Citation Nr: 19100745 Decision Date: 01/03/19 Archive Date: 01/03/19 DOCKET NO. 17-04 929 DATE: January 3, 2019 ORDER Entitlement to an initial compensable disability rating for bilateral hearing loss is denied. FINDING OF FACT The Veteran’s service-connected bilateral hearing loss has not been manifested by hearing acuity worse than Level II bilaterally. CONCLUSION OF LAW The criteria for a compensable schedular evaluation for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.321, 4.3, 4.7, 4.85, Diagnostic Code (DC) 6100 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran was awarded an initial noncompensable disability rating for bilateral hearing loss, effective October 24, 2013, by a June 2014 rating decision. 1. Entitlement to an initial compensable disability rating for bilateral hearing loss Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. The Schedule is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. When two evaluations are potentially applicable, VA will assign the higher evaluation when the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. VA will resolve reasonable doubt as to the degree of disability in favor of the Veteran. 38 C.F.R. § 4.1. If the evidence for and against a claim is in equipoise, the claim will be granted. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). As a result, a complete medical history of the Veteran is required for a ratings evaluation. This is in order to protect claimants against adverse decisions based on a single, incomplete, or inaccurate report and to enable VA to make a more precise evaluation. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In addition, VA has a duty to acknowledge and consider all regulations which are potentially applicable, and to explain the reasons and bases for its conclusions. 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 importance. Hart v. Nicholson, 21 Vet. App. 505, 509 (2007). Separate ratings may be assigned for separate periods of time based on the facts found, a practice known as “staged” ratings. Id. In evaluating service-connected hearing loss, disability ratings are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are performed. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992); 38 C.F.R. § 4.85. Evaluations of bilateral defective hearing range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests, together with the average hearing threshold level as measured by pure tone audiometric tests at the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hertz). To evaluate the degree of disability from bilateral defective hearing, the rating schedule establishes eleven auditory acuity levels designated from Level I, for essentially normal acuity, through Level XI, for profound deafness. Id. When the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more, 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. Each ear will be evaluated separately. See 38 C.F.R. § 4.86 (a). Similarly, if the pure tone threshold is 30 decibels or less at 1000 Hz, and 70 decibels or more at 2000 Hz, 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, and that numeral will be elevated to the next higher Roman numeral. Table VIa, “Numeric Designation of Hearing Impairment Based Only on Pure Tone Threshold Average,” is used to determine a Roman numeral designation (I through XI) for hearing impairment based only on the pure tone threshold average. Table VIa will be used when the examiner certifies that use of the speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc., or when indicated under the provisions of Section 4.86, described in the preceding paragraph. 38 C.F.R. § 4.85 (c). The Board further notes the United States Court of Appeals for Veterans Claims has 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 v. Nicholson, 21 Vet. App. 447, 455 (2007). The Veteran was awarded an initial noncompensable disability rating for bilateral hearing loss, effective October 24, 2013. On a private audiological evaluation in May 2010, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 20 50 70 75 LEFT 15 40 50 70 70 Average puretone thresholds in the right ear were 54 and 61 in the left ear. Speech audiometry revealed speech recognition ability of 92 percent in the right ear and of 100 percent in the left ear. However, the record shows that speech discrimination was evaluated using the NU-6 word list rather than the Maryland CNC word list as required under VA regulations. Accordingly, these results are not adequate for VA rating purposes. On the authorized audiological evaluation in May 2014, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 25 60 75 70 LEFT 15 40 55 75 80 Speech audiometry revealed speech recognition ability of 92 percent in the right ear and of 96 percent in the left ear. This examination included speech discrimination testing using the Maryland CNC word list. During the May 2015 examination, the Veteran was diagnosed with bilateral sensorineural hearing loss (in the frequency range of 500 – 4000 Hz) and sensorineural hearing loss (in the frequency range of 60 Hz or higher frequencies). Average puretone thresholds in the right ear were 58 and 63 in the left ear. This testing results in Roman Numeral designations of II bilaterally. Using the charts, this results in a noncompensable rating. On the authorized audiological evaluation in November 2017, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 35 45 60 75 80 LEFT 30 50 60 70 80 Speech audiometry revealed speech recognition ability of 100 percent in the right ear and of 92 percent in the left ear. The examiner noted that the word discrimination score was appropriate for the Veteran. It was noted that the Veteran had abnormal ipsilateral acoustic reflexes and contralateral reflexes in the bilateral ears. The examiner continued the Veteran’s diagnoses of bilateral sensorineural hearing loss (in the frequency range of 500 – 4000 Hz) and sensorineural hearing loss (in the frequency range of 60 Hz or higher frequencies). Average puretone thresholds in the right ear were 65 and 65 in the left ear. This testing results in Roman Numeral designations of II bilaterally. Using the charts, this results in a noncompensable rating. The Board recognizes the Veteran’s assertions that his hearing loss is more severe than the VA’s rating reflects, but the evidence of record does not demonstrate that the Veteran has the requisite medical training, expertise, or credentials needed to render a competent medical opinion as to the level of his disability. See Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (2007). As noted above, disability evaluations for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered. See Lendenmann, 3 Vet. App. 345. Accordingly, the criteria for a compensable rating for bilateral hearing loss have not been met. The evidence does not support the assignment of a compensable rating for bilateral hearing loss. None of the audiological examinations of record resulting in findings that would be consistent with a compensable evaluation under 38 U.S.C. § 3.385. Therefore, entitlement to an increased rating for the impairment associated with bilateral hearing loss is not warranted. Because the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not for application. See 38 U.S.C.A. § 5107; 38 C.F.R. §§ 4.3, 4.7. DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Nelson, Associate Counsel