Citation Nr: 18158324 Decision Date: 12/14/18 Archive Date: 12/14/18 DOCKET NO. 16-49 785 DATE: December 14, 2018 ORDER Entitlement to an initial compensable rating for bilateral hearing loss is denied. FINDING OF FACT The Veteran’s bilateral hearing loss is manifested by no more than Level II for the right ear, and no more than Level II for the left ear, and an exceptional pattern of hearing loss is not shown. CONCLUSION OF LAW Throughout the period of appeal, the criteria for a rating higher than 0 percent for bilateral hearing loss have not been met or more nearly approximated. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.385, 4.1-4.14, 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1970 to November 1978. This matter comes before the Board of Veterans’ Appeals (Board) from a November 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. Increased Ratings Disability ratings are determined by the application of VA’s Schedule for Rating Disabilities, which is based on average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran’s entire history is to be considered when assigning disability ratings. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). A claimant may experience multiple distinct degrees of disability that may result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The following analysis is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. The rating of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. However, that does not preclude the assignment of separate ratings for separate and distinct symptomatology where none of the symptomatology justifying a rating under one diagnostic code is duplicative of or overlapping with the symptomatology justifying a rating under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259 (1994). Ratings of hearing loss range from 0 to 100 percent based on organic impairment of hearing acuity as measured by the results of speech discrimination tests combined with the average hearing threshold levels as measured by pure tone audiometry tests in the frequencies 1000, 2000, 3000, and 4000 Hertz. To rate the degree of disability for hearing loss, the Rating Schedule has established eleven auditory acuity levels, designated from Level I, for essentially normal acuity, through Level XI, for profound deafness. 38 C.F.R. § 4.85(h), Table VI. 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 performed. Lendenmann v. Principi, 3 Vet. App. 345 (1992). The criteria for rating hearing impairment use a controlled speech discrimination test (Maryland CNC) together with the results of pure tone audiometry tests. The results are charted on Table VI, or Table VIA in exceptional cases as described in 38 C.F.R. § 4.86, and Table VII. 38 C.F.R. § 4.85. An exceptional pattern of hearing loss occurs when the pure tone threshold at 1000, 2000, 3000, and 4000 Hertz is 55 decibels or more, or when the pure tone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz. 38 C.F.R. § 4.86. In such cases, the Roman numeral value is determined using both Table VI and VIA and whichever table results in a higher Roman numeral value is used to calculate a rating using Table VII. 38 C.F.R. § 4.86. Entitlement to an initial compensable rating for bilateral hearing loss The present claim for an increased rating arises from service connection for bilateral hearing loss that was originally established in a November 2015 rating decision, effective August 5, 2014. The Veteran contends that the severity of the hearing loss disability warrants a compensable disability rating. The Veteran is appealing the initial disability rating assigned. Therefore, the claim requires consideration of the entire time period for which service connection is established and the Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). On private examination in March 2012, pure tone thresholds, in decibels, were:   HERTZ 1000 2000 3000 4000 Average RIGHT 35 40 50 55 45 LEFT 50 55 55 60 55 Speech audiometry testing found speech recognition ability of 90 percent in both the right and left ear. The examiner opined that the Veteran had mild sensorineural hearing loss in both ears, with the left ear being worse than the right ear. Applying the findings of the March 2012 examination to the rating criteria for hearing impairment, the Board finds that the criteria for a rating in excess of 0 percent have not been met. The Veteran’s hearing acuity was measured using 38 C.F.R. § 4.85, Table VI. 38 C.F.R. § 4.86(a). Under Table VI, the right ear hearing acuity was manifested by a level II impairment, and the left ear was manifested by a hearing acuity of a level II impairment. Applying those findings to 38 C.F.R. § 4.85, Table VII of the Rating Schedule results in a 0 percent rating for bilateral hearing loss. On VA examination in October 2015, pure tone thresholds, in decibels, were: HERTZ 1000 2000 3000 4000 Average RIGHT 35 45 60 55 48.75 LEFT 45 50 60 55 52.5 Speech audiometry testing using a Maryland CNC word list found speech recognition ability of 100 percent in the right ear and 96 percent in the left ear. The examiner opined that the Veteran had sensorineural hearing loss in both ears. Applying the findings of the October 2015 VA examination to the rating criteria for hearing impairment, the Board finds that the criteria for a rating in excess of 0 percent have not been met. The Veteran’s hearing acuity was measured using 38 C.F.R. § 4.85, Table VI. 38 C.F.R. § 4.86(a). Under Table VI, the right ear hearing acuity was manifested by a level I impairment, and the left ear was manifested by a hearing acuity of a level I impairment. Applying those findings to 38 C.F.R. § 4.85, Table VII of the Rating Schedule results in a 0 percent rating for bilateral hearing loss. As a preliminary matter, the Board observes that the pure tone thresholds recorded on all of the audiological evaluations do not show exceptional hearing impairment as defined by regulation, as the pure tone threshold at each of the four specified frequencies of 1000, 2000, 3000, and 4000 Hertz is not 55 decibels or more, and the pure tone threshold is not 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz. Thus, Table VIa is not for application. 38 C.F.R. § 4.86. To the extent that the Veteran and other lay persons contend that his bilateral hearing loss is more severe than currently evaluated, the Board observes that the Veteran, while competent to report symptoms such as difficulty hearing with noise and groups, is not competent to report that his hearing acuity is sufficient to warrant a compensable evaluation under VA’s tables for rating hearing loss disabilities. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). The Board finds that VA examination audiogram results are contemporaneous and indicative of the severity of the Veteran’s current disability. Accordingly, these results are the most probative evidence in determining whether the Veteran’s hearing disability warrants a higher disability rating. The Board has carefully considered the Veteran’s assertions and in no way discounts the Veteran’s asserted difficulties or his assertions that his bilateral hearing loss should be rated higher. However, it must be emphasized that the assignment of a disability rating for hearing impairment is derived by a mechanical application of the rating schedule to the numeric designation assigned after audiometry results are obtained. Therefore, the Board has no discretion in this matter and must predicate its determination on the basis of the results of the audiology studies of record. Lendenmann v. Principi, 3 Vet. App. 345 (1992). The Board is bound by law to apply VA’s rating schedule based on the audiometry results. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Therefore, a compensable disability rating for bilateral hearing loss is not warranted because the preponderance of the evidence is against the assignment of any higher rating. The Board has carefully considered the Veteran’s assertions. However, it must be emphasized that the assignment of a disability rating for hearing impairment is derived by a mechanical application of the rating schedule to the numeric designation assigned after audiometry results are obtained. Therefore, the Board has no discretion in this matter and must predicate its determination on the basis of the results of the audiology studies of record. Lendenmann v. Principi, 3 Vet. App. 345 (1992). The Board is bound by law to apply VA’s rating schedule based on the audiometry results. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Therefore, a compensable disability rating for bilateral hearing loss is not warranted because the preponderance of the evidence is against the assignment of any higher rating. Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Kass, Associate Counsel