Citation Nr: 18152428 Decision Date: 11/21/18 Archive Date: 11/21/18 DOCKET NO. 15-46 269 DATE: November 21, 2018 ORDER Entitlement to an initial compensable rating for bilateral hearing loss for the period prior to April 28, 2017 is denied. REMANDED Entitlement to an initial compensable rating for bilateral hearing loss for the period April 28, 2017 forward is remanded. FINDING OF FACT The preponderance of the evidence of record shows that the Veteran’s bilateral hearing loss manifests at Roman numeral Level II in the right ear, Level I in the left ear. There is no exceptional pattern of hearing impairment. CONCLUSION OF LAW The criteria for entitlement to an initial compensable rating for bilateral hearing loss for the period prior to April 28, 2017 have not been met. 38 U.S.C. § 1155 West 2012); 38 C.F.R. §§ 4.10, 4.31, 4.85, Diagnostic Code (DC) 6100 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Pursuant to his application for service connection, an October 2014 rating decision (10/23/2014 Rating Decision) granted service connection for bilateral hearing loss and assigned an initial 0 percent (noncompensable) rating, effective in December 2013. The Veteran perfected an appeal of the initial rating. Entitlement to an initial compensable rating for bilateral hearing loss for the period prior to April 28, 2017 Applicable Law and Regulation Disability ratings are determined by the application of the Schedule for Rating Disabilities, which assigns evaluations based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; see also Peyton v. Derwinski, 1 Vet. App. 282 (1991). In general, the degree of impairment resulting from a disability is a factual determination and generally the Board’s primary focus in such cases is upon the current severity of the disability. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994). Nonetheless, separate, or staged, ratings can be assigned for separate periods during the rating period on appeal based on the facts found as concerns the severity of the disability. See O’Connell v. Nicholson, 21 Vet. App. 89, 91-92 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). Hearing loss is evaluated under 38 C.F.R. §§ 4.85, 4.86, DC 6100, Tables VI, VIA, and VII of VA’s rating schedule. The Rating Schedule provides a table for rating purposes (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 pure tone threshold average, which is the sum of the pure tone thresholds at 1000, 2000, 3000, and 4000 Hertz (Hz) divided by four. 38 C.F.R. § 4.85. Table VII 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 and the vertical column represents the ear having the better hearing. Id. Disability ratings for hearing loss are derived from a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing. See Lendenman v. Principi, 3 Vet. App. 345 (1992). When service connection is in effect for only one ear, the non-service-connected ear is assigned a Roman numeral designation of I. There are certain exceptional patterns of hearing impairment: When the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz (Hz)) is 55 decibels (db) or more, and when the puretone threshold is 30 db or less at 1000 Hz and 70 db or more at 2000 Hz. Neither pattern was shown on the examination discussed below, and the special ratings for these patterns are therefore inapplicable. 38 C.F.R. § 4.86. Discussion The VA audiologic examination (10/22/2014 C&P Exam, 1st Entry) reflects the Veteran’s reported that his hearing loss impacted his ordinary conditions of daily living in that he had difficulty understanding people. He could hear them, but they seemed to just drop off. Prior to his retirement, his hearing loss impacted him at work as telephone conversations were difficult. He talked so loud due to his hearing loss that he and his desk were moved to a quieter location. He reported further that when at home, he had others listen on the phone for him. Id., P. 5. The audio examination revealed the Veteran’s hearing loss to manifest as follows: HERTZ 1000 2000 3000 4000 AVG SPEECH RECOG. RIGHT 25 40 85 90 60 92% LEFT 20 25 55 50 37 100% The examiner opined that the test results were valid for rating purposes, the use of the Speech Recognition scores were appropriate for the Veteran, and diagnosed a sensorineural hearing loss in each ear. Id., P. 2-3. The above test results, using Table VI, show the right ear manifested at Level II, and the left at Level I. 38 C.F.R. § 4.85. Those levels intersect at the noncompensable rate in Table VII. 38 C.F.R. § 4.85, DC 6100. In support of his appeal the Veteran submitted lay statements of two former co-workers. Each described how loud the Veteran talked on telephone conversations, so loud that he could be heard even after his desk was moved. One stated that he had to repeat himself if the Veteran was not near to him when he spoke. See 11/18/2014 VA 21-4138, 2nd and 3rd Entries. VA outpatient records note that the Veteran was provided with hearing aids in January 2015, and that he reported in March 2015 that he was very happy with them. See 02/09/2015 Medical Treatment-Government Facility, P. 2; 11/12/2016 CAPRI P. 1. At the Board hearing, the Veteran testified that he had difficulty hearing on the phone, especially with high-pitched voices; they sometimes came and went. He frequently did not even want to converse in crowds because he could not hear people speak. As a result, he sought out restaurants where the noise level was low. The Veteran testified that talking driving, with or without his hearing aids, was an issue because he was not sitting across from the person to whom he would be speaking. The undersigned noticed that the Veteran was wearing a hearing aid and inquired into how long the Veteran had worn it. The Veteran responded approximately 18 months. The undersigned noted on the record that the fact that the Veteran was provided hearing aids after his only examination could be viewed as a worsening of the hearing loss. The Veteran testified that his hearing had worsened since the 2014 examination. See 04/28/2017 Hearing Testimony. Based on the examination findings and the Veteran’s testimony, the Board finds that the initial part of the rating period on appeal should be closed as of the day before the hearing, April 27, 2017. This is discussed further in the remand part of this decision. As for the period April 27, 2017 and before, the Board acknowledges the Veteran’s complaints, but the evidence set forth above demonstrates that his hearing loss was evaluated properly as noncompensable for that period. Indeed, his reported difficulties hearing are the types of difficulties expected to be caused by his hearing loss and are thereby fully contemplated by the rating schedule. Doucette v. Shulkin, 28 Vet. App. 366 (2017)38 C.F.R. § 4.85, DC 6100. The evidence of record does not show that a staged rating is indicated. REASONS FOR REMAND Entitlement to an initial compensable rating for bilateral hearing loss for the period April 28, 2017 forward is remanded. The Veteran is entitled to a current examination where there is evidence that his hearing loss has worsened since the last examination. He is fully competent to testify to the symptoms and the severity of his hearing loss. See 38 C.F.R. § 3.159(a)(2). Further, as noted in the decision above, after the 2014 examination his hearing was deemed significant enough to justify hearing aids. The matter is REMANDED for the following action: The AOJ shall arranged an examination by an appropriate examiner to determine the current severity of the Veteran’s bilateral hearing loss. Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD W.T. Snyder