Citation Nr: 18159592 Decision Date: 12/20/18 Archive Date: 12/19/18 DOCKET NO. 13-28 980 DATE: December 20, 2018 ORDER Entitlement to a compensable rating for bilateral hearing loss prior to October 30, 2017 and in excess of 20 percent, thereafter, is denied. FINDING OF FACT The Veteran’s service-connected bilateral hearing loss prior to October 30, 2017, was manifested by no worse than Level III hearing acuity in his right ear and Level I hearing acuity in his left ear; and thereafter, by no worse than Level VII hearing acuity in his right ear and Level IV hearing acuity in his left ear. CONCLUSION OF LAW The criteria for an initial compensable rating for bilateral hearing loss prior to October 30, 2017, and in excess of 20 percent thereafter, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.85, Diagnostic Code 6100.   REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1969 to September 1971, to include service in the Republic of Vietnam from June 1970 to October 1970. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a January 2012 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. The Veteran testified at a Board hearing before the undersigned Veterans Law Judge (VLJ) in October 2016. In September 2017, the Board remanded this matter for further evidentiary development. Subsequent to the Board remand, the RO granted the remaining issues on appeal. Consequently, only the issue of entitlement to an increased rating for hearing loss remains on appeal. Disability ratings are determined by comparing a Veteran’s symptoms with criteria set forth in VA’s Schedule for Rating Disabilities, which are based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher of the two evaluations is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. In cases where entitlement to compensation has already been established, and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings. See Francisco v. Brown, 7 Vet. App. 55 (1994); 38 C.F.R. § 4.2. In such cases, staged ratings are appropriate when the factual findings show distinct time periods where the service- connected disability exhibits symptoms that would warrant different ratings for each such distinct time period. The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. See generally Hart v. Mansfield, 21 Vet. App. 505 (2007). Evaluations of defective hearing range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of a controlled speech discrimination test (Maryland CNC) together with the average hearing threshold level measured by puretone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hertz). To evaluate the degree of disability from service-connected defective hearing, the rating schedule establishes 11 auditory hearing acuity levels designated from Level I, for essentially normal hearing acuity, through Level XI, for profound deafness. 38 C.F.R. §§ 4.85, Tables VI and VII, Diagnostic Code 6100 (2017). Disability ratings for hearing loss are derived from a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). An exceptional pattern of hearing impairment occurs when the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more. In that situation, 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. 38 C.F.R. § 4.86 (a) (2017). Further, when the average 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 will be considered separately. 38 C.F.R. § 4.86 (b). Here, the Veteran asserts that his service-connected hearing loss disability is more severely disabling than indicated by the present ratings. The Veteran underwent VA examination in February 2011. He reported having to ask people to repeat themselves frequently. He had difficulty with customers’ voices over the phone and in person. Puretone thresholds values revealed: HERTZ 500 1000 2000 3000 4000 RIGHT 25 40 70 75 80 LEFT 10 15 60 65 65 Average puretone thresholds were 66.25 in the right ear and 51.25 in the left ear. Speech discrimination scores were 84 percent for the right ear and 92 percent for the left ear. Applying the results from that examination to Table VI in 38 C.F.R. § 4.85 yields a finding of Level III hearing loss in the right ear and Level I in the left ear. Where hearing loss is at Level III in one ear and Level I in the other, a noncompensable percent rating is assigned under Table VII. The Board notes that the February 2011 audiogram results do not establish the requisite criteria for application of Table VIA. See 38 C.F.R. §§ 4.85, 4.86. Accordingly, the evidence is not sufficient to demonstrate that the Veteran’s hearing loss meets the criteria for a compensable rating prior to October 30, 2017. 38 C.F.R. § 4.85. Most recently, the Veteran underwent VA examination in October 2017. He reported not being able to understand people and problems hearing on the telephone.   Puretone thresholds values revealed: HERTZ 500 1000 2000 3000 4000 RIGHT 40 50 85 85 90 LEFT 35 40 75 75 75 Average puretone thresholds were 77.5 in the right ear and 66.25 in the left ear. Speech discrimination scores were 64 percent for the right ear and 80 percent for the left ear. Applying the results from that examination to Table VI in 38 C.F.R. § 4.85 yields a finding of Level VII hearing loss in the right ear and Level IV in the left ear. Where hearing loss is at Level VII in one ear and Level IV in the other, a twenty percent rating is assigned under Table VII. The Board notes that the October 2017 audiogram results do not establish the requisite criteria for application of Table VIA. See 38 C.F.R. §§ 4.85, 4.86. Accordingly, the evidence is not sufficient to demonstrate that the Veteran’s hearing loss meets the criteria for a rating in excess of 20 percent during the period on appeal. 38 C.F.R. § 4.85. (Continued on the next page)   As the preponderance of the evidence is against the claim for a rating in excess of 20 percent for bilateral hearing loss from October 30, 2017; there is no doubt to be resolved; and an increased rating is not warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3. M. HYLAND Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Gordon, Associate Counsel