Citation Nr: 18150317 Decision Date: 11/14/18 Archive Date: 11/14/18 DOCKET NO. 15-39 161 DATE: November 14, 2018 ORDER Entitlement to an evaluation in excess of 20 percent for bilateral hearing loss is denied. FINDING OF FACT The Veteran’s service connected bilateral hearing loss is manifested by no worse than a Level IV hearing acuity in the right ear and Level V hearing acuity in the left ear. CONCLUSION OF LAW The criteria for a rating in excess of 20 percent for bilateral hearing loss have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.85, 4.86 Diagnostic Code 6100 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from March 1970 to November 1971. This matter comes before the Board from an June 2015 rating decision. 1. Entitlement to an evaluation in excess of 20 percent for bilateral hearing loss Service connection for bilateral hearing loss was granted in a July 2011 rating action. A noncompensable rating was assigned. The rating was increased to 20 percent in an October 2012 rating action. The Veteran filed an application for an increased rating for his bilateral hearing loss in March 2014. The Veteran was afforded a VA examination in April 2015. Based on this examination, the Veteran’s rating was reduced to non-compensable in a June 2015 rating decision. The Veteran initiated an appeal and, following further examination, the rating was restored to 20 percent. As he had initiated a claim for an increased rating for his bilateral hearing loss, that is the issue the Board will address. Disability evaluations are determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. This Rating Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations. 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. For the application of this schedule, accurate and fully descriptive medical examinations are required, with emphasis upon the limitation of activity imposed by the disabling condition. Over a period of many years, a veteran’s disability claim may require reratings in accordance with changes in laws, medical knowledge and his or her physical or mental condition. It is essential, both in the examination and in the evaluation of disability, that each disability be viewed in relation to its history. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2017). VA regulations provide a table (Table VI) to determine a Roman numeral designation (I through XI) for hearing impairment, established by a state-licensed audiologist including a controlled speech discrimination test (Maryland CNC), and based upon a combination of the percent of speech discrimination and the puretone threshold average which is the sum of the puretone thresholds at 1000, 2000, 3000 and 4000 Hertz, divided by four. 38 C.F.R. § 4.85 (2017). Table VII is used to determine the percentage rating by combining the Roman numeral designations for hearing impairment of each ear. A hearing examination for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test using the Maryland CNC test and a puretone audiometry test. VA audiometric examinations for rating purposes are to be conducted without the use of hearing aids. 38 C.F.R. § 4.85(a) (2017). 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, or other reasons, or when indicated under the provisions of 38 C.F.R. § 4.86. 38 C.F.R. § 4.85(c). When the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more or 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 Roman numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86. The Veteran was afforded a VA examination in April 2015. The findings showed the left ear with 92 percent speech discrimination. Decibel (dB) loss at the puretone threshold of 1000 Hertz (Hz) is 40, with a 70 dB loss at 2000 Hz, a 80 dB loss at 3000 Hz, and a 80 dB loss at 4000 Hz. The average decibel loss is 68 in the left ear. The right ear shows 96 percent speech discrimination. At the puretone threshold, he registered 1000 Hertz (Hz) is 35 dB, a 55 dB loss at 2000 Hz, a 70 dB loss at 3000 Hz, and a 80 dB loss at 4000 Hz. The average decibel loss is 60 in the right ear. A private June 2014 audiology examination was submitted by the Veteran. The results of that examination are not entirely legible. It also unclear whether the proper speech discrimination test was utilized. At a VA audiological examination in January 2018, pure tone thresholds, in decibels, were as follows: in the right ear: 35 (1000 Hz), 55 (2000 Hz), 70 (3000 Hz), 90 (4000 Hz); and in his left ear: 35 (1000 Hz), 65 (2000 Hz), 75 (3000 Hz), 90 (4000 Hz). Averages for VA rating purposes were 62.50 (rounds up to 63) in the right ear, and 66.25 (rounds down to 66) in the left ear. The examiner noted that the speech score was not available due to the Veteran’s hearing loss exceeding equipment capabilities. Based on this examination and utilizing Table VIA, the Veterans service-connected bilateral hearing loss was found to be manifested at a Level V hearing acuity in the right ear and Level V hearing acuity in the left ear. These were worse recorded hearing threshold during the appeal period. Such warrants the assignment of a 20 percent rating. The Veteran’s statements as to increased hearing difficulty are credible; however, there is no indication of hearing loss that warrants a rating in excess of 20 percent. Based upon the evidence of record, the Veteran’s hearing loss disability is found to be not more severe than indicated by the present rating under the conditions of daily life. Martinak v. Nicholson, 21 Vet. App. 447 (2007). Reference is made to statements from the Veteran where he indicated that his hearing loss and posttraumatic stress disorder (PTSD) resulted in his unemployability. He did not perfect his appeal on a claim for a total disability rating based on individual unemployability (TDIU) after being provided a Statement of the Case in June 2016. However, the Board has still considered whether the Veteran may be entitled to a TDIU. In that regard, the Board notes that the Veteran is already in receipt of a total schedular (100 percent) rating for prostate cancer. That rating has been in effected since March 2014. A grant of a 100 percent disability does not always render the issue of TDIU moot, however. VA has a duty to maximize a claimant’s benefits includes consideration of whether his disabilities establishes entitlement to special monthly compensation (SMC) under 38 U.S.C. § 1114. Bradley v. Peake, 22 Vet. App. 280, 294 (2008). Specifically, SMC may be warranted if the Veteran has a 100 percent disability rating for a single disability, and VA finds that TDIU is warranted based solely on the disabilities other than the disability that is rated at 100 percent. See Bradley, 22 Vet. App. 280 (analyzing 38 U.S.C. § 1114 (s)); See also 75 Fed. Reg. 11,229-04 (March 10, 2010) (withdrawing VAOPGCPREC 6-1999). A review of the record shows that special monthly compensation under 38 U.S.C. § 1114 (s), effective March 2014. This covers the entire period on appeal. As a result, the issue of entitlement to a TDIU is moot. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Rekowski, Associate Counsel