HEARING LOSS

Summary

The veteran, who served from June 1985 to January 1993, appeals the denial of increased ratings for bilateral hearing loss and unspecified depression. The Board reviewed the veteran's October 2020 VA examination for hearing loss, which indicated a noncompensable rating based on audiometric testing, but also noted an exceptional pattern in the right ear that, when applied to Table VIA, equated to a 20 percent disability rating. The Board found the evidence against a rating exceeding 20 percent, noting that the veteran's described difficulties were contemplated by the existing rating criteria and that the preponderance of evidence did not support a higher rating. For depression, the Board analyzed the veteran's May 2020 VA examination, where he reported memory impairment and depression symptoms, rarely leaving the house. The examiner noted slight slurred speech, memory impairment, poor insight and judgment, and intermittent disorientation, but no suicidal ideation or psychosis. The Board concluded that while the veteran experienced significant impairment, his symptoms did not rise to the level of total occupational and social impairment required for a 100 percent rating, most closely approximating a 70 percent rating. The Board found the evidence weighed against a 100 percent rating, denying the appeal for both conditions.

Rationale

October 2020 VA examination results applied to audiometric tables yielded a 20 percent rating.; Veteran's described difficulties are contemplated by rating criteria.; Preponderance of evidence weighs against claim for higher rating.

Full Decision Text

Citation Nr: 22000579
Decision Date: 01/05/22	Archive Date: 01/05/22

DOCKET NO. 15-35 367A
DATE: January 5, 2022

ORDER

Entitlement to a rating in excess of 20 percent for bilateral hearing loss disability from October 16, 2020 is denied.

Entitlement to a rating in excess of 70 percent for unspecified depression from May 26, 2020 is denied.

FINDINGS OF FACT

1. From October 16, 2020, the Veteran's bilateral hearing loss disability has been manifested by hearing acuity of no worse than Level VII in the right ear and no worse than Level III in the left ear.

2. From May 26, 2020, the Veteran's unspecified depression has been manifested by depression and memory impairment, resulting in occupational and social impairment with deficiencies in most areas. The severity, frequency, and duration of the Veteran's symptoms did not more closely approximate total occupational and social impairment.

CONCLUSIONS OF LAW

1. The criteria for a rating in excess of 20 percent for bilateral hearing loss disability from October 16, 2020 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100.

2. The criteria for a rating in excess of 70 percent for unspecified depression from May 26, 2020 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9435.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from June 1985 to January 1993. 

This case was previously before the Board in August 2021, at which time it was remanded for further development. The directives having been substantially complied with, the matter again is before the Board. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998).

Increased Rating

Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1.

3. Entitlement to a rating in excess of 20 percent for bilateral hearing loss disability from October 16, 2020

Evaluations of defective hearing range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of a controlled Maryland CNC speech discrimination test together with the average hearing threshold level measured by pure tone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hertz).  38 C.F.R. § 4.85, Diagnostic Code 6100.

To evaluate the degree of disability from bilateral service-connected hearing loss, the schedule establishes 11 auditory hearing acuity levels designated from Level I for essentially normal hearing acuity through Level XI for profound deafness.  38 C.F.R. § 4.85, Tables VI and VII.  

An exceptional pattern of hearing impairment occurs when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more.  38 C.F.R. § 4.86(a).  In that situation, 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.  Further, when the average 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, and that numeral will then be elevated to the next higher numeral.  38 C.F.R. § 4.86(b).

A October 2020 VA examination reveals that the Veteran reported difficulty
38 C.F.R. § 4.86(a).  In that situation, 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.  Further, when the average 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, and that numeral will then be elevated to the next higher numeral.  38 C.F.R. § 4.86(b).

A October 2020 VA examination reveals that the Veteran reported difficulty localizing and hearing out of his right ear even with hearing aids.  38 C.F.R. § 4.10; Martinak v. Nicholson, 21 Vet. App. 447 (2007).  The Veteran's Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows:  

October 2020	HERTZ

 	1000	2000	3000	4000	Avg	CNC

RIGHT	70	70	75	95	77.5	96

LEFT	35	35	50	100	55	100

Applying the results to Table VI, the findings yield a numeric designation of Level II in the right ear and Level I in the left ear.  Entering the resulting bilateral numeric designation of Level II for the right ear and Level I for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a noncompensable disability rating under Diagnostic Code 6100.  An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was shown in the right ear.  Applying the results to Table VIA yields Level VII in the right ear and level III in the left ear.  Entering the resulting bilateral numeric designation of Level VII for the right ear and Level III for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a 20 percent disability rating under Diagnostic Code 6100.  Here, Table VIA yields the highest rating for the right ear and Table VIA yields the highest rating for the left ear.

Based on the evidence above, a rating in excess of 20 percent for the Veteran's bilateral hearing loss disability is not warranted.  

The Board expressly acknowledges its consideration of the lay evidence of record when adjudicating this claim, including reports regarding difficulty hearing even with hearing aids.  The Veteran is competent to report difficulty with his hearing; however, disability ratings for hearing loss are derived from a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing.  See Lendenmann v. Principi, 3 Vet. App. 345 (1992).

The rating criteria contemplate speech reception thresholds and ability to hear spoken words on Maryland CNC testing. The functional impact that the Veteran describes, is contemplated by the rating criteria.  Doucette v. Shulkin, 28 Vet. App. 366 (2017).  The Veteran's main complaint is reduced hearing acuity and clarity, which is what is contemplated in the rating assigned.  See Rossy v. Shulkin, 29 Vet. App. 142, 145 (2017).

Accordingly, the preponderance of the most probative evidence is against the claim of entitlement to a rating in excess of 20 percent for hearing loss.  In reaching the conclusion above, the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

4. Entitlement to a rating in excess of 70 percent for unspecified depression from May 26, 2020

Under the General Formula for Mental Disorders (General Formula), the Board must conduct a "holistic analysis" that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130.  The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages.  Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). 

The issue in this appeal is whether the Veteran
 all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130.  The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages.  Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). 

The issue in this appeal is whether the Veteran's associated symptoms caused the level of impairment required for a disability rating of 100 percent.

The Board concludes that the Veteran's symptoms did not cause the level of impairment required for a disability rating of 100 percent.  The Veteran's symptoms more closely approximated the symptoms associated with a 70 percent rating, and resulted in a level of impairment that most closely approximated the level of impairment associated with a 70 percent rating. 

A noncompensable rating is assigned when a mental condition has been formally diagnosed, but symptoms are not severe enough to either require continuous medication, or to interfere with occupational and social functioning.

A 10 percent rating is assigned when mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of occasional stress, or symptoms controlled by medication cause occupational and social impairment.

A 30 percent rating is assigned when symptoms such as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, or recent events), cause occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and normal conversation).

A 50 percent rating is assigned when symptoms such as flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; or difficulty in establishing and maintaining effective work and social relationships cause occupational and social impairment with reduced reliability and productivity.

A 70 percent rating is assigned when symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); or inability to establish and maintain effective relationships cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood.

A 100 percent rating is assigned for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; or memory loss for names of close relatives, own occupation or own name.

The Veteran received a VA examination for mental health in May 2020. He reported difficulty with memory and symptoms of depression. He stated that he rarely left the house. The examiner observed that the Veteran displayed slightly slurred speech, memory impairment, and poor insight and judgment. The Veteran denied suicidal and homicidal ideation, and there was no evidence of psychosis during the examination. The examiner did note disorientation to time or place. 

The Board finds the level of impairment caused by the Veteran's symptoms most closely approximates the level associated with a 70 percent rating. The Veteran experienced occupational and social impairment with reduced reliability and productivity with deficiencies in most areas. To warrant a 100 percent rating, the Veteran would need to have total occupational and social impairment. This level of impairment is not shown here. Mental status examinations in VA and private treatment records and the May 2020 VA examination indicate that the Veteran experienced symptoms of depression and difficulty with memory, as well as poor insight and judgment. The Veteran repeatedly denied suicidal and homicidal ideation, and suicide screens were negative.  While the Veteran did experience some disorientation to time or place, the evidence suggest that this was intermittent and not representative of the Veteran's overall condition. The Veteran has maintained stable relationships with the family in his home, and he does not pose a risk of danger to himself or others. Total social and occupational impairment is not shown.  


 a 100 percent rating, the Veteran would need to have total occupational and social impairment. This level of impairment is not shown here. Mental status examinations in VA and private treatment records and the May 2020 VA examination indicate that the Veteran experienced symptoms of depression and difficulty with memory, as well as poor insight and judgment. The Veteran repeatedly denied suicidal and homicidal ideation, and suicide screens were negative.  While the Veteran did experience some disorientation to time or place, the evidence suggest that this was intermittent and not representative of the Veteran's overall condition. The Veteran has maintained stable relationships with the family in his home, and he does not pose a risk of danger to himself or others. Total social and occupational impairment is not shown.  

In short, the preponderance of the evidence weighs against finding that the severity, frequency, and duration of the Veteran's symptoms resulted in the level of impairment required for a 100 percent rating. The evidence is not in approximate balance. The criteria for a 100 percent or higher rating are not met and the appeal must be denied.

 

 

H. N. SCHWARTZ

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Creegan, Amanda

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.