Citation Nr: 18155198 Decision Date: 12/04/18 Archive Date: 12/03/18 DOCKET NO. 15-13 076 DATE: December 4, 2018 ORDER Entitlement to a rating higher than 20 percent for service-connected bilateral hearing loss is denied. FINDING OF FACT The Veteran’s service-connected bilateral hearing loss is manifested by no worse than puretone threshold average of 86.25 in the right ear with a speech discrimination score of 52 percent and a puretone threshold average of 66.25 in the left ear with a speech discrimination score of 88 percent. CONCLUSION OF LAW The criteria for entitlement to a rating higher than 20 percent for service-connected bilateral hearing loss have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 3.385 (2017) REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1967 to September 1970. 1. BILATERAL HEARING LOSS Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. The regulations require review of the recorded history of a disability by the adjudicator to ensure an accurate evaluation, however, the regulations do not give past medical reports precedence over the current medical findings. Where an increase in the disability rating is at issue, the present level of the Veteran’s disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). It is also noted that staged ratings are appropriate for an increased rating claim whenever the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran contends that he is entitled to an increased rating for his bilateral hearing loss. Service connection for bilateral hearing loss was originally granted by way of a June 1980 rating decision. A noncompensable rating was assigned. Following the Veteran's May 2013 claim for an increase, the Veteran was assigned a 20 percent rating for his bilateral hearing loss. Disability ratings for hearing loss disability are derived from mechanical application of the rating schedule to the numeric designations resulting from audiometric testing. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). The rating schedule establishes 11 auditory hearing acuity levels based upon average puretone thresholds and speech discrimination. See 38 C.F.R. § 4.85. An examination for hearing impairment for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a puretone audiometry test. Examinations will be conducted without the use of hearing aids. 38 C.F.R. § 4.85(a). 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 (horizontal rows) and the puretone threshold average (vertical columns). The Roman numeral designation is located at the point where the row and column intersect. 38 C.F.R. § 4.85(b). Table VIa, “Numeric Designation of Hearing Impairment Based Only on Puretone Threshold Average,” is used to determine a Roman numeral designation (I through XI) for hearing impairment based only on puretone threshold average. Table VIa is used when the examiner certifies that the use of the speech discrimination test is not appropriate due to language difficulties, inconsistent speech discrimination scores, etc., or when indicated under the provisions of § 4.86. 38 C.F.R. § 4.85(c). “Puretone threshold average” as used in Tables VI and VIa is the sum of the puretone thresholds at 1000, 2000, 3000 and 4000 Hertz and divided by four. This average is used in all cases (including those of § 4.86) to determine a Roman numeral designation from Tables VI and VIa. 38 C.F.R. § 4.85(d). Table VII, “Percentage Evaluations of Hearing Impairment,” is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment in each ear. The horizontal rows represent the ear having better hearing and the vertical columns represent the ear having the poorer hearing. The percentage evaluation is located at the point where the row and the column intersect. 38 C.F.R. § 4.85(e). Provisions for evaluating exceptional patterns of hearing impairment are as follows: (a) When the puretone thresholds 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. (b) When the puretone thresholds are 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; the numeral will then be elevated to the next higher Roman numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86. The Veteran was originally service connected for bilateral hearing loss by way of a June 1980 rating decision. A noncompensable rating was assigned. He filed this claim for increase in May 2013. The Veteran was afforded a VA examination in July 2013. On the date of that examination, puretone thresholds in the right ear at 1000, 2000, 3000 and 4000 Hertz were 55, 80, 105, and 105, respectively. Thus, the average was 86.25. Speech recognition using the Maryland CNC word list was 52 percent in the right ear. Puretone thresholds in the left ear at 1000, 2000, 3000 and 4000 Hertz were 55, 40, 65, and 105, respectively. Thus, the average was 66.25. Speech recognition using the Maryland CNC word list was 88 percent in the left ear. Applying the values above to Table VI results in a Level VIII Roman numeral designation for the right ear and a Level IV Roman numeral designation for the left ear. Application of Level VIII and Level IV designations to Table VII results in a 20 percent disability rating. The Veteran's right ear readings reported in this evaluation meet the requirements for evaluation as an exceptional pattern of impairment. However, a puretone threshold average of 86.25 is accorded a Level VIII designation using table VIa, the same level assigned for the Veteran's right ear hearing loss by table VI. The Veteran contends that his hearing is further impacted by Meniere’s disease. However, the Veteran is not service connected for Meniere’s disease, therefore, it is unable to be taken into account for rating purposes. The Board in no way discounts the difficulties that the Veteran experiences as a result of his service-connected bilateral hearing loss. The Veteran is competent to testify to facts or circumstances that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2); Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011). However, it must be emphasized, as previously noted, that the disability ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designation assigned after audiometry results are obtained. Hence, the Board must base its determination on the results of the pertinent audiological evaluation of record. See Lendenmann, supra. In other words, the Board is bound by law to apply VA’s rating schedule based on the Veteran’s audiometry results. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Under these circumstances, the Board finds that throughout the appeal period, the record has presented no basis for the assignment of a disability rating higher than 20 percent for the Veteran’s service-connected bilateral hearing loss. His hearing acuity has been no worse than Level VIII in his right ear and Level IV in his left ear, which equates to a 20 percent disability rating under Table VII. MICHAEL KILCOYNE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Uller, Associate Counsel