Citation Nr: 18161297 Decision Date: 12/31/18 Archive Date: 12/31/18 DOCKET NO. 16-42 225 DATE: December 31, 2018 ORDER Entitlement to a rating in excess of 10 percent for bilateral hearing loss is denied. FINDING OF FACT Throughout the appeal period, the Veteran has manifested no worse than Level II hearing acuity in the right ear and Level III hearing acuity in the left ear. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for bilateral hearing loss have not been satisfied. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.85, 4.86, Diagnostic Code (DC) 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1969 to August 1971. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Decatur, Georgia. The Veteran filed a Notice of Disagreement (NOD) for the rating decision with respect to the claim in October 2014. A Statement of the Case (SOC) was issued in June 2016 and the Veteran filed his substantive appeal in August 2016. Disability ratings are determined by applying the criteria set forth in the 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 evaluations 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. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran’s disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. The Veteran contends that the medical evidence of his bilateral hearing loss, requiring the use of a hearing aid, is more disabling than indicated by his current 10 percent disability rating. Ratings for hearing loss disability are based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination testing together with the average hearing threshold level in decibels (dB) as measured by pure tone audiometric tests in the frequencies 1,000, 2,000, 3,000 and 4,000 Hertz (Hz). See 38 C.F.R. § 4.85, DC 6100. An examination for hearing impairment for VA purposes must include a controlled speech discrimination test (Maryland CNC). Id. To evaluate the degree of disability from defective hearing, the rating schedule requires assignment of a Roman numeral designation, ranging from I to XI. Other than exceptional cases, VA arrives at the proper designation by mechanical application of Table VI, which determines the designation based on results of standard test parameters. Id. Table VII is then applied to arrive at a rating based upon the respective Roman numeral designations for each ear. Id. Exceptional patterns of hearing impairment allow for assignment of the Roman numeral designation through the use of Table VI or an alternate table, Table VIA, whichever is more beneficial to the Veteran. 38 C.F.R. § 4.86. This applies to two patterns. In both patterns each ear will be evaluated separately. Id. The first pattern is where the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hz) is 55 dB or more. 38 C.F.R. § 4.86 (a). The second pattern is where the pure tone threshold is 30 decibels or less at 1000 Hz and 70 dB or more at 2000 Hz. Id. If the second pattern exists, the Roman numeral will be elevated to the next higher numeral. Id. As the evidence described below shows, neither of the patterns are present in this case. The Veteran underwent VA examinations for hearing loss in April 2017 and October 2018. The October 2018 examination postdates the most recent supplemental statement of the case issued in May 2017. The October 2018 examination was apparently conducted in response to a new claim for an increase received by VA in October 2018. That examination report was reviewed by the agency of original jurisdiction (AOJ) in a rating decision issued in October 2018. Hence, all relevant evidence of record has been reviewed by the AOJ. Given this fact, the Board concludes that there is no prejudice to the Veteran in adjudicating this appeal at present to include consideration of all relevant evidence of record. The April 2017 VA examination revealed right ear auditory thresholds in the frequencies 1000, 2000, 3000, and 4000 Hz as 10, 35, 70, and 75 dB, respectively. For the left ear, auditory thresholds in the same frequencies were recorded as 20, 45, 80, and 80 dB. Average loss in the right ear was 47.5 Hz and average loss in the left ear was 56.25 Hz. Speech recognition, using the Maryland CNC word list, was 94 percent in the right ear and 94 percent in the left ear. The results of this examination correspond to Level I hearing in the right ear and Level I hearing in the left ear. 38 C.F.R. § 4.85 (b). When these values are applied to Table VII, a noncompensable disability rating is assigned. 38 C.F.R. § 4.85. The October 2018 VA examination revealed right ear auditory thresholds in the frequencies 1000, 2000, 3000, and 4000 Hz as 30, 40, 75, and 105+ dB, respectively. For the left ear, auditory thresholds in the same frequencies were recorded as 25, 55, 85, and 105+ dB. Average loss in the right ear was 62.5 Hz and average loss in the left ear was 67.5 Hz. Speech recognition, using the Maryland CNC word list, was 92 percent in the right ear and 88 percent in the left ear. The results of this examination correspond to Level II hearing in the right ear and Level III hearing in the left ear. 38 C.F.R. § 4.85 (b). When these values are applied to Table VII, a noncompensable disability rating is assigned. 38 C.F.R. § 4.85. The Board has also considered whether a rating in excess of 10 percent for hearing loss is warranted under 38 C.F.R. § 4.86. Based on the audiometric findings of both the April 2017 and the October 2018 VA examination, however, the Veteran’s disability did not meet the requirements of 38 C.F.R. § 4.86. In this regard, the Veteran did not have pure tone thresholds of 55 dB or more at each of the frequencies of 1000, 2000, 3000 and 4000 Hz or a pure tone threshold of 30 dB or less at 1000 Hz and 70 dB or more at 2000 Hz. Based on these results, the Board concludes that a rating in excess of 10 percent for the Veteran’s bilateral hearing loss is not warranted. It is apparent that the assigned disability evaluation for the appeal period for the Veteran’s bilateral hearing loss is accurate and appropriately reflects his hearing loss under the provisions of 38 C.F.R. §§ 4.85 and 4.86. The April 2017 examination report includes the Veteran’s description of the functional impact of his hearing loss as difficulty understanding consonant sounds and sirens. The October 2018 examination report documents the Veteran’s report of his hearing loss functional impact as follows: “I think it happen to cold weather not loud sounds cause I have a setback attitude and I have a real hard time with “ and odd numbers (357). Depression, pain, stress. Lost two jobs, need anti-depressants.” Also noted was his report that as to work, the functional impact was “Uncoordinated in 3 odd number or words, depression, set-back attitude with stress, pain from stress of hearing, unbalanced, used to take “ for better”. The Board finds these reports insufficient to warrant referral for extraschedular consideration. The April 2017 functional impact statement amounts to no more than difficulty hearing, which is contemplated by the rating schedule. The October 2018 report is lacking in a proximate relationship between his hearing loss and what he describes. In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to a rating in excess of 10 percent for his bilateral hearing loss under 38 C.F.R. §§ 4.85 or 4.86, DC 6100. The Board finds that the preponderance of the evidence is against a rating in excess of 10 percent for bilateral hearing loss, and the appeal as to a higher rating for this disability must be denied. There is no indication that his disability is not contemplated by the schedular criteria. There is no reasonable doubt to be resolved as to this issue. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3. JAMES G. REINHART Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N. Garver, Law Clerk