Citation Nr: 18154029 Decision Date: 11/28/18 Archive Date: 11/28/18 DOCKET NO. 16-59 680 DATE: November 28, 2018 ORDER A compensable rating for bilateral hearing loss is denied. FINDING OF FACT The weight of the competent and probative evidence shows Level I hearing, bilaterally, and does not reflect an exceptional pattern of hearing loss in either ear. CONCLUSION OF LAW The criteria for a compensable rating for bilateral hearing loss are not met. 38 U.S.C. §§ 1110, 1112, 5107(b); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.85-4.86, Diagnostic Code (DC) 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1970 to April 1975. These matters are before the Board of Veterans’ Appeals (Board) on appeal from a June 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). Increased Rating Disability ratings are intended to compensate for impairment in earning capacity due to a service-connected disorder. 38 U.S.C. § 1155. Separate diagnostic codes identify the various disabilities. 38 C.F.R. § 4.27. It is necessary to rate the disability from the point of view of the Veteran working or seeking work, see 38 C.F.R. §§ 4.1, 4.2, and to resolve any reasonable doubt regarding the extent of the disability in the Veteran’s favor. 38 C.F.R. § 4.3. Evaluations are based on functional impairments which impact a veteran’s ability to pursue gainful employment. 38 C.F.R. § 4.10. If there is a question as to which disability rating to apply to the Veteran’s disability, the higher rating will be assigned if the disability picture more nearly approximates the criteria 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 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. Hart v. Mansfield, 21 Vet. App. 505, 509-510(2007). 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. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). A compensable rating for bilateral hearing loss The Veteran currently has a noncompensable rating under Diagnostic Code 6100. Disability ratings for hearing loss are assigned based on the results of controlled speech discrimination tests combined with the results of pure tone audiometry tests. See 38 C.F.R. §§ 4.85-4.86. An examination for VA rating purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test, specifically, the Maryland CNC test, and a pure tone audiometry test. 38 C.F.R. § 4.85(a). Further, disability ratings for hearing impairment are assigned through a structured formula, i.e., a mechanical application of the rating schedule to numeric designations that are assigned after audiometric evaluations have been rendered. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). First, a Roman numeral designation of I through XI is assigned for the level of hearing impairment in each ear. Table VI is used to determine a Roman numeral designation based on a combination of the speech discrimination percentage and the average pure tone threshold, or the sum of the pure tone thresholds at 1000, 2000, 3000, and 4000 Hertz, divided by four. After a Roman numeral designation has been assigned for each ear, Table VII is used to determine the compensation rate by combining such designations for hearing impairment in both ears. 38 C.F.R. § 4.85. When the pure tone 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. Each ear will be evaluated separately. 38 C.F.R. § 4.86(a). 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 next higher. 38 C.F.R. § 4.86(b). The schedular rating criteria specifically provide for ratings based on all levels of hearing loss in various contexts, as measured by both audiometric testing and speech recognition testing. The ability of the Veteran to hear sounds and voices is measured and rated by an audiometric test, as this test measures different frequencies and captures high frequency hearing loss from sources including voices, music, sirens, and certain high-pitched sounds. The ability of the Veteran to understand people and having to ask others to repeat themselves on a regular basis is rated by a speech recognition test, as this test measures conversation comprehension, words, and missed conversations. The schedular rating criteria specifically provide for ratings based on all levels of hearing loss, including exceptional hearing patterns, and as measured by both audiometric testing and speech recognition testing. See Doucette v. Shulkin, 28 Vet. App. 366, 369 (2017) (holding that “the rating criteria for hearing loss contemplate the functional effects of difficulty hearing and understanding speech”). After reviewing the relevant medical and lay evidence and applying the above laws and regulations, the Board finds that Veteran is not entitled to a compensable disability rating for bilateral hearing loss. The Board first notes that the Veteran does not have an exceptional pattern of hearing impairment, as defined by 38 C.F.R. § 4.86. All applicable tests include valid pure tone and speech discrimination scores. As such, Table VI applies. See 38 C.F.R. §§ 4.85-4.86.   On the authorized audiological evaluation in May 2016, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 Average RIGHT 20 25 20 50 55 37.5 LEFT 25 25 20 40 75 40 Speech audiometry revealed speech recognition ability of 100 percent in the right ear and of 100 percent in the left ear. The Veteran’s right ear pure tone average combines with the right ear speech discrimination to yield a Roman numeral I in Table VI, and his left ear pure tone average also combines with the left ear speech discrimination for a Roman numeral I, per Table VI. See 38 C.F.R. § 4.85. Two roman numerals I combine for a zero, or non-compensable, rating in Table VII. The Board has considered the Veteran’s contentions that his hearing loss is worse than the rating reflects. At his VA examination, he reported that he has to turn the television higher and that his wife and children hear sounds that he does not. He indicated that his hearing loss did not otherwise bother him. As previously noted, VA’s audiometric tests are specifically designed to measure the functional effects of decreased hearing and difficulty understanding speech in an everyday work and other environments; thus, difficulty understanding certain sounds and conversation as a distance is contemplated by the rating criteria. See Doucette, 28 Vet. App. at 369. Applying the audiological test results most favorable to the Veteran to the regulatory criteria, the Board concludes that the preponderance of the evidence is against entitlement to a compensable rating for bilateral hearing loss. See 38 C.F.R. §§ 4.85-4.86. Accordingly, this claim must be denied. The Board has considered the applicability of the benefit of the doubt doctrine, but the preponderance of the evidence is against a compensable rating. Under these circumstances, the doctrine is not applicable. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990) Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Cruz, Associate Counsel