Citation Nr: 18153633 Decision Date: 11/29/18 Archive Date: 11/28/18 DOCKET NO. 15-27 503 DATE: November 29, 2018 ORDER Entitlement to compensable disability rating for service-connected bilateral hearing loss is denied. FINDING OF FACT Throughout the period on appeal, the Veteran’s service-connected bilateral hearing loss is productive of no more than a Level I hearing impairment in each ear. CONCLUSION OF LAW The criteria for a compensable disability rating for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from July 1970 to July 1974. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a rating decision of July 2014 by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. Disability ratings are determined by applying the criteria set forth in the VA Schedule of Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating many accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a questions as to which of two evaluations apply, assigning a higher of the two where the disability pictures more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person’s ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Ratings of defective hearing are based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination testing together with the average hearing threshold level as measured by pure tone audiometry tests in the frequencies 1000, 2000, 3000 and 4000 Hertz. To rate the degree of disability from defective hearing, the rating schedule establishes eleven auditory acuity levels from Level I for essentially normal acuity through Level XI for profound deafness. 38 C.F.R. § 4.85. Under 38 C.F.R. § 4.85, 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 percent of speech discrimination and the pure tone threshold average. The Roman numeral designation is located at the point where the percentage of speech discrimination and pure tone average intersect. 38 C.F.R. § 4.85(b). The pure tone threshold average is the sum of the pure tone thresholds at 1000, 2000, 3000, and 4000 Hertz, divided by 4. That average is used in all cases to determine the Roman numeral designation for hearing impairment. 38 C.F.R. § 4.85(d). Table VII, Percentage Evaluations for Hearing Impairment, is used to determine the rating by combining the Roman numeral designations for hearing impairment of each ear. The horizontal rows represent the ear having the better hearing and the vertical columns the ear having the poor hearing. The disability rating is located at the point where the rows and column intersect. 38 C.F.R. § 4.85(e). When the pure tone threshold at each of the four specified frequencies of 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. Each ear will be evaluated separately. When the pure tone 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 higher Roman numeral. 38 C.F.R. § 4.86. By way of history, the Veteran was granted entitlement to service connection for bilateral hearing loss in a March 2009 rating decision, and he was assigned a noncompensable disability rating. In May 2014 the Veteran filed a claim for increased ratings. At all times throughout the duration of the appeal, the Veteran has asserted that he is entitled to a higher disability rating. The results of the July 2014 audiological examination, as measured by a pure tone audiometry test, were as follows: HERTZ CNC 1000 2000 3000 4000 Average % RIGHT 30 35 40 60 41.25 100 LEFT 30 35 50 50 41.25 100 Speech recognition was 100 percent in the right ear and 100 percent in the left ear, as measured by the Maryland CNC test. Applying these values to Table VI, the result is a Level I Roman numeral designation for the right ear and a Level I Roman numeral designation for the left ear. When the above Roman Numeral designations are mechanically applied to Table VII, the results are a 0 percent disability rating throughout the appeal period. 38 C.F.R. § 4.85. Therefore, the preponderance of the evidence is against a finding that the Veteran’s bilateral hearing loss warrants a compensable rating. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). The Veteran provided medical evidence from a private medical doctor who stated in April 2013 that the Veteran’s audiometry test for hearing acuity demonstrated a hearing deficit in both his ears. That same private doctor in March 2014 stated that the Veteran’s auditory test for hearing acuity demonstrated a hearing deficit which was unchanged from the previous evaluation referred to in April 2013. This credible evidence from a medical doctor from April 2013 and March 2014 does not conflict with the findings of VA examination of July 2014. Both the private doctor and the VA examiner detected a hearing deficit; however, the private doctor did not specify the extent of the hearing loss, while the VA examination did quantify the extent of hearing loss that resulted in the non-compensable rating. In the November 2018 Appellant’s Brief, the Veteran’s representative argues that the VA examiner did not adequately assess the veteran’s disability which includes an inability to discern conversations while in crowds or with background noises, and that the Veteran has to increase the volume on the TV and radio in order to hear the broadcasts. The Board disagrees. The VA examiner did discuss the functional impairment noting the Veteran’s difficulty understanding conversations in noise and small groups. Moreover, the proper diagnostic testing was performed and recorded by the examiner. The U.S. Court of Appeals for Veterans Claims has held that the rating criteria for hearing loss contemplate the functional effects of decreased hearing and difficulty understanding speech in an everyday work environment as these are precisely the effects that VA’s audiometric tests are designed to measure. Doucette v. Shulkin, 28 Vet. App. 366, 369 (2017). The examination is found to be adequate. Given the foregoing, an increase in the disability rating for bilateral hearing loss is not warranted. Nathan Kroes Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Ruben D. Rudolph, Jr., Associate Counsel