Citation Nr: 18157217 Decision Date: 12/12/18 Archive Date: 12/11/18 DOCKET NO. 17-03 212 DATE: December 12, 2018 ORDER Entitlement to an initial compensable rating for bilateral hearing loss is denied. FINDING OF FACT Throughout the appeal period, the Veteran’s bilateral hearing loss disability has been manifested by auditory acuity no worse than Level I in his right ear and Level II in his left ear. CONCLUSION OF LAW The criteria for an initial compensable rating for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.159, 3.321, 4.85, 4.86, Diagnostic Code 6100 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1967 to January 1971. This matter is on appeal from a May 2015 rating decision. Increased Rating Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2018). The basis of disability ratings is the ability of the body as a whole, or of the psyche, or of a system or organ of the body, to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10 (2018). The determination of whether an increased rating is warranted is based on review of the entire evidence of record and the application of all pertinent regulations. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two ratings shall be applied, 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 (2018). However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14 (2018). While the Veteran’s entire history is reviewed when making a disability determination, where service connection has already been established and increase in the disability rating is at issue, it is the present level of the disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). However, staged ratings are appropriate for an increase rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Disability ratings for service-connected hearing impairments are determined through a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are made. Bruce v. West, 11 Vet. App. 405 (1998); Lendenmann v. Principi, 3 Vet. App. 345 (1992). The regulations set forth eleven auditory acuity levels, designated from Roman numerals I to XI, in escalating order of hearing impairment. 38 C.F.R. § 4.85. The appropriate auditory level is identified as the point where the percentage of speech discrimination and puretone threshold average intersect. Id. The regulations also provide that in cases of exceptional hearing loss, i.e., when the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more, the Roman numeral designation will be determined from either Table VI or Table VIA, whichever results in the higher numeral. 38 C.F.R. § 4.86(a). Likewise, a Roman numeral designation will be determined from either Table VI or Table VIA, whichever results in the higher numeral, when the puretone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz. That numeral will then be elevated to the next higher Roman numeral. 38 C.F.R. § 4.86(b). Entitlement to an initial compensable rating for bilateral hearing loss The Veteran contends that his service-connected bilateral hearing loss warrants a compensable rating. In January 2015, the Veteran underwent a VA audiological examination. During the audiological evaluation, the puretone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 40 30 45 55 LEFT 45 45 65 75 Those results show an average puretone threshold of 42.5 decibels in the Veteran’s right ear and 57.5 decibels in his left ear. Speech recognition ability using the Maryland CNC Test was 100 percent in both ears. These audiometry test results equate to Level I hearing impairment in the Veteran’s right ear and Level II hearing impairment in his left ear, using Table VI. 38 C.F.R. § 4.85. Regarding the impact of the Veteran’s hearing loss on his daily activities or employment, the Veteran reported difficulty hearing others and having to ask others to repeat themselves. The Veteran underwent a private examination in April 2015. During the audiological evaluation, the puretone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 40 30 - 60 LEFT 45 50 - 75 Those results show an average puretone threshold of 43.3 decibels in the Veteran’s right ear and 55 decibels in his left ear. Speech recognition ability was 92 percent in his right ear and 84 percent in his left ear. However, it is unclear as to whether the Maryland CNC Test was administered. If the Maryland CNC Test was administered, these audiometry test results equate to Level I hearing impairment in the Veteran’s right ear and Level II hearing impairment in his left ear, using Table VI. 38 C.F.R. § 4.85. Upon further review of the evidence of record, the Board finds that a compensable rating for the Veteran’s service-connected bilateral hearing loss is not warranted. Applying the clinical findings of the January 2015 VA examination, as well as the April 2015 private examination, separately, to Table VII, noncompensable evaluations are assigned in all instances. Specifically, the point where the Roman numeral designations for each ear intersect indicates a zero percent evaluation. The Veteran’s right ear and left ear hearing impairment corresponds to no higher than an auditory acuity of Level I in his right ear and Level II in his left ear. No exceptional pattern of hearing loss exists to warrant a compensable rating. The Veteran’s argument that his use of hearing aids should result in a compensable rating essentially raises the issue of entitlement to an extraschedular rating. Although the Board may not assign an extraschedular rating in the first instance, the Board does have the authority to decide whether the claim should be referred to the VA Director of the Compensation Service for consideration of an extraschedular rating. 38 C.F.R. § 3.321(b)(1). There must be a finding that the evidence presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. Id. Therefore, there must be a comparison between the level of severity and symptomatology of the service-connected disability with the established criteria found in the rating schedular for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). In this case, the schedular rating is adequate. 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 Veteran’s ability to hear sounds and voices is measured and rated by an audiometric test. His ability to understand speech, whether in a noisy or quiet environment, 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 which were not demonstrated in this case, and as measured by both audiometric testing and speech recognition testing. See Doucette v. Shulkin, 28 Vet. App. 366 (2017), (holding “that the rating criteria for hearing loss contemplate the functional effects of difficulty hearing and understanding speech”). Therefore, the diagnostic criteria adequately describe the severity and symptomatology of the Veteran’s bilateral hearing loss disability. Additionally, the record does not demonstrate marked interference with employment, or frequent periods of hospitalization, due to the Veteran’s bilateral hearing loss. For the foregoing reasons, the Board finds that referral for consideration of an extraschedular rating as to the Veteran’s service-connected bilateral hearing loss disability is not warranted. The Board is sympathetic to the Veteran’s position that a higher (e.g., compensable) rating is warranted for his service-connected bilateral hearing loss. However, the audiometric examination results, as compared to the rating criteria, do not warrant a compensable rating at any time during the appeal period. Accordingly, the Board finds that the preponderance of the evidence is against the claim for a compensable rating for bilateral hearing loss. This claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Houle, Associate Counsel