HEARING LOSS

Summary

The veteran, who served from January 1997 to January 2001, appeals the denial of an initial disability rating in excess of 10 percent for bilateral hearing loss and the denial of service connection for a right ankle disability. Regarding the bilateral hearing loss, the veteran contended that his hearing was worse than reflected in the October 2020 VA audiological examination and that the examination did not adequately capture the severity of his impairment. The Board reviewed the October 2020 VA examination results, which indicated Level IV hearing in the right ear and Level V in the left, warranting a 10 percent disability rating. The Board also considered a private audiological examination from October 2022, which showed higher pure tone thresholds but was deemed inadequate for VA rating purposes due to the use of a different speech discrimination test. The Board found the veteran's lay testimony regarding his hearing difficulties was competent but not sufficient to override the objective audiometric results from the adequate VA examination. The Board concluded the weight of the evidence was against the claim for a rating higher than 10 percent. For the right ankle disability, the Board found the October 2020 VA examination and etiology opinion inadequate because it did not fully consider the veteran's reported history of chronic pain and numbness since service, nor did it adequately address the longevity of his symptoms. The Board remanded the right ankle claim for a new VA examination and opinion, specifically asking the examiner to consider the veteran's reported history, the October 2020 VA findings, and the October 2022 private audiological results, and to provide a nexus opinion regarding the etiology of the current disability.

Rationale

VA audiological examination in October 2020 was adequate.; Results indicated Level IV hearing in right ear and Level V in left, warranting 10% rating.; Private audiological examination in October 2022 was inadequate due to different testing methodology.; Veteran's lay testimony regarding hearing difficulties was competent but not sufficient to override objective audiometric results.

Full Decision Text

Citation Nr: A26037149
Decision Date: 04/21/26	Archive Date: 04/21/26

DOCKET NO. 210114-135149
DATE: April 21, 2026

ORDER

Entitlement to an initial disability rating in excess of 10 percent for service-connected bilateral hearing loss is denied.

REMANDED

Entitlement to service connection for a right ankle disability is remanded.

FINDING OF FACT

Throughout the entire appellate period, the Veteran's bilateral hearing loss has been manifested by hearing acuity of no worse than Level IV in the right ear and Level V in the left ear. 

CONCLUSION OF LAW

The criteria for an initial disability rating in excess of 10 percent for bilateral hearing loss 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.

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REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from January 1997 to January 2001.

In the January 2021 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Hearing docket.  A Board hearing was held on August 27, 2024.

Therefore, the Board may only consider the evidence of record at the time of the October 2020 agency of original jurisdiction (AOJ) supplemental claim decision on appeal, as well as any evidence submitted by the Veteran or his attorney at the hearing or within 90 days following the hearing.  38 C.F.R. §?20.302.  If evidence was submitted either (1) during the period after the AOJ issued the supplemental claim decision on appeal and prior to the Board hearing, or (2) more than 90 days following the hearing, the Board did not consider it in its decision.  38 C.F.R. §§ 20.300, 20.302(a), 20.801.

Regarding his claim for an initial increased disability rating for service-connected bilateral hearing loss, if the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence.  38 C.F.R. § 3.2501.  If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered.  Id.  Specific instructions for filing a Supplemental Claim are included with this decision. 

However, because the Board is remanding the claim for service connection for a right ankle disability, any evidence the Board could not consider will be considered by the AOJ in the adjudication of that claim.  38 C.F.R. § 3.103(c)(2)(ii).

Increased Initial Disability Rating

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability.  38 U.S.C. § 1155; 38 C.F.R. § 4.1.  Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning the higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity, 38 C.F.R. § 4.10.  See Schafrath v. Derwinski, 1 Vet. App. 589 (1991).

Separate evaluations may be assigned for separate periods of time based on the facts found, a practice known as "staged ratings," which are appropriate for any rating claim when the factual findings show distinct time periods during the appeal where the disability exhibits symptoms that warrant different ratings.  Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).  

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of
 § 4.10.  See Schafrath v. Derwinski, 1 Vet. App. 589 (1991).

Separate evaluations may be assigned for separate periods of time based on the facts found, a practice known as "staged ratings," which are appropriate for any rating claim when the factual findings show distinct time periods during the appeal where the disability exhibits symptoms that warrant different ratings.  Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).  

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant.  38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021).

The Veteran and his attorney contend that he is entitled to an initial disability rating higher than 10 percent for his bilateral hearing loss.  The Veteran asserts he cannot wear his hearing aids as often as he needs to because they are painful and when not wearing his hearing aids, he can barely hear anything.  He contends that with or without the hearing aids, his hearing is more severe than the current rating reflects.  His hearing loss affects his ability to work as he has missed critical communications over the radio from co-workers.  Finally, the Veteran contends that the October 2020 VA audiological examination results do not adequately reflect the severity of his bilateral hearing loss, as his hearing that day was better than it is normally.  

Bilateral hearing loss is evaluated under Diagnostic Code 6100.  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.  Each ear will be evaluated separately.  38 C.F.R. § 4.86(b).  

The Veteran was afforded a VA audiological examination in October 2020.  At that time, he reported that he had trouble hearing and understanding others both during his daily life activities and his work activities.  The pure tone thresholds, in decibels, as well as the Maryland CNC speech discrimination test results were as follows: 

	HERTZ

 	1000	2000	3000	4000	Avg	CNC

RIGHT	40	35	45	50	43	72%

LEFT	45	35	40	45	41	64%

The results of the October 2020 VA examination are adequate, but do not reflect hearing impairment that warrants an initial disability rating in excess of 10 percent for bilateral hearing loss.  Application of Table VI to the October 2020 audiometry results reflect Level IV hearing in the right ear and Level V hearing in the left ear.  When these numeric designation levels are combined in Table VII, they indicate a 10 percent disability rating is warranted.  Likewise, the October 2020 examination results do not show that the Veteran's hearing loss qualified as an exceptional pattern of hearing impairment in either ear under 38 C.F.R. § 4.86, as the pure tone thresholds at each of the frequencies of 1000, 2000, 3000, and 4000 Hertz were not 55
 reflect hearing impairment that warrants an initial disability rating in excess of 10 percent for bilateral hearing loss.  Application of Table VI to the October 2020 audiometry results reflect Level IV hearing in the right ear and Level V hearing in the left ear.  When these numeric designation levels are combined in Table VII, they indicate a 10 percent disability rating is warranted.  Likewise, the October 2020 examination results do not show that the Veteran's hearing loss qualified as an exceptional pattern of hearing impairment in either ear under 38 C.F.R. § 4.86, as the pure tone thresholds at each of the frequencies of 1000, 2000, 3000, and 4000 Hertz were not 55 decibels or more and the Veteran's hearing loss in either ear was not shown to have both a pure tone threshold at 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz.  

During the 90 day window after the hearing, the Veteran submitted an October 2022 private audiological examination.  The private audiologist completed audiometric testing and recorded those results in graphical form.  The Board may interpret results from a private audiometric graph.  See Savage v. Shinseki, 24 Vet. App. 259, 272-73 (2011).  Based on the Board's reading of the air conduction results from this audiometric graph, the Veteran's pure tone thresholds, in decibels, were as follows:  

 	 HERTZ

 	1000	2000	3000	4000	Avg.

RIGHT	50	70	70	70	65

LEFT	55	65	70	75	66

However, the October 2022 evaluation indicates that the speech discrimination testing was conducted using the CID W-22 word list, not the Maryland CNC word list.  Because the October 2022 private evaluation did not utilize the Maryland CNC word list as required under 38 C.F.R. § 4.85(a), the audiological examination is not wholly adequate for VA rating purposes.  However, the Board has considered the pure tone threshold results.  These were obtained by a qualified audiologist and include the necessary frequency-specific data for evaluating hearing loss.  While the results do not indicate an exceptional pattern of hearing impairment for the Veteran's right ear, they do indicate such for his left ear hearing loss under § 4.86(a).  However, since there is not an exceptional pattern of hearing impairment in the right ear, the Board is unable to evaluate the Veteran's bilateral hearing loss using the October 2022 audiometry results.  

The Board has considered the Veteran's report of his symptoms of trouble hearing and understanding others.  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.  Thus, the functional impact that the Veteran describes is contemplated by the rating criteria.  Doucette v. Shulkin, 28 Vet. App. 366 (2017); see Rossy v. Shulkin, 29 Vet. App. 142, 145 (2017).  

The Board also acknowledges the Veteran's arguments that the October 2020 VA hearing test does not reflect the severity of his hearing impairment as he believes his hearing was better on the day of the examination.  However, as noted above, 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 Veteran has not argued the results of the October 2020 examination were inaccurate or invalid, but that his hearing was better than usual the day of testing.  However, there is no objective evidence to support the Veteran's contentions, and he is not competent in this case to determine the results were not reflective of the overall severity of his hearing impairment, as such is a matter of medical complexity requiring the opinion of a medical provider.  See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); see also Layno v. Brown, 6 Vet. App. 465, 470 (1994) ("Generally, lay testimony is not competent to prove that which would require specialized knowledge or training.").  Although the October 2022 private audiology results indicate higher pure tone thresholds than what was recorded during the October 202
 is no objective evidence to support the Veteran's contentions, and he is not competent in this case to determine the results were not reflective of the overall severity of his hearing impairment, as such is a matter of medical complexity requiring the opinion of a medical provider.  See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); see also Layno v. Brown, 6 Vet. App. 465, 470 (1994) ("Generally, lay testimony is not competent to prove that which would require specialized knowledge or training.").  Although the October 2022 private audiology results indicate higher pure tone thresholds than what was recorded during the October 2020 VA examination, the private testing was completed two years later and thus does not provide objective evidence that his hearing in October 2020 was more severe than what the VA examination report shows.  Additionally, although the October 2022 private results reflect a potential worsening of his hearing loss, since the results were submitted subsequent to the decision on appeal, there was no pre-decisional duty to assist error in not getting another examination, as the October 2020 examination was adequate and a worsening of the condition was not indicated prior to the decision on appeal.  38 C.F.R. § 20.802(a).

The Veteran's main complaint throughout the pendency of the appeal is reduced hearing acuity and clarity, which is what was objectively tested in the October 2020 VA examination and contemplated in the rating assigned.  See Rossy v. Shulkin, 29 Vet. App. 142, 145 (2017).

As such, the Board finds that the weight of the evidence is persuasively against the Veteran's claim for an initial disability rating in excess of 10 percent for bilateral hearing loss.  The Board has considered the benefit-of-the-doubt rule; however, since the weight of the evidence is persuasively against the Veteran's claim, the benefit-of-the-doubt rule is not for application.  38 U.S.C. § 5107(b); see Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021).  

REASONS FOR REMAND

The Board shall remand for any pre-decisional error on the part of the AOJ to satisfy its duties under 38 U.S.C. § 5103A and may remand for correction of any other error by the AOJ in satisfying a regulatory or statutory duty if correction of the error would have a reasonable possibility of aiding in substantiating the appellant's claim.  38 C.F.R. § 20.802(a).

Once VA undertakes the effort to provide a medical examination or opinion, it must provide an adequate one.  Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007).  A medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007).  A medical opinion is inadequate if it does not consider the Veteran's reports of symptoms and history, even if recorded in the course of the examination.  Dalton v. Nicholson, 21 Vet. App. 23 (2007).

The October 2020 AOJ rating decision on appeal noted the Veteran's right ankle disability, diagnosed as resolved acute ankle sprain, was denied as the evidence did not show that the condition was incurred in or caused by his military service.  Further, the AOJ made a favorable finding that the Veteran's service treatment records document a complaint related to his right ankle.  The Board is bound by this favorable finding.  38 C.F.R. § 3.104(c).

During the October 2020 VA examination, the VA examiner noted that the Veteran injured his right ankle in service prior to his discharge in January 2001, and that he continued to have ankle pain and wore tall boots to prevent twisting his ankle.  The Veteran reported having constant right ankle pain with occasional numbness.  The examiner further noted that the Veteran was not receiving any current treatment for his right ankle pain and did not report any flare-ups or any functional loss or functional impairment associated with his right ankle pain.  Although finding no objective symptoms on examination, the examiner diagnosed resolved acute ankle sprain and opined that the Veteran's right ankle disability was less likely than not incurred in or caused by a claimed in-service injury, event, or illness.  The rationale for the opinion was that the Veteran's right ankle sprain in service was acute because there was no evidence of chronicity of
1, and that he continued to have ankle pain and wore tall boots to prevent twisting his ankle.  The Veteran reported having constant right ankle pain with occasional numbness.  The examiner further noted that the Veteran was not receiving any current treatment for his right ankle pain and did not report any flare-ups or any functional loss or functional impairment associated with his right ankle pain.  Although finding no objective symptoms on examination, the examiner diagnosed resolved acute ankle sprain and opined that the Veteran's right ankle disability was less likely than not incurred in or caused by a claimed in-service injury, event, or illness.  The rationale for the opinion was that the Veteran's right ankle sprain in service was acute because there was no evidence of chronicity of care and his symptoms were only subjective.  The opinion appears to be based primarily on the lack of documented treatment for right ankle complaints since the Veteran's discharge from service and does not address the longevity of his symptoms based on his report of pain and occasional numbness since his in-service injury.  A medical opinion is inadequate if it does not consider the Veteran's reports of symptoms and history, even if recorded in the course of the examination.  Dalton v. Nicholson, 21 Vet. App. 23 (2007).  Likewise, the absence of documented treatment cannot, alone, serve as a basis for finding that lay evidence lacks credibility.  See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006).  

For the above stated reasons, the Board finds the October 2020 examination and etiology opinion inadequate.  The reliance on the October 2020 inadequate opinion was a pre-decisional duty to assist error that warrants a remand for a new VA examination and opinion.  38 U.S.C. § 5103A(f)(2)(A); 38 C.F.R. § 20.802(a).

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The matter is REMANDED for the following action:

Schedule the Veteran for an appropriate VA examination to determine the nature and etiology of the Veteran's current right ankle disability.  The electronic claims file must be made available to the examiner for review in conjunction with the examination.  All testing deemed necessary must be conducted and the results reported in detail.  

Based on the examination, a review of the claims file, and the Veteran's elicited history, the clinician is asked to provide an opinion on the following:

Is it at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's right ankle disability was incurred in service or is related to an in-service injury, disease, or event, including his documented right ankle sprain?

In providing this opinion, the examiner is asked to consider September 2024 VA treatment records which indicate that X-ray results confirm degenerative changes in the right ankle and that he has an osteochondral defect in the right ankle.  The examiner is also asked to consider the Veteran's Board hearing testimony that he wears ankle braces and was given a boot to wear when his sprains recur and that he has had no intervening right ankle injuries since service and does not seek treatment every time a sprain recurs.  

A complete rationale for all opinions must be provided that addresses the Veteran's reported history of constant chronic right ankle pain since his in-service injury.  If the clinician cannot provide a requested opinion without resorting to speculation, it must be so stated, and the clinician must provide the reasons why an opinion would require speculation.  The clinician must indicate whether there was any further need for information or testing necessary to make a determination.  Additionally, the clinician must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner.

 

 

M. SORISIO

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Wells-Green, L. J.

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.