Citation Nr: 1804629 Decision Date: 01/24/18 Archive Date: 02/05/18 DOCKET NO. 17-52 760 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to an initial rating in excess of 20 percent for bilateral hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD G. Johnson, Associate Counsel INTRODUCTION The Veteran served in the United States Marine Corps from October 1942 to December 1945. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDING OF FACT Throughout the period on appeal, the Veteran had Level IV hearing acuity in the right ear and Level VI hearing acuity in the left ear. CONCLUSION OF LAW The criteria for an initial rating in excess of 20 percent for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Initial Rating for Bilateral Hearing Loss The Veteran seeks an initial rating in excess of 20 percent for his service connected bilateral hearing loss. In his April 2017 notice of disagreement, the Veteran reported that he had trouble hearing on the phone. In his October 2017 VA Form 9 (substantive appeal), the Veteran asserted that his hearing loss has impacted his quality of life, and that basic daily activities are negatively affected as a result of the severity of symptomatology associated with his service-connected disability. The Veteran stated that the January 2017 VA examination was conducted in a booth with no background noise. The Veteran reported that he was unable to understand conversations with background noise or in a group of people, and he was unable to decipher church homilies. Disability ratings are based on the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. In a claim for a greater original rating after an initial award of service connection, all of the evidence submitted in support of the Veteran's claim is to be considered. See Fenderson v. West, 12 Vet. App. 119, 127 (1999). The United States Court of Appeals for Veterans Claims (Court) has held that in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505, 510 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. The Rating Schedule provides a table (Table VI) to determine a Roman numeral designation (I through XI) for hearing impairment, based on puretone thresholds and controlled speech discrimination (Maryland CNC) testing. Table VII is used to determine the rating assigned by combining the Roman numeral designations for hearing impairment of each ear. 38 C.F.R. § 4.85. The "puretone threshold average" as used in Table VI is the sum of the puretone thresholds at 1000, 2000, 3000, and 4000 Hertz, divided by four. This average is used in all cases to determine the Roman numeral designation for hearing impairment from Table VI or VIA. 38 C.F.R. § 4.85(d). Ratings for hearing impairment are derived by the mechanical application of the Rating Schedule to the numeric designations assigned after audiometric evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Where there is an exceptional pattern of hearing impairment as defined in 38 C.F.R. § 4.86, the rating may be based solely on puretone threshold testing. An exceptional pattern of hearing impairment occurs when the puretone thresholds in each of the four frequencies 1000, 2000, 3000, and 4000 Hertz are 55 decibels or greater, or when the puretone threshold at 1000 Hertz is 30 decibels or less and the threshold at 2000 Hertz is 70 decibels or more. 38 C.F.R. § 4.86(a), (b). The schedular rating criteria specifically provide for ratings based on all levels of hearing loss in various contexts, as measured by both audiometric testing and speech recognition testing. The ability of the Veteran to hear sounds and voices is measured and rated by an audiometric test, as this test measures different frequencies and captures high frequency hearing loss from sources including voices, music, sirens, and certain high-pitched sounds. The ability of the Veteran to understand people and having to ask others to repeat themselves on a regular basis is rated by a speech recognition test, as this test measures conversation comprehension, words, and missed conversations. The schedular rating criteria specifically provide for ratings based on all levels of hearing loss, including exceptional hearing patterns, as measured by both audiometric testing and speech recognition testing. See Doucette v. Shulkin, 28 Vet. App. 366, 369 (2017). The Veteran was afforded a VA examination in January 2017. The examiner noted that the Veteran's hearing loss impacted ordinary conditions of daily life. The Veteran reported difficulty understanding speech when in quiet conditions or in loud group settings; the need for others to speak louder and repeat what was said; and the need to have the television set at higher volume levels. The results of the puretone threshold testing were in the right ear at 1000, 2000, 3000, and 4000 Hz of 50, 65, 75, and 70 dB, respectively, for an average over the four frequencies of interest of 65 dB. The results of the puretone threshold testing were in the left ear at 1000, 2000, 3000, and 4000 Hz of 60, 65, 70, and 75 dB, respectively, for an average over the four frequencies of interest of 67.5 dB. Speech audiometry, using the Maryland CNC word list, revealed speech recognition of 76 percent for the right ear and 72 percent for the left ear. A numeric designation of Level IV is obtained for the right ear, and a numeric designation of Level VI is obtained for the left ear. Table VII provides that a 20 percent rating is assignable for numeric designations of Level IV and Level VI. The Board acknowledges the Veteran's October 2017 statement that the January 2017 VA examination was conducted in a booth with no background noise. However, the Court has found that a sound-controlled environment used to conduct audiometric examinations, like the one described by the Veteran, is an adequate testing environment for VA rating purposes. See Martinak v. Nicholson, 21 Vet. App. 447, 453-454 (2007); Doucette, supra. Based upon the evidence as outlined above, the Board finds that the criteria for an initial rating in excess of 20 percent for bilateral hearing loss were not met. The January 2017 VA examination shows that the Veteran had audiometric thresholds of Level IV for the right ear and Level VI for the left ear. Therefore, the Board finds that an initial rating in excess of 20 percent is not warranted for bilateral hearing loss. In sum, the Board finds that the criteria for an initial rating in excess of 20 percent for bilateral hearing loss were not met. In reaching this determination, the Board has considered the benefit of the doubt. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER An initial rating in excess of 20 percent for bilateral hearing loss is denied. ____________________________________________ JENNIFER HWA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs