Citation Nr: 18143979 Decision Date: 10/22/18 Archive Date: 10/22/18 DOCKET NO. 16-16 501 DATE: October 22, 2018 ORDER A compensable rating for bilateral hearing loss is denied. FINDING OF FACT The competent and probative evidence shows hearing loss of no worse than Level II in the right ear and Level IV in the left ear. CONCLUSION OF LAW The criteria for a compensable rating for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.85-4.86 (2017); DC 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1967 to August 1969. The Veteran was awarded a Purple Heart for his service in the Vietnam War. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a January 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran declined a Board hearing in his VA Form 9 substantive appeal. By way of background, the RO denied a compensable rating for the Veteran’s already service-connected left ear hearing loss in January 2013. The RO then subsequently granted service connection for right ear hearing loss in a September 2017 rating decision. The RO combined the two disabilities into a single bilateral hearing loss disability, assigned the same effective date as the grant of service connection for the right ear, and denied a compensable rating for bilateral hearing loss. The criteria for rating hearing loss are different depending on whether hearing loss is service connected in one or both ears. See 38 C.F.R. §§ 3.383(a)(3), 4.85(a), (f), Table VII. When service connection is in effect for hearing loss in both ears, both ears are treated as a single disability for rating purposes. 38 C.F.R. § 4.85. In evaluating bilateral hearing loss, the severity of hearing loss in each ear is determined, and then those results are mechanically applied to Table VII in order to determine the appropriate overall rating for the disability. 38 C.F.R. §§ 4.85(a)–(b), (e), Table VI, Table VII. For hearing loss in one ear to be rated individually, a non-service connected ear is required. See 38 C.F.R. § 4.85(f). As service connection for right ear hearing loss was granted during the course of the appeal, thus making the Veteran’s hearing loss bilateral for VA purposes, the rating procedures governing the rating of single ear hearing loss are not applicable, and the Veteran’s hearing loss must be rated in accordance with the procedures and criteria governing bilateral hearing loss. As this requires evaluation of both the right and left ear, the Board finds that upon the grant of service connection for right ear hearing loss, the claim for an increased rating for left ear hearing loss became a claim for an increased rating for bilateral hearing loss.   Entitlement to a compensable rating for bilateral hearing loss. Disability evaluations are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) at 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 the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. Id. Disability ratings are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Rating Schedule. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3; see Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990). In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the disorder. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. The Veteran is competent to report symptoms and experiences observable by his senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). Disability ratings for hearing loss are assigned based on the results of controlled speech discrimination tests combined with the results of pure tone audiometry tests. See 38 C.F.R. §§ 4.85-4.86. An examination for VA rating purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test, specifically, the Maryland CNC test, and a puretone audiometry test. 38 C.F.R. § 4.85(a). Further, disability ratings for hearing impairment are assigned through a structured formula, i.e., a mechanical application of the rating schedule to numeric designations that are assigned after audiometric evaluations have been rendered. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). First, a Roman numeral designation of I through XI is assigned for the level of hearing impairment in each ear. Table VI is used to determine a Roman numeral designation based on a combination of the speech discrimination percentage and the average pure tone threshold, or the sum of the pure tone thresholds at 1000, 2000, 3000, and 4000 Hertz, divided by four. After a Roman numeral designation has been assigned for each ear, Table VII is used to determine the compensation rate by combining such designations for hearing impairment in both ears. 38 C.F.R. § 4.85. When the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more, 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. Each ear will be evaluated separately. 38 C.F.R. § 4.86(a). 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. 38 C.F.R. § 4.86(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, and as measured by both audiometric testing and speech recognition testing. See Doucette v. Shulkin, 28 Vet. App. 366, 369 (2017). After reviewing the relevant medical and lay evidence and applying the above laws and regulations, the Board finds that Veteran is not entitled to a compensable rating for bilateral hearing loss. The Board first notes that the Veteran does not have an exceptional pattern of hearing impairment, as defined by 38 C.F.R. § 4.86. All applicable tests include valid puretone and speech discrimination scores. As such, Table VI applies. See 38 C.F.R. §§ 4.85-4.86. In December 2012, the Veteran was given an audiological examination by a VA audiologist, and recorded puretone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 AVERAGE RIGHT 25 35 60 65 46 LEFT 25 60 95 95 69 Speech audiometry revealed speech recognition ability of 94 percent in the right ear and 80 percent in the left ear. The results of the December 2012 audiological examination combine for I in the right ear and IV in the left ear in Table VI. Roman numerals I and IV combine for a noncompensable rating in Table VII. See 38 C.F.R. § 4.85. In June 2016, the Veteran was given an audiological examination by a VA audiologist, and recorded puretone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 AVERAGE RIGHT 25 40 70 75 52.5 (53) LEFT 30 55 100 105 72.5 (73) Speech audiometry revealed speech recognition ability of 86 percent in the right ear and 80 percent in the left ear. The results of the June 2016 audiological examination combine for II in the right ear and IV in the left ear in Table VI. Roman numerals II and IV combine for a noncompensable rating in Table VII. See 38 C.F.R. § 4.85. The Veteran has reported that hearing loss results in difficulty understanding speech in background noise and trouble in group situations. He is competent to report these symptoms, and the Board also finds him credible as the statements on this point are detailed and consistent. See Jandreau, 492 F.3d at 1377. However, as previously noted, VA’s audiometric tests are specifically designed to measure the functional effects of decreased hearing and difficulty understanding speech in an everyday work environment; thus, difficulty hearing in crowded environments is contemplated by the rating criteria. See Doucette, 28 Vet. App. at 369. The Board finds that the competent medical evidence, to include the VA examinations’ testing results, are more probative and outweigh the lay subjective reports of a more severe degree of disability, because they were provided by personnel with specialized training in hearing loss and directly address the rating criteria for the Veteran’s hearing loss. Applying the audiological test results most favorable to the Veteran to the regulatory criteria, the Board concludes that the preponderance of the evidence is against entitlement to a compensable disability rating for bilateral hearing loss. See 38 C.F.R. §§ 4.85-4.86. The Board has considered the applicability of the benefit of the doubt doctrine, but the preponderance of the evidence is against a compensable rating. Under these circumstances, the doctrine is not applicable. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53-55 (1990). Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Watkins, Law Clerk