Citation Nr: 19142002 Decision Date: 05/31/19 Archive Date: 05/31/19 DOCKET NO. 16-23 792 DATE: May 31, 2019 ORDER Entitlement to an initial compensable rating of 10 percent, but no higher, for service-connected bilateral hearing loss, is granted. FINDING OF FACT Resolving all reasonable doubt in the Veteran’s favor, audiological evidence demonstrates that, for the entire appeal period, his service-connected bilateral hearing loss has been manifested by hearing acuity no worse than Level III in his right ear and Level IV in his left ear, with no exceptional hearing loss pattern in either ear. CONCLUSION OF LAW Resolving all reasonable doubt in the Veteran’s favor, the criteria for a disability rating of 10 percent, but no higher, for his service-connected bilateral hearing loss have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from February 1967 to September 1968. Increased Rating Disability ratings are determined by comparing a Veteran’s present symptoms with criteria set forth in VA’s Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Staged ratings compensate the level of disability (which may vary at times) throughout the appeal period. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). When a question arises as to which of two ratings applies under a particular diagnostic code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. In cases where the evaluation of hearing loss is at issue, an examination for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a puretone audiometry test. Examinations will be conducted without the use of hearing aids. 38 C.F.R. § 4.85(a). A rating for hearing loss is determined by a mechanical application of the rating schedule to the numeric designations assigned based on audiometric test results. Lendenmann v. Principi, 3 Vet. App. 345 (1992). Evaluations of defective hearing range from noncompensable to 100 percent. The basic method of rating hearing loss involves audiological test results of organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests (Maryland CNC), together with the average hearing threshold level as measured by puretone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 Hertz. Puretone threshold average is the sum of puretone thresholds at 1000, 2000, 3000, and 4000 Hertz divided by four. To evaluate the degree of disability of service-connected hearing loss, the rating schedule establishes eleven auditory acuity levels ranging from numeric level I for essentially normal acuity, through numeric level XI for profound deafness. 38 C.F.R. § 4.85, Diagnostic Code 6100. The horizontal lines in Table VI (in 38 C.F.R. § 4.85) represent eleven categories of the percentage of discrimination based on the controlled speech discrimination test. The vertical columns in Table VI represent eleven categories of decibel loss based on the pure tone audiometry test. The numerical designation of impaired efficiency (I through XI) will be determined for each ear by intersecting the horizontal row appropriate for the percentage of discrimination and the vertical column appropriate to pure tone decibel loss. For example, with the percentage of discrimination of 70 and an average pure tone decibel loss of 64, the numeric designation level is “V” for one ear. The same procedure will be followed for the other ear. 38 C.F.R. § 4.85(b). The percentage evaluation will be found from Table VII (in 38 C.F.R. § 4.85) by intersecting the horizontal row appropriate for the numeric designation for the ear having the poorer hearing and the vertical column appropriate to the numeric designation level for the ear having the better hearing. For example, if the better ear has a numeric designation level of “V,” and the poorer ear has a numeric designation level of “VII,” the percentage evaluation is 30 percent. 38 C.F.R. § 4.85(e), Diagnostic Code 6100. The current rating criteria include an alternate method of rating exceptional patterns of hearing as defined in 38 C.F.R. § 4.86 (puretone threshold of 55 decibels or more at 1000, 2000, 3000, and 4000 Hertz as well as puretone threshold of 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event; or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Entitlement to an initial compensable disability rating for service-connected bilateral hearing loss The Veteran is service-connected for bilateral hearing loss with a noncompensable rating effective from June 3, 2015. He contends that his hearing loss warrants an initial compensable rating. The Board agrees that the Veteran’s hearing loss warrants a rating of 10 percent, but no higher, under 38 C.F.R. § 4.85, DC 6100. On the authorized audiological evaluation in November 2015, puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 30 20 20 25 LEFT 30 30 20 30 25 Speech audiometry revealed speech recognition ability of 88 percent in the Veteran’s right ear and 74 percent in his left ear. The average puretone threshold was 24 decibels in the right ear and 26 decibels in the left ear. The examiner diagnosed the Veteran with bilateral sensorineural hearing loss. The Veteran reported that the functional impact of his bilateral hearing loss includes speaking loudly, missing conversations, asking others to repeat themselves, and difficulty understanding the dialogue on television. On the December 2017 authorized audiological evaluation, puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 35 20 20 30 LEFT 35 35 20 35 25 Speech audiometry revealed speech recognition ability of 78 percent in the Veteran’s right ear and 80 percent in his left ear. The average puretone threshold was 26 decibels in the right ear and 29 decibels in the left ear. The examiner diagnosed the Veteran with sensorineural hearing loss in both the right and left ears. The Veteran reported the functional impact of his bilateral hearing loss as having to speak loudly and asking people to repeat themselves, and difficulty in hearing the television without his hearing aids. The Board has carefully reviewed the evidence of record and finds that the assignment of a 10 percent disability rating, but no higher, is warranted for the Veteran’s service-connected bilateral hearing loss during the entire appeal period. Applying the clinical findings of the November 2015 and December 2017 VA audiological examinations, separately, to Table VII, respectively, results in a zero percent evaluation. However, when the results of the two VA examinations are combined, a 10 percent evaluation, but no higher, is warranted. The point where the highest Roman numeral designation for the right ear intersects with the highest Roman numeral designation for the left ear, indicates a 10 percent evaluation. The findings of the November 2015 evaluation translate to Level II hearing loss in the right ear and Level IV hearing loss in the left ear, when applied to Table VI of the rating schedule. The findings of the December 2017 evaluation translate to Level III hearing loss in each ear when applied to Table VI of the rating schedule. As such, resolving reasonable doubt in the Veteran’s favor, the Board assigns his right ear the higher—Level III hearing loss (based on the December 2017 examination) and assigns his left ear the higher—Level IV hearing loss (based on the November 2015 examination). This level of hearing loss results in a 10 percent rating under Table VII of the rating schedule, pursuant to Diagnostic Code 6100. 38 C.F.R. § 4.85. Although the Board has combined the results of both VA exams to enable an evaluation that is more favorable to the Veteran, this does not result in a rating higher than 10 percent. 38 C.F.R. §§ 4.85, Table VI. Further, exceptional patterns of hearing impairment include when the pure tone threshold at each of the four specified frequencies is 55 decibels or more, or when the pure tone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or higher at 2000 Hertz. Here, there is no exceptional hearing loss pattern shown. 38 C.F.R. § 4.86. To the extent that the Veteran contends that his hearing loss is more severe, the Board finds that, while competent to report symptoms such as difficulty in hearing the radio or television, he is not competent to report that his hearing acuity is of sufficient severity as 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. 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. However, 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 in excess of the 10 percent evaluation awarded herein are not met. Lendenmann v. Principi, 3 Vet. App. 345 (1992). Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues, unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Resolving reasonable doubt in the Veteran’s favor, a 10 percent rating, but no higher, for the service-connected bilateral hearing loss is warranted for the entire appeal period. To this extent, the appeal is granted. THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Trowers, 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.