Citation Nr: 18159734 Decision Date: 12/20/18 Archive Date: 12/19/18 DOCKET NO. 17-01 854 DATE: December 20, 2018 ORDER Entitlement to an initial compensable disability rating for bilateral hearing loss is denied. FINDING OF FACT Audiological evidence demonstrates that, for the period on appeal, the Veteran’s bilateral ear hearing loss was manifested by, at worst, Level II hearing acuity in the right ear and Level II hearing acuity in the left ear. CONCLUSION OF LAW The criteria for a compensable disability rating for bilateral hearing loss have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from July 1975 to July 1978 and from January 1979 to April 1991. 1. Entitlement to an initial compensable disability rating for bilateral hearing loss Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Although the disability must be considered in the context of the whole recorded history, including service medical records, the present level of disability is of primary concern in determining the current rating to be assigned. 38 C.F.R. § 4.2; Francisco v. Brown, 7 Vet. App. 55 (1994); Schafrath v. Derwinski, 1 Vet. App. 589 (1991). If the disability has undergone varying and distinct levels of severity throughout the entire time period the increased rating claim has been pending, staged ratings may be assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999); 38 C.F.R. § 4.2. Evaluations for hearing loss range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests in conjunction with the average hearing threshold levels as measured by pure tone audiometry tests in the frequencies 1,000, 2,000, 3,000, and 4,000 cycles per second. 38 C.F.R. § 4.85 (2016). “Pure tone threshold average” is the sum of the pure tone thresholds at 1000, 2000, 3000 and 4000 Hertz divided by four. This average is used in all cases (including those in §4.86) to determine the Roman numeral designation for hearing impairment from Table VI or VIA. 38 C.F.R. § 4.85, DC 6100. To evaluate the degree of disability from the Veteran’s hearing loss; the rating schedule establishes 11 auditory acuity levels, designated from level I for slightly impaired hearing acuity through level XI for profound deafness. Further, schedular disability ratings for hearing impairment are “derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered.” Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). In Martinak v. Nicholson, 21 Vet. App. 447 (2007), the Veterans’ Court of Appeals (Court) 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, 21 Vet. App. at 455. 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. For purposes of determining the appropriate rating for the period on appeal for the Veteran’s service-connected hearing loss, the Veteran’s audiological testing results from various examinations must be evaluated under the appropriate Hearing Impairment Tables provided in 38 C.F.R. § 4.85. The Veteran filed an initial claim for service connection for bilateral hearing loss on April 8, 2015. On examination in May 2015, the Veteran’s pure tone thresholds, in decibels, were recorded as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 15 25 35 45 LEFT 20 25 25 45 45 The frequency average was 30 decibels in the right ear, and 35 decibels in the left ear. Speech audiometry revealed speech recognition ability of 92 percent in the right ear, and 88 percent in the left ear. Based on the May 2015 VA examination and opinion, the RO granted service connection for bilateral hearing loss. A non-compensable rating was assigned, effective from April 8, 2015. The Veteran appealed the assigned rating. An additional VA examination was conducted in November 2016. On that examination, the Veteran’s pure tone thresholds, in decibels, were recorded as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 10 25 40 45 LEFT 25 25 30 45 50 The frequency average was 30 decibels in the right ear, and 38 decibels in the left ear. Speech audiometry revealed speech recognition ability of 88 percent in the right ear, and 96 percent in the left ear. For the period on appeal, at its worst, the Veteran’s right ear is assigned a Roman numeral of II, and the left ear is assigned a Roman numeral of II under Table VI in accordance with 38 U.S.C. § 4.86. The Roman numeral designation of II combined with the Roman numeral designation of II warrants a noncompensable disability rating under Table VII. See 38 C.F.R. §§ 4.85, 4.86. The evidence shows the Veteran’s hearing loss warrants a noncompensable rating for bilateral hearing loss. The claim for a higher rating must be denied. To the extent that the Veteran contends that his hearing loss is more severe than currently evaluated, the Board finds that the Veteran, while competent to report symptoms such as difficulty in hearing the radio or television, is not competent to report that his hearing acuity is of sufficient severity to warrant a higher compensable evaluation under VA’s tables for rating hearing loss disabilities because such an opinion requires medical expertise (training in evaluating hearing impairment), which he has not been shown to have. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Veteran is competent to report difficulty with communication as well difficulty hearing the radio and television. Those complaints are also contemplated by the rating criteria. Rossy v. Shulkin, 29 Vet. App. 142 (2017). Further, even after considering such contentions as to the effects of the disability on his daily life, the Board finds that the criteria for an evaluation of a compensable rating are not met. See Lendenmann v. Principi, 3 Vet. App. 345 (1992) (assignment of disability ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluation are rendered). MICHAEL A. HERMAN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M.E. Lee, Associate Counsel