Citation Nr: 19190899 Decision Date: 12/03/19 Archive Date: 12/03/19 DOCKET NO. 16-14 692 DATE: December 3, 2019 ORDER An initial rating in excess of 50 percent for bilateral hearing loss is denied. FINDING OF FACT The Veteran’s current bilateral hearing loss has been manifested by hearing acuity of no worse than Level VIII in the right ear and no worse than Level IX in the left ear. CONCLUSION OF LAW The criteria for a rating in excess of 50 percent for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1979 to February 1986. These matters are before the Board of Veterans’ Appeals (Board) on appeal from a March 2013 rating decision of a Department of Veteran Affairs (VA) Regional Office (RO). In April 2016, the Veteran perfected his appeal and requested a Board videoconference hearing. Subsequently, in October 2019, the Veteran withdrew his hearing request. Additionally, the Board notes the Veteran chose to solely pursue the issue of bilateral hearing loss when he perfected his appeal in April 2016 as such the TDIU matter was not perfected and is not before the Board at this time. Increase Rating Entitlement to an initial rating in excess of 50 percent for bilateral hearing loss. Disability evaluations are determined by comparing a Veteran’s present symptomatology with criteria set forth in VA’s Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C. §§ 1155; 38 C.F.R. Part 4. In the case of an initial rating, the entire evidentiary record from the time of a Veteran’s claim for service connection to the present is of importance in determining the proper evaluation of disability. Fenderson v. West, 12 Vet. App. 119, 126 (1999). Additionally, the Board must consider whether the disability has undergone varying and distinct levels of severity while the claim has been pending and provide staged rating during those periods. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). Hearing loss is rated under the criteria of 38 C.F.R. § 4.85, Code 6100. Evaluations of defective hearing are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered. See Lendenmann v. Principi, 3 Vet. App. 345 (1993). Hearing impairment is determined by averaging the hearing impairment at each of the four designated frequencies (1000, 2000, 3000, and 4000 Hertz). 38 C.F.R. § 4.85. This results in a puretone threshold average for each ear. Id. The puretone threshold average is charted, in conjunction with the speech discrimination percentage for that ear, in Table VI of 38 C.F.R. § 4.85, and the intersection of the scores provides the percentage of disability. Id. An exceptional pattern of hearing impairment occurs either when the puretone threshold at each of the four specified frequencies is 55 decibels or more, 38 C.F.R. § 4.86 (a), or when the puretone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz, 38 C.F.F. § 4.86(b). If either of these provisions applies, each ear is evaluated separately. 38 C.F.R. § 4.86. The Roman numeral designation for the ear with an exceptional pattern of hearing impairment is derived from Table VI or VIa, whichever results in the higher numeral. When 38 C.F.R. § 4.86 (b) is applicable, the assigned numeral is elevated to the next higher Roman numeral. Table VIa will also be applied when an examiner certifies that the use of the speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc. 38 C.F.R. § 4.85(c). If impaired hearing is service-connected in only one ear, in order to determine the percentage evaluation from Table VII, the non-service-connected ear will be assigned a Roman Numeral designation for hearing impairment of I, subject to the provisions of § 3.383 of this chapter. See 38 C.F.R. § 4.85(f). The schedular rating criteria specifically provide for ratings based on all levels of hearing loss in various contexts, as measured by both audiometric testing and speech recognition testing. The ability of the Veteran to hear sounds and voices is measured and rated by an audiometric test, as this test measures different frequencies and captures high frequency hearing loss from sources including voices, music, sirens, and certain high-pitched sounds. The ability of the Veteran to understand people and having to ask others to repeat themselves on a regular basis is rated by a speech recognition test, as this test measures conversation comprehension, words, and missed conversations. The schedular rating criteria specifically provide for ratings based on all levels of hearing loss, including exceptional hearing patterns, and as measured by both audiometric testing and speech recognition testing. See Doucette v. Shulkin, 28 Vet. App. 366, 369 (2017) (holding that “the rating criteria for hearing loss contemplate the functional effects of difficulty hearing and understanding speech”). When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. The Veteran filed a claim to reopen the issue of service connection for bilateral hearing loss in March 2012. As such, the period of appeal is from one year prior to this date. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). After review of the relevant medical and lay evidence the Board finds that a rating in excess of 50 percent for bilateral hearing loss is not warranted. In February 2012, a private treatment report reflects that the Veteran complained of a gradual onset of constant episodes of moderate bilateral hearing loss, described as pressure on his ears. Episodes started approximately three years prior. Currently, he was experiencing hearing loss symptoms most likely caused by loud noise exposure. Symptoms improved with increasing audio volumes; however, symptoms worsened in crowded rooms. In March 2016, the Veteran underwent a VA audiological examination. The examiner recorded puretone threshold levels of: HERTZ 500 1000 2000 3000 4000 RIGHT 75 85 75 65 65 LEFT 60 85 80 75 70 Initially the Board notes the threshold readings meet the criteria for exceptional hearing loss under 38 C.F.R. § 4.86(a) because each of the four specified frequencies 1000, 2000, 3000, and 4000 have reading above 55 decibels. The average puretone threshold for the left ear is 78 and for the right ear is 73. Speech audiometry revealed speech recognition ability of 50 percent for the right ear and 46 percent for the left ear. Using Table VI, the left ear has hearing of Level IX and the right ear has Level VIII. When applied to Table VII, these hearing levels result in a 50 percent rating. Alternatively, applying the findings from the March 2016 examination to Table VIa in 38 C.F.R. § 4.85 yields a finding of hearing loss of Level VI in the right ear and Level VII hearing loss in the left ear. When the assigned Roman numerals are applied to Table VII, results reveal a 30 rating for the Veteran’s bilateral hearing loss disability. 38 C.F.R. § 4.85. As the results from Table VI result in the higher numeral, these results are utilized and produce a 50 percent rating for the Veteran’s service-connected hearing loss. The Board acknowledges the Veteran’s assertions that his hearing disability is entitled to an initial rating in excess of 50 percent. Specifically, his own lay statements and the statements provided when he perfected his appeal in April 2016. Where he asserted a decreased quality of life and having to step down from his supervisory role to a lesser position due to hearing difficulties. The observable symptoms regarding the Veteran’s hearing loss were considered competent and credible. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, the Board finds such statement are outweighed by the evidence gather via a training audio professional at the March 2016 examination. As such, this evidence is given more weight. Additionally, the pertinent regulations instruct the rater to these audiological findings. See 38 C.F.R. § 4.85. Additionally, as described above, the March 2016 examination reflected no more than Level VIII acuity in the right ear and Level IX in the left ear throughout the rating period. Such findings do not support assignment of a rating in excess of 50 percent. Additionally, the Board notes VA treatment in April 2016, where the Veteran was fitted for hearing aids. Notably, the fitting was just one month after the March 2016 VA examination and the examination is mentioned in the treatment record. Thus, the Board does not find that the Veteran’s puretone readings would have changed drastically in a month. In weighing the relevant medical and lay evidence of record, the Board finds that the Veteran’s diminished hearing, to include the audiometric findings, fall squarely within the criteria for a 50 rating under the provisions of 38 C.F.R. § 4.86(a). See Doucette v. Shulkin, 28 Vet. App. 366, 368-69 (2017) (holding that “the rating criteria for hearing loss contemplate functional effects of decreased hearing and difficulty understanding speech in an everyday work environment”-which “are precisely the effects that VA’s audiometric tests are designed to measure”). Therefore, the Board concludes that a rating in excess of 50 percent is not warranted. In sum, the Board finds that the preponderance of the evidence is against the claim of entitlement to a rating in excess of 50 percent for the Veteran’s bilateral hearing loss disability. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable, and the claim must be denied. See 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 4.3, 4.7. Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A.M. Williams, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.