Citation Nr: 18155650 Decision Date: 12/04/18 Archive Date: 12/04/18 DOCKET NO. 16-19 433 DATE: December 4, 2018 ORDER Entitlement to a compensable rating for bilateral hearing loss is denied. FINDING OF FACT Throughout the period on appeal, the Veteran’s bilateral hearing loss is manifested by no worse than a level II hearing acuity for the right ear and a level III hearing acuity for the left ear. CONCLUSION OF LAW The criteria for a compensable rating for bilateral hearing loss have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.85, Tables VI, VII; 4.86, DC 6100 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from August 1970 to June 1974. In his substantive appeal to the Board, the Veteran requested a hearing before a member of the Board. He was notified of his scheduled November 2018 hearing by letter in October 2018, but did not attend the hearing or subsequently request a new hearing. His hearing request is deemed withdrawn. 1. Bilateral Hearing Loss Disability evaluations are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. The Veteran’s entire history is reviewed when making disability evaluations. See generally 38 C.F.R. § 4.1 (2017); Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where, as here, the question for consideration is the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection and consideration of the appropriateness of a staged rating are required. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). VA adjudicators must consider whether to “stage” the ratings, meaning assign different ratings at different times during the rating period to compensate him for times when the disability may have been more severe than at others. The Court has held that consideration of the appropriateness of a staged rating is required for increased rating claim. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). If the evidence for and against a claim is in equipoise, the claim will be granted. 38 C.F.R. § 4.3. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The assignment of disability ratings for hearing impairment is derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). 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. 38 C.F.R. § 4.85. The rating schedule establishes 11 auditory hearing acuity levels based upon average puretone thresholds and speech discrimination. See 38 C.F.R. § 4.85. “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 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). 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). Special provisions apply in instances of exceptional hearing loss. See 38 C.F.R. § 4.86. When the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) are all 55 decibels or more, the adjudicator must determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa in 38 C.F.R. § 4.85, whichever results in the higher numeral. 38 C.F.R. § 4.86(a). When the puretone 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 Roman numeral. Each ear is evaluated separately. 38 C.F.R. § 4.86(b). In this case, the Veteran’s puretone thresholds do not establish a pattern of exceptional hearing loss. The Court has held that, “in addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in his or her final report.” Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). The Veteran was granted service connection for bilateral hearing loss at zero percent effective December 29, 2013. The Veteran contends he is entitled to a compensable rating. The Veteran underwent an audiological VA examination in October 2015. His pure tone thresholds, in decibels, were as follows: HERTZ CNC 1000 2000 3000 4000 Avg % RIGHT 25 45 45 60 44 96 LEFT 25 60 80 95 65 88 The VA examiner noted the Veteran’s report of difficulty understanding speech and often asking people to repeat themselves. Under Table VI of 38 C.F.R. § 4.85, the Veteran’s puretone threshold findings are equivalent to level I hearing acuity for the right ear and level III hearing acuity for the left ear. Applying the Table VI findings to Table VII, results in a noncompensable rating. See 38 C.F.R. § 4.85(f). The Veteran underwent an audiological VA examination in November 2016. His pure tone thresholds, in decibels, were as follows: HERTZ CNC 1000 2000 3000 4000 Avg % RIGHT 25 40 45 55 41 88 LEFT 30 55 80 90 64 84 The VA examiner reported that the Veteran complained of difficulty hearing and understanding conversations, as well as, difficulty hearing alerting signals, such as car horns. Under Table VI of 38 C.F.R. § 4.85, the Veteran’s puretone threshold findings are equivalent to level II hearing acuity for the right ear and level III hearing acuity for the left ear. Applying the Table VI findings to Table VII, results in a noncompensable rating. See 38 C.F.R. § 4.85(f). The Board acknowledges the Veteran’s reported symptoms of difficulty hearing and understanding speech. While the Boards does not doubt the sincerity of the Veteran’s assertions regarding the severity of his hearing loss, or its functional impact, the Board must apply the regulation as it is currently written, which requires objective audiometric testing at certain levels to qualify for higher compensation. As such, the Board finds that the Veteran’s symptoms do not warrant a compensable rating. Therefore, the request for entitlement to a compensable rating for bilateral hearing loss is denied. G. A. WASIK Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. A. Prinsen, Associate Counsel