Citation Nr: 18148643 Decision Date: 11/08/18 Archive Date: 11/07/18 DOCKET NO. 16-30 487 DATE: November 8, 2018 ORDER Entitlement to an initial disability rating higher than 0 percent for bilateral hearing loss is denied. FINDING OF FACT The Veteran’s bilateral hearing loss has not been manifested by hearing worse than Level I in the right ear and Level I in the left ear. CONCLUSION OF LAW The criteria for initial disability rating higher than 0 percent for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. Part 4, including §§ 4.1, 4.2, 4.7, 4.10, 4.85, Tables VI and VII (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Several statements from the Veteran, including comments in a June 2016 substantive appeal, reflect his requests for service connection and disability compensation for residuals of a hole in the left tympanic membrane (TM), to specifically include scarring, dizziness, staggering, vomiting, ear pain, and headaches. The agency of original jurisdiction (in this case a Department of Veterans Affairs (VA) Regional Office (RO)) has not yet addressed those requests. They are not on appeal before the Board such that the Board cannot take any action on them presently. Documents in the claims file, including a November 2017 deferred rating decision, reflect that the RO intends to address those requests. Disability rating for bilateral hearing loss In 2011 the Veteran sought service connection for disorders including hearing loss. In a March 2012 rating decision, the RO granted service connection, effective in November 2011, for bilateral hearing loss. The RO assigned a disability rating of 0 percent. The Veteran appealed that disability rating. VA assigns disability ratings 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 VA Schedule for Rating Disabilities (rating schedule). 38 U.S.C. § 1155; 38 C.F.R. Part 4, including §§ 4.1, 4.2, 4.10. If two ratings are potentially applicable, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In determining the current level of impairment, the disability must be considered in the context of the whole recorded history, including service medical records. 38 C.F.R. § 4.2. The United States Court of Appeals for Veterans Claims (Court) has held that, at the time of the assignment of an initial rating for a disability following an initial award of service connection for that disability, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a claim, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Under the VA rating schedule, hearing impairment is evaluated based on audiological testing, including a puretone audiometry test and the Maryland CNC controlled speech discrimination test. 38 C.F.R. § 4.85. The puretone threshold average is the average of the puretone thresholds, in decibels, at 1000, 2000, 3000, and 4000 Hertz, shown on a puretone audiometry test. 38 C.F.R. § 4.85. To find the appropriate disability rating based on test results, the puretone threshold average for each ear is considered in combination with the percentage of speech discrimination to establish a hearing impairment level, labeled from I to XI. See 38 C.F.R. § 4.85, Table VI. The hearing impairment levels of both ears are then considered together to establish a disability rating for the hearing loss. See 38 C.F.R. § 4.85, Table VII. The regulations at 38 C.F.R. § 4.86a, and accompanying Table VIa, address certain exceptional patterns of hearing impairment. Those patterns have not been shown on testing of the Veteran’s hearing. Tables VI and VII are reproduced below, beginning on the next page:   TABLE VI Numeric Designation of Hearing Impairment Based on Puretone Threshold Average and Speech Discrimination Percentage of Discrimination Puretone Threshold Average 0-41 42-49 50-57 58-65 66-73 74-81 82-89 90-97 98+ 92-100 I I I II II II III III IV 84-90 II II II III III III IV IV IV 76-82 III III IV IV IV V V V V 68-74 IV IV V V VI VI VII VII VII 60-66 V V VI VI VII VII VIII VIII VIII 52-58 VI VI VII VII VIII VIII VIII VIII IX 44-50 VII VII VIII VIII VIII IX IX IX X 36-42 VIII VIII VIII IX IX IX X X X 0-34 IX X XI XI XI XI XI XI XI Continued on next page   Table VII Percentage Evaluations for Hearing Impairment LEVEL OF HEARING IN BETTER EAR XI 100* X 90 80 IX 80 70 60 VIII 70 60 50 50 VII 60 60 50 40 40 VI 50 50 40 40 30 30 V 40 40 40 30 30 20 20 IV 30 30 30 20 20 20 10 10 III 20 20 20 20 20 10 10 10 0 II 10 10 10 10 10 10 10 0 0 0 I 10 10 0 0 0 0 0 0 0 0 0 XI X IX VIII VII VI V IV III II I LEVEL OF HEARING IN POORER EAR * Entitled to special monthly compensation under 38 C.F.R. 3.350. [64 FR 25206, May 11, 1999] In a VA audiological evaluation in January 2012, puretone thresholds, in decibels, were as follows:   HERTZ 1000 2000 3000 4000 RIGHT 15 30 50 40 LEFT 15 30 45 45 The puretone threshold averages were 34 decibels in the right ear and 34 decibels in the left ear. Speech recognition scores were 100 percent in the right ear and 100 percent in the left ear. The hearing impairment levels were I in the right ear and I in the left ear. The test results were consistent with a 0 percent rating for the bilateral hearing loss. In a VA audiological evaluation in July 2014, puretone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 15 40 45 40 LEFT 5 35 50 45 The puretone threshold averages were 35 decibels in the right ear and 34 decibels in the left ear. Speech recognition scores were 96 percent in the right ear and 100 percent in the left ear. The hearing impairment levels were I in the right ear and I in the left ear. The test results were consistent with a 0 percent rating for the bilateral hearing loss. As shown by the 2014 results and the earlier examination results, the Veteran’s hearing levels have not met the criteria for a disability rating higher than 0 percent. Since that examination, he has not contended that his hearing disability has worsened and stated in a June 2016 VA Form 9 that “I never stated I had a hearing loss.” Although the Veteran also explains in that document that he is seeking service connection for other ear disabilities (discussed above), he has not withdrawn his appeal in regard to the rating assigned for hearing loss so the Board herein proceeds with adjudication of the appeal. As hearing loss ratings are determined by a mechanical application of the rating schedule to the numeric designations assigned based on audiometric test results, and those results do not warrant assignment of a higher rating, the Board must herein deny a higher disability rating. Lendenmann v. Principi, 3 Vet. App. 345 (1992). JEBBY RASPUTNIS Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. J. Kunz, Counsel