HEARING LOSS

PATRICK M. JOHNSON · 2022 · Case ID: 22050642

GRANTED

Summary

The veteran, who served from March 1971 to April 1972, appeals the denial of increased disability ratings for bilateral sensorineural hearing loss. The veteran contended that his hearing loss was more severe than currently rated, particularly noting intermittent episodes of complete hearing loss in his left ear. The Board reviewed multiple VA examinations conducted in June 2016, August 2017, November 2019, and May 2022. These examinations provided varying audiometric results. The Board applied the benefit of the doubt, presuming a Level XI designation for the left ear based on the veteran's reports of intermittent complete hearing loss. For the right ear, the Board utilized the audiometric results from the November 2019 examination, which showed an average pure tone of 85 decibels, yielding a Level VIII designation. Applying Table VII of 38 C.F.R. § 4.85, the Board determined that a 10 percent rating was warranted prior to November 7, 2019, and a 70 percent rating was warranted from November 7, 2019, onwards. The Board found the veteran competent to report hearing difficulties, but noted that ratings are based on mechanical application of audiometric testing results. The decision granted entitlement to a 10 percent rating for the period prior to November 7, 2019, and a 70 percent rating from November 7, 2019, forward.

Rationale

Veteran's claim for increased rating for bilateral hearing loss reviewed.; Audiometric results from multiple VA exams considered.; Benefit of the doubt applied to presume Level XI for left ear due to reported intermittent complete hearing loss.; November 2019 VA exam results used for right ear (Level VIII).; Bilateral numeric designation of Level II (right) and Level XI (left) applied to Table VII of 38 C.F.R. § 4.85.; Resulting designations equate to 10 percent rating prior to Nov 7, 2019, and 70 percent rating from Nov 7, 2019.

Special Benefit

NO SPECIAL BENEFIT

Docket No.

14-42 910

Full Decision Text

Citation Nr: 22050642
Decision Date: 09/06/22 Archive Date: 09/06/22

DOCKET NO. 14-42 910
DATE: September 6, 2022

ORDER

Prior to November 7, 2019, entitlement to a 10 percent rating for bilateral sensorineural hearing loss is granted, subject to the laws and regulations governing the award of monetary benefits.

Since November 7, 2019, entitlement to a 70 percent rating for bilateral sensorineural hearing loss is granted, subject to the laws and regulations governing the award of monetary benefits.

FINDINGS OF FACT

1. Prior to November 7, 2019, the Veteran's bilateral hearing loss disability was manifested by hearing acuity of no worse than Level II in the right ear and Level XI in the left ear.

2. Since November 7, 2019, the Veteran's bilateral hearing loss disability was manifested by hearing acuity of no worse than Level VIII in the right ear and Level XI in the left ear.

CONCLUSIONS OF LAW

1. Prior to November 7, 2019, the criteria for entitlement to a disability rating of 10 percent, but no higher, for bilateral sensorineural hearing loss were met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code (DC) 6100.

2. Since November 7, 2019, the criteria for entitlement to a disability rating of 70 percent, but no higher, for bilateral sensorineural hearing loss were met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code (DC) 6100.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from March 1971 to April 1972.

This issue was last before the Board in January 2022, at which time it was remanded for further development. There has been substantial compliance with the remand directives, and the Board will proceed with adjudication. Stegall v. West, 11 Vet. App. 268 (1998).

Entitlement to initial increased ratings for the bilateral hearing loss disability.

The Veteran contends that he is entitled to higher ratings because his hearing loss is more severe than contemplated by the presently assigned evaluations during the period on appeal. For the reasons that follow, the Board finds that entitlement to increased ratings are warranted, as discussed in more detail below.

Ratings for service-connected disabilities are determined by comparing the veteran's symptoms with criteria listed in VA's Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. Separate diagnostic codes identify the various disabilities. 38 C.F.R. Part 4. When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991).

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, DC 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.
(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).

The Veteran filed his increased rating claim on May 23, 2016. When deciding an increased rating claim, the Board can consider evidence back to the date of claim and can also look back on evidence within one year before the date of claim. 38 C.F.R. § 3.400 (o)(2); Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010).

Initially, the Board observes that the Veteran's claim was remanded on multiple occasions to evaluate the severity of his hearing loss in light of a November 2017 VA treatment record indicating that the Veteran had recently experienced intermittent episodes of complete loss of hearing in his left ear. In evaluating the present appeal, the Board will afford the Veteran the benefit of the doubt and presume he has suffered from complete hearing loss in his left ear and assign him a Level XI for his left ear hearing loss throughout the period on appeal. See Mittleider v. West, 11 Vet. App. 181 (1998).

Turning to the evidence of record, in June 2016, the Veteran underwent a VA examination to evaluate the severity of his hearing loss. The Veteran's pure tone thresholds, in decibels, were as follows:

HERTZ

500 1000 2000 3000 4000

RIGHT 25 35 40 70 75

LEFT 20 20 20 30 25

Speech audiometry using the Maryland CNC word list revealed speech recognition ability of 84 percent in the right ear and of 94 percent in the left ear. The average pure tone for the right ear was 55 decibels and 24 decibels for the left.

Applying the results to Table VI, the findings yield a numeric designation of Level II in the right ear. As discussed above, the Veteran is presumed to have a designation of Level XI in the left ear because of his reports of intermittent complete left ear hearing loss. Entering the resulting bilateral numeric designation of Level II for the right ear and Level XI for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a 10 percent disability rating under Diagnostic Code 6100.

In August 2017, the Veteran underwent another VA examination where he reported more hearing loss in his right ear than his left, as well as problems understanding what is being said and asking to have things repeated to him. The Veteran's pure tone thresholds, in decibels, were as follows:

HERTZ

500 1000 2000 3000 4000

RIGHT 40 40 40 75 110

LEFT 30 30 25 25 40

Speech audiometry using the Maryland CNC word list revealed speech recognition ability of 96 percent in the right ear and of 100 percent in the left ear. The average pure tone for the right ear was 66 decibels and 30 decibels for the left.

On November 7, 2019, the Veteran underwent a VA examination where he reported having difficulty hearing people when there is background noise and asking people to repeat themselves. The Veteran's pure tone thresholds, in decibels, were as follows:

HERTZ

500 1000 2000 3000 4000

RIGHT 65 75 85
left ear because of his reports of intermittent complete left ear hearing loss. Entering the resulting bilateral numeric designation of Level II for the right ear and Level XI for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a 10 percent disability rating under Diagnostic Code 6100.

HERTZ

500 1000 2000 3000 4000

RIGHT 65 75 85 90 90

LEFT 60 65 65 65 65

Speech audiometry using the Maryland CNC word list revealed speech recognition ability of 64 percent in the right ear and of 60 percent in the left ear. The average pure tone for the right ear was 85 decibels and 65 decibels for the left ear.

The results show an exceptional pattern of hearing impairment in the right ear, so either Table VI or Table VIA, whichever results in the higher numeral, is used to determine the designation. 38 C.F.R. § 4.86 (a). In this case, using either table results in the identical numerical score of Level VIII in the right ear. As discussed above, the Veteran is presumed to have a designation of Level XI in the left ear because of his reports of intermittent complete left ear hearing loss. Table VII of 38 C.F.R. § 4.85 provides for the assignment of a 70 percent evaluation for these numeric scores.

On May 9, 2022, the Veteran underwent a VA examination where he reported that his wife gets angry with him because of his hearing trouble, and he reported needing to wear his hearing aids every day. When asked to address the Veteran's reports of intermittent episodes of complete loss of hearing in the left ear, the examiner noted the Veteran's statements that he still experienced "dropouts in hearing, lasting from 1 hour to a full day at a time." The Veteran's pure tone thresholds, in decibels, were as follows:

HERTZ

500 1000 2000 3000 4000

RIGHT 80 80 90 95 95

LEFT 80 85 90 90 90

Speech audiometry using the Maryland CNC word list revealed speech recognition ability of 56 percent in the right ear and of 68 percent in the left ear. The average pure tone for the right ear was 90 decibels and 89 decibels for the left ear.

Based on the evidence above, the Board finds that for the period prior to November 7, 2019, a disability rating of 10 percent, but no higher, for the Veteran's bilateral sensorineural hearing loss is warranted, subject to the laws and regulations governing the award of monetary benefits. For the period since November 7, 2019, the Board further finds that a disability rating of 70 percent, but no higher, is also warranted, subject to the laws and regulations governing the award of monetary benefits.

The Board expressly acknowledges its consideration of the lay evidence of record when adjudicating this claim, including the Veteran's difficulties in understanding what is said to him in conversations. 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 staged ratings assigned. See Rossy v. Shulkin
him in conversations. 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).

(Continued on the next page)

Accordingly, the most probative evidence is in favor of the assignment of a 10 percent rating prior to November 7, 2019, and the assignment of a 70 percent rating since that time for the Veteran's bilateral sensorineural hearing loss. To this extent only, the Veteran's claim is granted.

Patrick M. Johnson

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board J. Komperda, 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.

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