Citation Nr: 18155170 Decision Date: 12/03/18 Archive Date: 12/03/18 DOCKET NO. 16-58 685A DATE: December 3, 2018 ORDER Entitlement to an initial rating in excess of 50 percent for bilateral hearing loss is denied. FINDING OF FACT The Veteran's bilateral hearing loss has been manifested by not worse than level VIII hearing in right ear and level IX hearing in his left ear. CONCLUSION OF LAW The criteria for a rating in excess of 50 percent have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 4.7, 4.85, 4.86, Diagnostic Code 6100 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the United States Navy from December 1957 to September 1961. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California, which assigned a 50 percent disability rating effective March 18, 2013. The Veteran subsequently appealed the rating assigned to the Board. Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C. § 1155 (2012); 38 C.F.R. Part 4 (2017). Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1 (2017). 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 may accurately reflect the elements of disability, per 38 C.F.R. § 4.2 (2017); resolving any reasonable doubt regarding the degree of disability in favor of the claimant, per 38 C.F.R. § 4.3 (2017); where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, per 38 C.F.R. § 4.7 (2017); and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity, per 38 C.F.R. § 4.10 (2017). Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Entitlement to an initial rating in excess of 50 percent for bilateral hearing loss As noted above, the Veteran was granted service connection for his bilateral hearing under Diagnostic Code 6100 for sensorineural hearing loss. 38 C.F.R. § 4.85. The ratings for defective hearing range from 0 percent to 100 percent, based on the organic impairment of hearing acuity as measured by results of controlled speech discrimination tests, together with the average hearing threshold level as measured by pure tone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 Hertz. To rate the degree of disability from service-connected hearing loss, the rating schedule establishes eleven auditory acuity levels ranging from level I for essentially normal acuity, through numeric level XI for profound deafness. 38 C.F.R. § 4.85, Tables VI and VII, Diagnostic Code 6100. Disability ratings for hearing loss are derived from a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing. Lendenman v. Principi, 3 Vet. App. 345 (1992). An exceptional pattern of hearing impairment occurs when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more. In that situation, 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. 38 C.F.R. § 4.86. Further, when the average 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 the 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. Id. 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, etc., or when indicated under the provisions of 38 C.F.R. § 4.86 when an exceptional pattern of hearing loss is shown. The Veteran was most recently provided a VA audiological examination in February 2015. This examination does not provide for a rating in excess of 50 percent for his hearing loss. Pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 50 70 80 85 LEFT 20 75 80 85 The average decibel loss in the right ear was 71 (71.25) and the average decibel loss in the left ear was 65. Speech recognition ability, using the Maryland CNC test, was 56 percent in the right ear and 48 percent in the left ear. February 2015 VA examination. These audiological findings correspond to level VIII hearing in the right ear, and level VIII hearing in the left ear. 38 C.F.R. § 4.85, Table IV. Consideration has been given to 38 C.F.R. § 4.86 for exceptional patterns of hearing impairment, which is applicable to the Veteran's audiological findings from his February 2015 VA examination. In this examination, pure tone threshold levels were not 55 decibels or higher at 1000, 2000, 3000, and 4000 Hertz, however, the left ear did qualify as 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz. 38 C.F.R. § 4.86. Based on this determination, the left ear has been elevated to a designation of level IX. Under Table VII, a designation of level VIII in one ear and IX in the other yields a 50 percent disability rating, but no higher. 38 C.F.R. § 4.85, Diagnostic Code 6100. The Board has considered the Veteran's lay statements regarding the severity of his hearing loss symptoms. The Board notes that while the Veteran is competent to testify regarding these symptoms as they are within the knowledge and observation of lay witnesses, compensation is determined by the mechanical application of Diagnostic Code 6100. While the Board is sympathetic to the Veteran's condition, lay testimony by itself is insufficient to determine the severity of hearing loss symptoms for compensation purposes. Moreover, since the issue of entitlement to an extraschedular rating has not been raised by the record, such consideration is not warranted at this time. Doucette v. Shulkin, 28 Vet. App. 366, 371 (2017). Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. R. Montalvo, Associate Counsel