Citation Nr: 18150110 Decision Date: 11/14/18 Archive Date: 11/14/18 DOCKET NO. 16-36 448 DATE: November 14, 2018 ORDER Entitlement to a compensable rating for bilateral hearing loss is denied. FINDINGS OF FACT 1. Audiological testing has shown, at worst, Level II hearing acuity in the right ear. 2. Audiological testing has shown, at worst, Level III hearing acuity in the left ear. CONCLUSION OF LAW The criteria for entitlement to a compensable rating for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7 4.10, 4.85, Diagnostic Code 6100 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from September 1965 to September 1967. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2014 Rating Decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. On appeal, the Veteran contends that the current state of his bilateral hearing loss entitles him to a compensable rating. In his VA Form 9 filing, the Veteran references both a separate claim he has filed for entitlement to service connection for vertigo as secondary to his bilateral hearing loss, and an April 2012 VA examination in connection with that claim. Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the veteran. 38 C.F.R. § 4.3. While a veteran’s entire history is reviewed when assigning a disability rating, where service connection has already been established and an increase in the rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). The assignment of disability ratings for hearing impairment are to be derived by mechanical application of the Rating Schedule to the numeric designations assigned after audiometry evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). In cases in which the evaluation of hearing loss is at issue, an examination for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a pure tone audiometry test. Examinations are conducted without the use of hearing aids. 38 C.F.R. § 4.85(a). Table VI, “Numeric Designation of Hearing Impairment Based on Puretone Threshold Average and Speech Discrimination,” is used to determine a Roman numeral designation (I through XI) for hearing impairment based on a combination of the puretone threshold average (horizontal axis) and the percentage of speech discrimination (vertical axis). The Roman numeral designation is located at the point where the puretone threshold average and the percentage of speech discrimination intersect. 38 C.F.R. § 4.85(b). Table VIa, “Numeric Designation of Hearing Impairment Based Only on Puretone Threshold Average,” is used to determine a Roman numeral designation (I through XI) for hearing impairment based only on the puretone threshold average. Table VIa will be used when the examiner certifies that use of the speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc., or when indicated under the provisions of § 4.86. 38 C.F.R. § 4.85(c). “Puretone threshold average,” as used in Tables VI and VIa, is the sum of the puretone thresholds at 1000, 2000, 3000 and 4000 Hertz, divided by four. This average is used in all cases (including those in § 4.86) to determine the Roman numeral designation for hearing impairment from Table VI or VIa. 38 C.F.R. § 4.85(d). Table VII, “Percentage Evaluations for Hearing Impairment (Diagnostic Code 6100),” is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment of each ear. The horizontal row represents the ear having the poorer hearing of the two ears, and the vertical column represents the ear having the better hearing of the two. The percentage evaluation is located at the point where the row and column intersect. 38 C.F.R. § 4.85(e). Exceptional patterns of hearing impairment occur when the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more, or the puretone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz. When this occurs, 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. With respect to hearing loss, an audiologist must fully describe the functional effects caused by a hearing disability in his or her final report. Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). Entitlement to a compensable rating for bilateral hearing loss is denied. As a preliminary note, the Board recognizes that the Veteran has raised in his appeal for an increased rating for his service-connected bilateral hearing loss allegations of error in the determination for his claim for entitlement to service connection for vertigo as secondary to his bilateral hearing loss. The examination to which the Veteran refers on his VA Form 9 was an examination conducted for his claim for vertigo. In a July 2016 Rating Decision, the RO held that there was no clear and unmistakable error made in its determination to deny secondary service connection for vertigo. Because the issue of vertigo is not properly before the Board, the Board will not consider the Veteran’s arguments related thereto. The Veteran was granted service connection for his bilateral hearing loss in an October 2006 Rating Decision with a non-compensable disability rating effective as of January 31, 2006. In June 2014, the Veteran filed his claim for a compensable rating for his bilateral hearing loss. He stated that his hearing had worsened. In November 2014, the Veteran underwent a VA audiological exam performed by a certified audiologist. The results of that exam are as follows: Hertz (HZ) 1000 2000 3000 4000 Average Hz Right Ear 30 40 60 65 49 Left Ear 30 35 65 65 49 The Veteran’s speech discrimination score for the right ear was 86 percent, and the Speech Discrimination Score for the left ear was 82 percent. When describing the functional impact of his hearing loss, the Veteran stated that he uses the television at elevated volumes, requests his spouse to repeat during conversation, and has been issued hearing aids. With a puretone threshold average of 49 and a speech discrimination score of 86 percent, the Veteran’s right ear, pursuant to Table VI, receives a numerical designation of II. See 38 C.F.R. § 4.85(b); Table VI. With a puretone threshold average of 49 and a speech discrimination score of 82 percent, the Veteran’s left ear, pursuant to Table VI, receives a numerical designation of III. See 38 C.F.R. § 4.85(b); Table VI. As such, the Veteran’s better ear is his right ear, and his poorer ear is his left ear. Performing a mechanical application of the rating schedule to the numeric designations of II and III yield a non-compensable rating. Furthermore, the Veteran’s hearing was not indicative of any exceptional pattern of hearing impairment. See Lendenmann, 3 Vet. App.at 349; 38 C.F.R. § 4.85(e), 4.86; Diagnostic Code 6100. The Veteran has not argued any deficiencies in his audiometric testing, but rather has focused his argument on his vertigo claim not before the Board. Because a preponderance of the evidence weighs against the Veteran’s claim for a compensable rating for his bilateral hearing loss, the Veteran’s appeal is denied. The Board is unable to find an approximate balance of the positive and negative evidence submitted to warrant for the Veteran a favorable decision. See 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 53. J. GALLAGHER Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Trevor T. Bernard, Associate Counsel