Citation Nr: 18141759 Decision Date: 10/11/18 Archive Date: 10/11/18 DOCKET NO. 16-10 718 DATE: October 11, 2018 ORDER Entitlement to a compensable rating for right ear hearing loss is denied. FINDING OF FACT The Veteran’s right ear hearing loss is not shown to be productive of worse than level V. CONCLUSION OF LAW The criteria for a compensable rating for right ear hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code (DC) 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1969 to July 1977. In its February 2018 Statement of the Case (SOC), the Agency of Original Jurisdiction (AOJ) noted the Veteran’s failure to attend an audiological examination and denied a compensable rating for right ear hearing loss. The SOC also stated the provisions for failure to report for a VA examination, to include denial of the claim. 38 C.F.R. § 3.655. However, neither the Veteran nor his representative have provided good cause for the failure to report or stated that the Veteran is willing to appear for a new VA examination. Thus, the Board finds that no further development needs to be taken. The duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence. 38 C.F.R. § 3.655(a), (b). Entitlement to a compensable rating for right ear hearing loss A disability rating is determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule), 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 their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings,” whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran’s service-connected right ear hearing loss is rated under 38 C.F.R. § 4.85, DC 6100. The Rating Schedule, 38 C.F.R. § 4.85, DC 6100, sets out the criteria for evaluating hearing impairment using puretone threshold averages and speech discrimination scores. Numeric designations are assigned based upon a mechanical use of tables found in 38 C.F.R. § 4.85. Scores are matched against Table VI to find the numeric designation, then the designations are matched with Table VII to find the percentage evaluation to be assigned for the hearing impairment. To evaluate the degree of disability from defective hearing, the Rating Schedule establishes eleven auditory acuity levels from level I for essentially normal acuity through level XI for profound deafness. 38 C.F.R. §§ 4.85, 4.86, Tables VI, VIa, VII. Organic impairment of hearing acuity is measured by the results of controlled speech discrimination tests together with the average hearing threshold level as measured by a pure tone audiometry test in the frequencies of 1000, 2000, 3000, and 4000 cycles per second. See 38 C.F.R. § 4.85(a), (d). Ratings of hearing loss disability involve mechanical application of the rating criteria to the findings on official audiometry. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). Special provisions apply in instances of exceptional hearing loss. See 38 C.F.R. § 4.86. When the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) are all 55 decibels or more, the adjudicator must determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa in 38 C.F.R. § 4.85, whichever results in the higher numeral. 38 C.F.R. § 4.86(a). Also, when the puretone 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. That numeral will then be elevated to the next higher Roman numeral. Each ear is evaluated separately. 38 C.F.R. § 4.86(b). Analysis The Veteran asserts that his right ear hearing loss is more severe than the rating depicts. In April 2009, the Veteran was afforded a VA audiological examination to determine the nature and etiology of his right ear hearing loss. Puretone threshold levels in decibels were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 35 45 50 65 75 LEFT 20 15 30 35 35 The average puretone threshold findings at 1000, 2000, 3000, and 4000 Hertz (HZ) for the right ear was 59 and 29 for the left ear. Speech recognition scores based on the Maryland CNC Test was 80 for the right ear and 96 for the left. Testing revealed mild to severe sensorineural hearing loss in the right ear. After applying the above audiological findings to Table VI in 38 C.F.R. § 4.85, the Veteran has a numeric designation of level IV. Since his left ear is not service-connected, a Roman numeral I is used for this ear in Table VII. 38 C.F.R. § 4.85(f). Such a degree of hearing loss warrants a noncompensable evaluation under Table VII. The provisions of exceptional patterns of hearing impairment under 38 C.F.R. § 4.86 do not apply here. In January 2012, the Veteran was afforded a VA audiological examination to determine the severity of his right ear hearing loss. Puretone threshold levels in decibels were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 40 50 60 65 80 LEFT 30 25 30 30 40 The average puretone threshold findings at 1000, 2000, 3000, and 4000 Hertz (HZ) for the right ear was 64 and 31 for the left ear. Speech recognition scores based on the Maryland CNC Test was 70 for the right ear and 96 for the left. During the examination, the Veteran stated that he had difficulty understanding. Testing revealed sensorineural right ear hearing loss at 500-4000 Hz. After applying the above audiological findings to Table VI in 38 C.F.R. § 4.85, the Veteran has a numeric designation of level V. Since his left ear is not service-connected, a Roman numeral I is used for this ear in Table VII. 38 C.F.R. § 4.85(f). Such a degree of hearing loss warrants a noncompensable evaluation under Table VII. The provisions of exceptional patterns of hearing impairment under 38 C.F.R. § 4.86 do not apply here. The Board has considered the Veteran’s statements. However, the results of testing prepared by skilled professionals are more probative of the degree of the disability because the schedular criteria are predicated on audiological findings rather than subjective reports of severity of hearing loss. As indicated above, ratings of hearing loss disability involve mechanical application of the rating criteria to the findings on audiometric test results, including puretone thresholds and speech recognition scores. See Lendenmann, supra. The Board is bound to apply the VA Rating Schedule, under which the rating criteria are defined by audiometric test findings. The Board concludes that the preponderance of the evidence is against finding that a compensable rating for right ear hearing loss is warranted. Therefore, the claim must be denied. MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Henry, Associate Counsel