for bilateral hearing loss, that he contends has worsened since the assignment of the original rating in July 2015 and subsequently increased in October 2021. See December 2015 Notice of Disagreement; May 2019 Board Videoconference. The Veteran through his representative contends that his hearing loss is incorrectly rated and that he should be rated at 60 percent not 50 percent. See March 2022 Appellate Brief. Applicable Laws and Regulations Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Evaluations of bilateral hearing loss range from noncompensable (i.e., 0 percent) to 100 percent based on organic impairment of hearing acuity, as measured by a controlled speech discrimination test (Maryland CNC) and the average hearing threshold, as measured by puretone audiometric tests at the frequencies of 1,000, 2,000, 3,000 and 4,000 Hertz. The rating schedule establishes 11 auditory acuity levels designated from Level I, for essentially normal hearing acuity, through level XI for profound deafness. Under 38 C.F.R. § 4.85, Table VI (Numeric Designation of Hearing Impairment Based on Puretone Threshold Average and Speech Discrimination) is used to determine a Roman numeral designation (I through XI) for hearing impairment based on a combination of the percent of speech discrimination (horizontal rows) and the puretone threshold average (vertical columns). The Roman numeral designation is located at the point where the percentage of speech discrimination and puretone average intersect. 38 C.F.R. § 4.85(b). The puretone threshold average is the sum of the puretone thresholds at 1,000, 2,000, 3,000 and 4,000 Hertz, divided by 4. This average is used in all cases to determine the Roman numeral designation for hearing impairment. 38 C.F.R. § 4.85(d). Table VII (Percentage Evaluations for Hearing Impairment) is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment of each ear. The horizontal rows represent the ear having the better hearing and the vertical columns the ear having the poor hearing. The percentage evaluation is located at the point where the rows and column intersect. 38 C.F.R. § 4.85(e). VA regulations also provide that, in cases of exceptional hearing loss, when the puretone thresholds at each of the four specified frequencies (1,000, 2,000, 3,000 and 4,000 Hertz) is 55 decibels or more, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or VIa, whichever results in the higher numeral. Each ear will be considered separately. 38 C.F.R. § 4.86(a). The provisions of 38 C.F.R. § 4.86(b) further provide that, when the puretone threshold is 30 decibels or less at 1,000 Hertz, and 70 decibels or more at 2,000 Hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or VIa, whichever results in the higher numeral. That numeral will then be elevated to the next higher Roman numeral. Each ear will be considered separately. Here, however, the empirical data discussed below does not show that the Veteran's puretone readings allow for application of this regulation for exceptional patterns of hearing loss. As such, further discussion is not warranted. Separate ratings may be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. 3 8 C.F.R. § 4.2; Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). Staged ratings have been assigned for the service-connected bilateral hearing loss of zero percent from April 22, 2014, 10 percent from January 31, 2020, and 50 percent from October 13, 2021 forward. Procedural and Factual Background The Veteran is seeking a higher initial rating for his service-connected bilateral hearing loss. By way of history, the Veteran was granted a zero percent rating in a July 2015 rating decision, effective from April 22, 2014. The Veteran's zero percent rating was thereafter adjusted in an October 2021 VA rating decision, where his rating was adjusted to 10 percent effective January 31, 2020, and then 50 percent, effective October 13, 2021. The findings of the July 2015 VA examination report reflect the puretone thresholds, in decibels, as follows: HERTZ 1000 2000 3000 4000 AVG Hz RIGHT 15 50 55 65 46.25 LEFT 15 60 65 75 53.75 The Maryland CNC test was used, and the Veteran's speech discrimination score was 94 percent in the right ear and 94 percent in the left ear. The average puretone threshold reading for the right ear was 46 decibels and the left ear was 54 decibels. Application of these puretone threshold average levels and speech recognition ability (percentage of discrimination) using Table VI yield a finding of Level I in the right ear and Level I in the left ear. In January 2020, the Veteran underwent an audiological examination at the Jacksonville medical center. See January 2020 Jacksonville VA Medical Records at 66. The examiner noted the Veteran's speech recognition threshold in the right ear was 30 decibels and 35 decibels in the left ear. Furthermore, the examiner noted the Veteran's word recognition score in the right ear was 68 percent and 60 percent in the left ear. Id. The findings of the October 2021 VA examination report reflects the puretone thresholds, in decibels, as follows: HERTZ 1000 2000 3000 4000 AVG Hz RIGHT 40 75 80 85 70.00 LEFT 45 80 80 90 73.75 The Maryland CNC test was used, the Veteran's speech discrimination score was 60 percent in the right ear and 40 percent in the left ear. The average puretone threshold reading for the right ear was 70 decibels and the left ear was 74 decibels. Application of these puretone threshold average levels and speech recognition ability (percentage of discrimination) using Table VI yielded a finding of Level VII in the right ear and Level IX in the left ear. Analysis Prior to January 31, 2020 Based on the objective findings of the VA examination reports of record, the Board finds that the Veteran is not entitled to a compensable rating for bilateral hearing loss prior to January 30, 2020 as he has been found to have at worst Level I hearing loss in the right ear and Level I hearing loss in the left ear, which corresponds to the currently assigned zero percent rating. from January 31, 2020 Again, based on the objective findings of the VA examination reports of record, the Board finds that the Veteran is not entitled to a rating in excess of 10 percent for bilateral hearing loss from January 30, 2020 through October 12, 2021 as he has been found to have at worst Level IV hearing loss in the right ear and Level V hearing loss in the left ear, which corresponds to the currently assigned 10 percent rating. from October 13, 2021 Lastly, based on the objective findings of the VA examination reports of record, the Board finds that the Veteran is not entitled to a rating in excess of 50 percent for bilateral hearing loss from October 13, 2021 as he has been found to have at worst, Level VII hearing loss in the right ear and Level IV hearing loss in the left ear, which corresponds to the currently assigned 50 percent rating. The Board acknowledges the Veteran's contention that he is entitled to a compensable rating for his bilateral hearing loss. Specifically, where the Veteran has reported that his hearing has worsened. See May 2019 Board Videoconference. Notably, the claim was remanded to assess such. However, as noted above, the assignment of the disability rating for hearing impairment is derived from a mechanical formula based on levels of puretone threshold average and speech discrimination, and it does not demonstrate that the Veteran's rating for bilateral hearing loss warrants a compensable rating for the period prior to January 31, 2020, a rating in excess of 10 percent from January 31, 2020 through October 12, 2021, and a rating in excess of 50 percent from October 13, 2021. Furthermore, the Court has held that "the rating criteria for hearing loss contemplates the functional effects of decreased hearing and difficulty understanding speech in an everyday work environment"which "are precisely the effects that VA's audiometric tests are designed to measure'' and that "when a claimant's hearing loss results in an inability to hear or understand speech or to hear other sounds in various contexts, those effects are contemplated by the schedular rating criteria." See Doucette v. Shulkin, 28 Vet. App. 366, 369 (2017) ("[T]he [schedular] rating criteria for hearing loss contemplate the functional effects of decreased hearing and difficulty understanding speech in an everyday work environment." The Board finds that the VA examinations are probative evidence regarding the severity of the Veteran's bilaterally hearing loss disability, where they are in compliance with the regulation, the VA examinations were performed by state-licensed audiologists and include the controlled speech discrimination test using the Maryland CNC test. The Board does not discount the difficulties the Veteran states he has with his auditory acuity. However, the Board must base its determination on the basis of the results of the audiology studies of record. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Accordingly, the Board finds entitlement to an initial compensable rating from April 22, 2014 through January 30, 2020, a rating in excess of 10 percent from January 31, 2020, through October 12, 2021, and a rating in excess of 50 percent from October 13, 2021, is not warranted. In reaching its conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the evidence is not in approximate balance, the benefit-of-the-doubt doctrine is not for application, and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. at 49, 55 (1990). YVETTE R. WHITE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board David B. Scheirich, 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.