Citation Nr: 18146383 Decision Date: 10/31/18 Archive Date: 10/31/18 DOCKET NO. 16-34 814 DATE: October 31, 2018 ORDER Entitlement to an initial compensable disability rating for bilateral hearing loss is denied. FINDING OF FACT Audiometric examination corresponds to no greater than Level II hearing loss in the left ear, and Level I for the right ear. CONCLUSION OF LAW The criteria for an initial compensable disability rating for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012). 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.85, Diagnostic Code 6100 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 2012 to August 2015. The Veteran appeals a November 2015 rating decision by the Agency of Original Jurisdiction (AOJ) granting a noncompensable rating for bilateral hearing loss, effective August 29, 2015. When, as here, a Veteran seeks an increased evaluation, it will generally be presumed that the maximum benefit allowed by law and regulation is sought, and it follows that such a claim remains in controversy where less than the maximum benefit available is awarded. See AB v. Brown, 6 Vet. App. 35, 38 (1993). The Board notes that in November 2017, the AOJ denied service connection for left foot soft tissue injury, bilateral hip condition, hand cramping, bilateral knee condition, temporomandibular joint syndrome, migraine headaches, and recurring vertigo/dizziness. The AOJ also granted service connection for anxiety disorder at 30 percent disabling, while assigning noncompensable ratings for lumbar strain and left ankle lateral collateral ligament sprain. After the Veteran submitted a timely notice of disagreement (NOD), the AOJ issued a letter acknowledging receipt and has undertaken further development of the issues. See July 2016 VA letter. Therefore, no action is warranted by the Board under Manlincon v. West, 12 Vet. App. 238, 240-41 (1991). Increased Rating Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Where, as here, the question to consider is the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection and consideration of the appropriateness of a “staged” rating are required. See Fenderson v. West, 12 Vet. App. 199, 125-26 (1999). 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. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). 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. Importantly, the evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. However, when it is not possible to separate the effects of the service-connected disability from a nonservice-connected condition, such signs and symptoms must be attributed to the service-connected disability. Mittleider v. West, 11 Vet. App. 181, 182 (1998); 38 C.F.R. § 3.102. Here, the Veteran has contended that her hearing loss is more severe than her assigned disability rating. She filed her claim in August 2015. See August 2015 VA Form 21-526EZ. Evaluations for defective hearing are based upon organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests, along with the average hearing threshold level as measured by pure tone audiometric tests in the frequencies of 1000, 2000, 3000, and 4000 Hertz. 38 C.F.R. § 4.85, Tables VI, VIA, VII. To evaluate the degree of disability for service-connected bilateral hearing loss, the rating schedule establishes eleven auditory acuity levels, designated from Level I for essentially normal acuity, through Level XI for profound deafness. Table VI is used to determine the Roman numeric designation, based on test results consisting of pure tone thresholds and Maryland CNC test speech discrimination scores. The numeric designations are then applied to Table VII to determine the appropriate rating for hearing impairment. Id. When the 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. That numeral will then be elevated to the next higher Roman numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86(b). Ratings for hearing impairment are derived by a 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). On the authorized audiological evaluation in October 2015, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 10 5 10 35 LEFT 10 10 10 70 60 The average of the pure tone thresholds findings at 1000, 2000, 3000, and 4000 Hertz was 15 decibels in the right ear and 37 decibels in the left ear. The speech recognition scores on the Maryland CNC word list were 100 percent for the right ear, and 96 percent for the left ear. Applying the test results of the October 2015 VA examination report to Table VI of the Rating Schedule results in a Roman numeric designation of Level I for both ears. 38 C.F.R. § 4.85, Table VI. If evaluated under Table VIA, the Veteran’s left ear would result in a Roman numeric designation of Level II after elevation. Applying the Roman numeric designations to Table VII, the result is a 0 percent rating for the Veteran’s service-connected bilateral hearing loss. On the authorized audiological evaluation on March 2017, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 10 0 5 40 LEFT 10 5 10 65 65 The average of the pure tone thresholds findings at 1000, 2000, 3000, and 4000 Hertz was 14 decibels in the right ear and 37 decibels in the left ear. The speech recognition scores on the Maryland CNC word list were 100 percent for the right ear, and 96 percent for the left ear. Applying the test results of the March 2017 VA examination report to Table VI of the Rating Schedule results in a Roman numeric designation of Level I for both ears. 38 C.F.R. § 4.85, Table VI. Applying the Roman numeric designations to Table VII, the result is a 0 percent rating for the Veteran’s service-connected bilateral hearing loss. There are no other audiometric testing results for the remainder of the appeal period which comply with the requirements of 38 C.F.R. § 4.85 for rating purposes. Accordingly, the evidence of record does not support a compensable initial disability rating for bilateral hearing loss. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). (CONTINUED ON THE NEXT PAGE) The Veteran wears hearing aids. See March 2017 VA examination report. When she does not wear hearing aids, she reports difficulties with soft voices and high- pitched sounds. Id. However, this is reflective of the types of functional difficulty that would be expected to be caused by her recorded levels of hearing loss. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). Hence, a compensable initial disability rating for bilateral hearing loss is not warranted. DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Salazar, Associate Counsel