Citation Nr: 18153808 Decision Date: 11/28/18 Archive Date: 11/28/18 DOCKET NO. 16-39 639 DATE: November 28, 2018 ORDER Entitlement to an increased rating in excess of 10 percent for bilateral hearing loss is denied. FINDING OF FACT The probative evidence of record demonstrates that, throughout the duration of the appeal, the Veteran has had, at worst, Level IV hearing in the right ear and Level III hearing in the left ear. CONCLUSION OF LAW The criteria for a disability rating in excess of 10 percent for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.3, 4.7 4.27, 4.85 DC 6100, 4.86. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in active duty in the Navy from May 1978 to February 1972. This case comes before the Board of Veterans’ Appeal (Board) on appeal from an December 2015 rating decision issued by the Department of Veteran Affairs (VA) Regional Office (RO). Disability Ratings, Generally Disability evaluations (ratings) are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.10. In evaluating a disability, the Board must consider the current examination reports in light of the entire record to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. §§ 4.1, 4.2, 4.10. If there are multiple evaluations and there is a question as to which 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. See 38 C.F.R. § 4.7. Reasonable doubt regarding the degree of disability will be resolved in the veteran’s favor. 38 C.F.R. § 4.3. Where entitlement to compensation 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, 58 (1994). Separate ratings can be assigned for separate periods of time based on the facts found, a practice known as “staged” ratings. See Fenderson v. West, 12 Vet. App. 119 (1999); see also Hart v. Mansfield, 21 Vet. App. 505. Entitlement to an increased rating in excess of 10 percent for bilateral hearing loss In July 2015, the Veteran filed a claim for increased rating due to his service-connected bilateral hearing loss, which was initially rated at 0 percent. According to the December 2015 rating decision, the RO increased the Veteran’s disability rating for bilateral hearing loss to 10 percent. The Veteran appeals this decision, maintaining that his service-connected bilateral hearing loss is more severe than what is reflected by the current rating and, as such, warrants a rating in excess of 10 percent. The Veteran’s bilateral hearing loss is rated under DC 6100. Disability ratings for hearing loss are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are performed. Lindenmann v. Principi, 3 Vet. App. 345, 349 (1992). Evaluations of bilateral hearing loss range from noncompensable to 100 percent, based on an organic impairment of hearing acuity; this is measured by controlled speech discrimination tests in conjunction with the average hearing threshold, which is measured by pure tone audiometric tests in the frequencies of 1000, 2000, 3000 and 4000 cycles per second. The rating schedule for hearing loss establishes 11 auditory acuity levels designated from Level I for essentially normal hearing acuity through Level XI for profound deafness. VA audiological evaluations are conducted using a controlled speech discrimination test together with the results of pure tone audiometry tests. The vertical line in Table VI (printed in 38 C.F.R. § 4.85) represents nine categories of the percentage of discrimination based on a controlled speech discrimination test. The horizontal columns in Table VI represent nine categories of decibel loss based on the pure tone audiometry test. The numeric designation of impaired hearing (Levels I through XI) is determined for each ear by intersecting the vertical row appropriate for the percentage of discrimination and the horizontal column appropriate to the pure tone decibel loss. The percentage evaluation is found at Table VII (in 38 C.F.R. § 4.85) by intersecting the vertical column appropriate for the numeric designation for the ear with better hearing acuity and the horizontal row appropriate for the numeric designation for the level for the ear with poorer hearing acuity. See 38 C.F.R. § 4.85. There are also exceptional patterns of hearing impairment for when pure tone thresholds at the 1000, 2000, 3000, and 4000 Hertz frequencies are 55 decibels or more. See 38 C.F.R. § 4.86(a). Under 38 C.F.R. § 4.86(a), each ear is to be evaluated separately to determine if an exceptional pattern of hearing impairment exists. Id. When an exceptional pattern of hearing loss exists, the Board is to evaluate hearing based on pure tone threshold alone if doing so would benefit the Veteran. Id. In this case, the Veteran was given a VA examination for his hearing loss in conjunction with his claim for an increased rating in December 2015. The results from that examination were as follows: HERTZ 1000 2000 3000 4000 AVG RIGHT 55 55 60 75 61 LEFT 55 55 55 55 55 Speech recognition, performed with the Maryland CNC word list, was reported by the examiner as 88 percent in the right ear and 96 percent in the left ear. See December 2015 VA Examination at 1-2. Typically, application of the rating schedule using the guidelines from 38 C.F.R. § 4.85 would result in Roman numeral designations of III for the right ear, and I for the left ear. This would result in a 0 percent (or noncompensable) disability rating for bilateral hearing loss; however, both left and right ears exhibit exceptional patterns of hearing impairment with pure tone thresholds at the 1000, 2000, 3000, and 4000 Hertz frequencies of 55 decibels or more, thus, the principles from 38 C.F.R. § 4.86(a) applies. Applying the guidelines from 38 C.F.R. § 4.86(a), Roman numeral designations of IV for the right ear and III for the left ear are warranted. This higher designation indicates a 10 percent disability rating for bilateral hearing loss. Thus, the Board finds that the RO’s assignment of a 10 percent rating to be proper. While the rating of 10 percent was warranted, the Board finds that the evidence available does not support a rating in excess of 10 percent. The Veteran has not submitted any additional medical evidence that would otherwise indicate that a higher rating is warranted. During the examination, the Veteran reported that his hearing loss impacted ordinary conditions of life, including his ability to work. The Veteran explained that he is a substitute teacher and that even with the hearing aids, he has a hard time hearing his students in the classroom. Furthermore, he stated that it is socially difficult for him to be in a crowd. See December 2015 VA Examination at 4. In his substantive appeal, the Veteran indicated that as a substitute teacher, his assignments are limited by his difficulty to hear and understand young students. See Form 9. Although the Veteran is competent to report his experiences and the Board finds his statements to be credible, these statements alone do not warrant a higher rating since a disability rating for hearing loss depends on a mechanical application of rating tables, and difficulty hearing is contemplated by the rating criteria. In short, based on the audiological testing shown in December 2015, which is the most probative evidence of record regarding the severity of the Veteran’s hearing loss, the Veteran’s hearing loss does not warrant a rating in excess of 10 percent. The Veteran’s descriptions of the functional effects of his hearing loss symptoms correspond only to having difficulty hearing other people. Furthermore, the Veteran has only stated that his hearing loss limits his job assignments, but does not hinder his ability to hold gainful employment. Thus, the Veteran’s audiometric results adequately rate his disability. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). Accordingly, the Veteran’s claim for an increased rating in excess of 10 percent is denied. K. PARAKKAL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A.B.Y. Nguyen, Law Clerk