Citation Nr: 1802040 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 10-36 523 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to an initial rating in excess of 30 percent for bilateral hearing loss. REPRESENTATION Veteran represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD K. Wysokinski, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1949 to January 1953. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The Veteran withdrew his claim for service connection for residuals of left ear radical mastoidectomy and cholesteoma removal by way of an August 2014 correspondence. Because the appeal was withdrawn prior to certification to the Board, it became effective when received by the RO and this issue is not before the Board. 38 C.F.R. § 20.204(b)(3) (2017). The Veteran also withdrew his request for a hearing by way of an August 2014 correspondence, thus the request is properly considered withdrawn. 38 C.F.R. §§ 20.704 (e). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2) (2012). FINDING OF FACT For the entire period on appeal the Veteran's hearing loss manifested with, at worst, Level IV severity in the right ear, and Level XI in the left ear. CONCLUSION OF LAW The criteria are not met for a rating in excess of 30 percent. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.85, 4.86, DC 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran's bilateral hearing loss is currently rated under DC 6100 as 30 percent disabling. 38 C.F.R. §§ 4.85. For the entire period on appeal, the Veteran's right ear hearing loss has manifested with, at worst, Level IV impairment and consequently, the Veteran may only be awarded the maximum rating of 30 percent per table VII. This is even when combined with the left ear hearing loss which is at level XI impairment. In other words, while there is no doubt that the Veteran has severe hearing loss in his left ear, the Board cannot award a higher rating because as indicated above, it must consider the combined rating which in the Veteran's case is limited to 30 percent because of the lesser impairment of the right ear. Disability ratings are determined by applying the criteria established in VA's Schedule for Rating Disabilities, which is based upon the average impairment of earning capacity. Individual disabilities are assigned separate Diagnostic Codes (DCs). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.20. When a question arises as to which of two ratings applies under a particular DC, the higher evaluation is assigned if the disability more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Consideration must be given to increased evaluations under other potentially applicable DCs. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Once a hearing disability is established, a numeric designation of hearing impairment is determined for each ear by applying the puretone threshold average and Maryland CNC percentage scores to Table VI ("Numeric Designation of Hearing Impairment Based on Puretone Threshold Average and Speech Discrimination"), resulting in a Roman numeral designation. 38 C.F.R. § 4.85(b), Table VI. Disability ratings are then assigned by combining the level of hearing loss in each ear in Table VII ("Percentage Evaluation for Hearing Impairment"). 38 C.F.R. § 4.85(e), Table VII. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). Table VI is generally used to determine the Roman numeral designation (I through XI) for hearing impairment in each ear, unless the examiner certifies that use of the speech discrimination test is not appropriate. In that case, Table VIa ("Numeric Designation of Hearing Impairment Based Only on Puretone Threshold Average") is used. 38 C.F.R. § 4.85(c). Table VIa may also be used when the puretone thresholds for each of the four frequencies 1000, 2000, 3000, and 4000 Hertz is 55 decibels or more, or when the puretone threshold is 30 decibels or lower at 1000 Hertz, and 70 decibels or higher at 2000 Hertz. 38 C.F.R. § 4.86. In the Veteran's case, a June 2012 VA Audiological Examination shows left ear hearing loss manifested by 30 percent word discrimination and decibel readings at the puretone threshold of 90 at the 500 Hertz (Hz), 100 at 1000 Hz, 105 at 2000 Hz, 105 at 3000 Hz, and 105 at 4000 Hz for an average decibel reading of 104 in the left ear. The right ear shows a speech discrimination of 84 percent with a puretone threshold of 35 at the 500 Hertz (Hz), 40 at 1000 Hz, 70 at 2000 Hz, 80 at 3000 Hz, and 85 at 4000 Hz for an average decibel reading of 69 in the left ear. This corresponds to level XI hearing impairment in the left ear, and level III in the right ear. The Veteran's previous VA Contract VA Audiological examination completed in May 2009 showed left ear hearing loss manifested by 40 percent word discrimination and decibel readings at the puretone threshold of 90 at the 500 Hertz (Hz), 105 at 1000 Hz, 105 at 2000 Hz, 105 at 3000 Hz, 105 and at 4000 Hz for an average decibel reading of 105 in the left ear. The right ear showed a speech discrimination of 76 percent with a puretone threshold of 35 at the 500 Hertz (Hz), 35 at 1000 Hz, 55 at 2000 Hz, 70 at 3000 Hz, and 75 at 4000 Hz for an average decibel reading of 59 in the right ear. This corresponds to level X hearing impairment in the left ear, and level IV in the right ear. The impairment reflected by the June 2012 examination would likewise support a 30 percent rating. The Board has considered whether the provisions in §§ 4.85 and 4.86 which cover exceptional patterns of hearing loss would provide a greater rating. However, even when considering these provisions, the Veteran still does not qualify for a higher rating. Further, the Veteran's September 2012 VA Ear Examination indicates that the Veteran's vertigo and other balance issues are not due to hearing loss. Accordingly, entitlement to a rating in excess of 30 percent for bilateral hearing loss is denied. ORDER Entitlement to an initial rating in excess of 30 percent for bilateral hearing loss is denied. ____________________________________________ MICHAEL KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs