Citation Nr: 18129303 Decision Date: 08/27/18 Archive Date: 08/24/18 DOCKET NO. 16-29 265 DATE: August 27, 2018 ORDER Entitlement to an initial compensable disability rating for bilateral hearing loss and a rating exceeding 10 percent beginning April 29, 2015 is denied. FINDINGS OF FACT 1. Prior to April 29, 2015, audiometric examinations correspond to no greater than a level III hearing loss in the right ear and a level III hearing loss in the left ear. 2. Beginning April 29, 2015, audiometric examinations correspond to no greater than a level III hearing loss in the right ear and a level IV hearing loss in the left ear. CONCLUSION OF LAW The criteria for entitlement to an initial compensable disability rating for bilateral hearing loss and a rating exceeding 10 percent beginning April 29, 2015 have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.383, 4.1, 4.7, 4.85 (Diagnostic Code 6100), 4.86 (2017).   REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from July 1956 to August 1960. This appeal comes to the Board of Veterans’ Appeals (Board) from a December 2010 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded this matter in July 2017 for further development including affording the Veteran a current examination of the severity of his bilateral hearing loss. The Agency of Original Jurisdiction (AOJ) has obtained another VA examination of the Veteran’s hearing loss as requested. On return of this matter to the Board, the Veteran and his representative have not raised any specific issues with the duty to notify or duty to assist in regard to the Veteran’s claim for entitlement to higher disability ratings for his bilateral hearing loss. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). Legal Criteria A disability rating is determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two evaluations shall be applied, the higher evaluation 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. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings.” Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Evaluations for defective hearing are based upon organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests, along with the average hearing threshold level as measured by puretone audiometric tests in the frequencies of 1000, 2000, 3000, and 4000 Hertz. 38 C.F.R. § 4.85, Tables VI, VII. To evaluate the degree of disability for service-connected bilateral hearing loss, the rating schedule establishes eleven auditory acuity levels, designated from level I for essentially normal acuity, through level XI for profound deafness. Table VI is used to determine the Roman numeric designation, based on test results consisting of puretone thresholds and Maryland CNC test speech discrimination scores. The numeric designations are then applied to Table VII to determine the appropriate rating for hearing impairment. See id. Where there is an exceptional pattern of hearing impairment, a rating based on puretone thresholds alone may be assigned (Table VIA). This alternative method for rating hearing loss disability may be applied if the puretone thresholds at 1000, 2000, 3000, and 4000 Hertz are all at 55 decibels or higher. 38 C.F.R. § 4.86(a). It may also be applied if the puretone threshold at 1000 Hertz is 30 or less and at 2000 Hertz is 70 or more. 38 C.F.R. § 4.86(b). In second case, the Roman numeral will then be elevated to the next higher Roman numeral. See id. When an exceptional pattern applies, the method producing the highest Roman numeral should be used. See id. Each ear is to be evaluated separately under this part of the regulations. 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 (1992). Analysis The Veteran was afforded a VA examination of his hearing loss in accordance with the standards outlined in 38 C.F.R. § 4.85 in November 2010. Audiological examination puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 15 25 25 30 LEFT 20 20 25 40 50 The averages of the puretone thresholds findings at 1000, 2000, 3000, and 4000 Hertz were 23.75 decibels in the right ear and 33.75 decibels in the left ear. The speech recognition scores were 88 in each ear. Applying the test results to Table VI of the Rating Schedule results in a Roman numeric designation of level II in each ear. 38 C.F.R. § 4.85, Table VI. Applying the Roman numeric designations of II and II to Table VII, the result is a noncompensable rating for the Veteran’s bilateral hearing loss. 38 C.F.R. § 4.85, Table VII, Diagnostic Code 6100. The Veteran was afforded a second VA examination of his hearing loss in accordance with the standards outlined in 38 C.F.R. § 4.85 in October 2011. Audiological examination puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 30 35 35 50 LEFT 25 20 30 40 55 The averages of the puretone thresholds findings at 1000, 2000, 3000, and 4000 Hertz were 37.5 decibels in the right ear and 36.25 decibels in the left ear. The speech recognition scores were 88 in the right ear and 86 in the left ear. Applying the test results to Table VI of the Rating Schedule results in a Roman numeric designation of level II in each ear. 38 C.F.R. § 4.85, Table VI. Applying the Roman numeric designations of II and II to Table VII, the result is a noncompensable rating for the Veteran’s bilateral hearing loss. 38 C.F.R. § 4.85, Table VII, Diagnostic Code 6100. The Veteran was afforded a third VA examination of his hearing loss in accordance with the standards outlined in 38 C.F.R. § 4.85 in January 2013. Audiological examination puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 35 40 40 55 LEFT 30 35 40 40 50 The averages of the puretone thresholds findings at 1000, 2000, 3000, and 4000 Hertz were 42.5 decibels in the right ear and 41.25 decibels in the left ear. The speech recognition scores were 84 in the right ear and 80 in the left ear. Applying the test results to Table VI of the Rating Schedule results in a Roman numeric designation of level II in the right ear and III in the left ear. 38 C.F.R. § 4.85, Table VI. Applying the Roman numeric designations of II and III to Table VII, the result is a noncompensable rating for the Veteran’s bilateral hearing loss. 38 C.F.R. § 4.85, Table VII, Diagnostic Code 6100. The Veteran was afforded a fourth VA examination of his hearing loss in accordance with the standards outlined in 38 C.F.R. § 4.85 in February 2014. Audiological examination puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 30 35 30 35 35 LEFT 35 30 25 25 40 The average of the puretone thresholds findings at 1000, 2000, 3000, and 4000 Hertz were 33.75 decibels in the right ear and 30 decibels in the left ear. The speech recognition scores were 80 in the right ear and 84 in the left ear. Applying the test results to Table VI of the Rating Schedule results in a Roman numeric designation of level III in the right ear and II in the left ear. 38 C.F.R. § 4.85, Table VI. Applying the Roman numeric designations of III and II to Table VII, the result is a noncompensable rating for the Veteran’s bilateral hearing loss. 38 C.F.R. § 4.85, Table VII, Diagnostic Code 6100. On April 29, 2015, the Veteran attended an audiology consultation at Beckly VA Medical Center. The audiologist conducted a hearing test in the context of the Veteran’s history and opined that it revealed a mild progressing to severe bilateral sensorineural hearing loss. The average of the puretone threshold findings at 1000, 2000, 3000, and 4000 Hertz was approximately 40 decibels in each ear. The speech recognition scores were 76 in the right ear and 72 in the left ear. Applying the test results to Table VI of the Rating Schedule results in a Roman numeric designation of level III in the right ear and IV in the left ear. 38 C.F.R. § 4.85, Table VI. Applying the Roman numeric designations of III and IV to Table VII, the result is a 10 percent rating for the Veteran’s bilateral hearing loss. 38 C.F.R. § 4.85, Table VII, Diagnostic Code 6100. While it is not clear the audiologist used a Maryland CNC word list, the AOJ afforded the benefit of the doubt and assigned a 10 percent rating based on the findings.   The Veteran was last afforded a VA examination of his hearing loss in accordance with the standards outlined in 38 C.F.R. § 4.85 in September 2017. Audiological examination puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 25 30 45 55 LEFT 20 30 30 40 55 The average of the puretone thresholds findings at 1000, 2000, 3000, and 4000 Hertz were 38.75 decibels in each ear. The speech recognition scores were 92 in the right ear and 96 in the left ear. Applying the test results to Table VI of the Rating Schedule results in a Roman numeric designation of level I in each ear. 38 C.F.R. § 4.85, Table VI. Applying the Roman numeric designations of I and I to Table VII, the result is a noncompensable rating for the Veteran’s bilateral hearing loss. 38 C.F.R. § 4.85, Table VII, Diagnostic Code 6100. In light of the examinations above, the Veteran’s hearing loss is staged based on a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345 (1992). While the most recent VA examination indicates the Veteran’s current disability rating for bilateral hearing loss should be noncompensable, the Board finds the current 10 percent rating should be maintained considering significant variability of repeat testing. The Board finds there are no other audiometric test results of record which comply with the requirements of 38 C.F.R. § 4.85 for rating purposes that indicate the Veteran’s hearing was worse than assessed by the VA examiners during the relevant periods at issue. Neither the Veteran nor his representative identified any additional evidence in support of higher ratings based on audiometric evaluations. Accordingly, as the evidence of record does not support a finding that the Veteran’s hearing loss was more severe than currently rated during each period at issue, the Veteran’s claim for higher disability ratings for his bilateral hearing loss must be denied. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Michael Duffy, Associate Counsel