Citation Nr: 18159542 Decision Date: 12/19/18 Archive Date: 12/19/18 DOCKET NO. 17-11 771 DATE: December 19, 2018 ORDER Entitlement to an initial compensable rating for right ear hearing loss is denied. FINDING OF FACT The Veteran’s service-connected right ear hearing loss is manifested by hearing acuity no worse than Level II, with no exceptional pattern of hearing loss. CONCLUSION OF LAW The criteria for the assignment of an initial compensable rating for the service-connected right ear hearing loss have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.85, Diagnostic Code 6100 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1957 to May 1961. The current matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. This appeal has been advanced on the Board’s docket pursuant to 38 U.S.C. § 7107(a)(2) (2012); 38 C.F.R. § 20.900(c) (2018). VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5103, 5103A (2012); 38 C.F.R. § 3.159 (2018). The Veteran’s claim stems from a fully developed claim submitted in August 2015. His signature on his claim, submitted via VA Form 21-526EZ, indicates that he received VCAA notice. 38 U.S.C. § 5103; 38 C.F.R. § 3.159(b). In a VA Form 9, the Veteran requested a new VA examination. He contends that the results from the November 2015 VA examination are inadequate for rating purposes because the examiner indicated to the Veteran that his hearing was “bad enough” to require the use of hearing aids. The Board does not doubt that the Veteran has hearing loss and that the clinical evidence clearly shows such hearing loss. However, the assignment of an appropriate rating for a hearing loss disability is determined through the mechanical application of the rating schedule to the numeric designations resulting from audiometric testing. As such, the Board does not find that the examination was inadequate merely because it did not reveal that the Veteran qualified for a higher disability rating. Additionally, the Board notes that there are no post-service medical treatment records associated with the Veteran’s claims file. However, neither the Veteran nor his representative have indicated that there are any additional records that VA should seek to obtain on his behalf. Therefore, VA has fulfilled its obligation to assist the Veteran in developing this claim, including with respect to a VA examination. Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Entitlement to a compensable rating for right ear hearing loss 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; 38 C.F.R. § 4.1. 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. 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 a 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). The Rating Schedule provides a table (Table VI) to determine a Roman numeral designation (I through XI) for hearing impairment, based on puretone thresholds and controlled speech discrimination (Maryland CNC) testing. Table VII is used to determine the rating assigned by combining the Roman numeral designations for hearing impairment of each ear. 38 C.F.R. § 4.85. The “puretone threshold average” as used in Table VI, is the sum of the puretone thresholds at 1000, 2000, 3000, and 4000 Hertz, divided by four. This average determines the Roman numeral designation for hearing impairment from Table VI or Via. 38 C.F.R. § 4.85(d). Ratings for hearing impairment are derived by the mechanical application of the Rating Schedule to the numeric designations assigned after audiometry evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345 (1992). When the puretone threshold at each of the four specified frequencies (1,000, 2,000, 3,000, and 4,000 Hertz) is 55 decibels or more, Table VI or Table VIa is to be used, whichever results in the higher Roman numeral. 38 C.F.R. § 4.86(a). Additionally, when the puretone threshold is 30 decibels or less at 1,000 Hertz, and 70 decibels or more at 2,000 Hertz, Table VI or Table VIa is to be used, whichever results in the higher Roman numeral. Thereafter, that numeral will be elevated to the next higher Roman numeral. 38 C.F.R. § 4.86(b). 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 hearing aids. 38 C.F.R. § 4.85(a). Further, in Martinak v. Nicholson, 21 Vet. App. 447 (2007), the United States Court of Appeals for Veterans Claims (Court) held that, in addition to dictating objective test results, a VA audiologist must describe the functional effects caused by a hearing disability in his or her final report. The Court also noted, however, that, even if an audiologist’s description of the functional effects of a veteran’s hearing disability was somehow defective, the veteran bears the burden of demonstrating any prejudice caused by a deficiency in the examination. Id. On VA audiological examination in November 2015, puretone thresholds for the Veteran’s right ear, in decibels, at 1000, 2000, 3000, and 4000 Hertz were as follows: 25, 30, 65, and 75, for an average of 49. The speech recognition score, using the Maryland CNC Test, was 86 percent in his right ear. Evaluating these VA audiological test results cited above, the Board finds that, when the puretone threshold averages and the speech recognition scores for the Veteran’s right ear from the November 2015 VA examination are applied to Table VI, the numeric designation of hearing impairment is Level II for the right ear. When this numeric designation for the right ear is considered together with the nonservice- connected left ear and applied to Table VII (Percentage Evaluation for Hearing Impairment-Diagnostic Code 6100), the percentage of disability for hearing impairment is zero percent, and a compensable rating is therefore not warranted. 38 C.F.R. § 4.85, DC 6100. Further, the November 2015 VA examiner noted that there was no impact on the Veteran’s conditions of daily life, including his ability to work. Martinak, 21 Vet. App. at 447. Throughout the period on appeal, the provisions of 38 C.F.R. § 4.86, which address exceptional patterns of hearing loss, are not applicable. There is no showing that the Veteran had an exceptional pattern of hearing loss in his right ear at any time during this appeal period. Consideration has also been given to the functional effects of the Veteran’s right ear hearing loss. However, as noted above, the VA examination noted that his right ear hearing loss had no impact on his conditions of daily life or ability to work. Although the Board recognizes that the Veteran may require the use of hearing aids, the evaluation of hearing loss is reached by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered. Lendenmann, 3 Vet. App. at 345. The requirements of 38 C.F.R. § 4.85 set out the percentage ratings for exact numerical levels of impairment required for an evaluation of hearing loss, which requires specific testing. In this case, such mechanical application does not warrant a compensable rating. Accordingly, the Board finds that the preponderance of the evidence is against the claim for an initial compensable rating for the service-connected right ear hearing loss. This claim, therefore, must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2018). THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Hite, Associate Counsel