Citation Nr: 18150130 Decision Date: 11/14/18 Archive Date: 11/14/18 DOCKET NO. 16-43 755 DATE: November 14, 2018 ORDER Entitlement to a compensable disability rating for bilateral hearing loss is denied. Entitlement to an increased disability rating for tinnitus in excess of 10 percent is denied. FINDINGS OF FACT 1. The Veteran’s bilateral hearing loss results in a hearing impairment no worse than a Level I designation in both the left and right ears. 2. The Veteran’s tinnitus is assigned a 10 percent disability rating, which is the maximum rating authorized under Diagnostic Code (DC) 6260. CONCLUSIONS OF LAW 1. The criteria for an initial compensable disability rating for left ear hearing loss have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.85, DC 6100. 2. There is no legal basis for the assignment of a schedular evaluation in excess of 10 percent for tinnitus. 38 U.S.C. § 1155; 38 C.F.R. § 4.87, DC 6260; Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). In determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. Hearing Loss The Rating Schedule provides rating tables for the evaluation of hearing impairment. 38 C.F.R. § 4.85. Table VI assigns a Roman numeral designation (I through XI) for hearing impairment based on a combination of percent speech discrimination and the puretone threshold average (the sum of the puretone thresholds at 1000, 2000, 3000 and 4000 Hertz, divided by four). Table VII is used to determine the percentage evaluation by combining the Table VI Roman numeral designations for hearing impairment in each ear. 38 C.F.R. § 4.86 provides for exceptional patterns of hearing impairment. 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. 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 from either Table VI or Table VIA, whichever results in the higher numeral. 38 C.F.R. § 4.86(b). That numeral is then elevated to the next higher Roman numeral. Each ear is evaluated separately. In a private August 2012 audiogram, puretone thresholds were as follows: HERTZ 500 1000 2000 3000 4000 AVG. RIGHT 15 30 40 45 50 41 LEFT 15 20 35 40 45 35 However, speech discrimination scores were not noted and, as such, this audiogram is inadequate for evaluation purposes. See 38 C.F.R. § 4.85(a). In an April 2014 VA examination, the Veteran reported that he had difficulty understanding speech and has to play the television loud. Speech recognition was 100 percent in the right ear and 100 percent in the left ear. On examination, puretone thresholds were as follows: HERTZ 500 1000 2000 3000 4000 AVG. RIGHT 20 20 35 45 45 36 LEFT 20 25 40 50 45 40 Applying the values above to Table VI results in a Level I Roman numeral designation for the right ear and a Level I Roman numeral designation for the left ear. Application of these designations to Table VII results in a noncompensable rating. The exceptional hearing pattern criteria are not met. The United States Court of Appeals for Veterans Claims has held that in addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in his or her final report. See Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). Here, the April 2014 VA examiner noted that the Veteran had difficulty understanding speech. The Board is sympathetic to the Veteran’s reports that he cannot hear well. The Board additionally notes that the Veteran is competent to describe his hearing loss. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, a veteran’s description of his service-connected disability must be considered in conjunction with the clinical evidence of record. In determining the actual degree of disability, an objective examination is more probative of the degree of the Veteran’s impairment as the opinions and observations of the Veteran alone are not sufficient to address the rating criteria under 38 C.F.R. § 4.85, DC 6100. The Board additionally emphasizes that disability ratings for hearing loss are derived by a mechanical application of the rating schedule. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). In sum, the evidence does not show that the Veteran’s left ear and right ear hearing loss resulted in a hearing impairment greater than a Level I designation under Table VI, at any time during the appeal period. Consequently, the criteria for a compensable disability rating for bilateral hearing loss has not been met. The appeal must be denied. Tinnitus The Rating Schedule provides a maximum evaluation of 10 percent for recurrent tinnitus pursuant to 38 C.F.R. § 4.87, DC 6260. Only a single evaluation for recurrent tinnitus is assigned, whether the sound is perceived in one ear, both ears, or in the head. 38 C.F.R. § 4.87, DC 6260, Note (2). During the entirety of the appeal period, the Veteran’s service-connected tinnitus has been assigned a 10 percent disability rating, which is the maximum schedular rating available. 38 C.F.R. § 4.87, DC 6260. There is no legal basis for a schedular rating in excess of 10 percent for recurrent tinnitus due to acoustic trauma. See Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006). As the disposition of this claim is based on the law, and not the facts of the case, the claim must be denied based on a lack of entitlement under the law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).   The Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 371 (2017). Biswajit Chatterjee Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Vang, Associate Counsel