Citation Nr: 19154131 Decision Date: 07/12/19 Archive Date: 07/12/19 DOCKET NO. 13-10 806 DATE: July 12, 2019 ORDER Entitlement to an initial compensable rating for left ear hearing loss, is denied. FINDING OF FACT The Veteran’s left ear hearing loss was not manifested to a compensable degree. CONCLUSION OF LAW The criteria for an initial compensable rating for left ear hearing loss disability have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.7, 4.85, Diagnostic Code 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1981 to April 1985. The Veteran died in August 2018. The issue of entitlement to an increased disability rating for left ear hearing loss was previously dismissed in a November 2018 Board decision. The Appellant is the Veteran’s widow, and she was subsequently acknowledged as the appropriate substitute. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2012 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. In April 2015 the Board remanded this matter for additional development. The Board finds there was substantial compliance with the April 2015 remand. In that remand, the AOJ was directed to schedule the Veteran for a VA examination. The Veteran was afforded a VA examination in July 2015. Accordingly, the Board finds that the AOJ has substantially complied with the instructions of the prior remand. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (concluding that a remand is not required under Stegall v. West, 11 Vet. App. 268 (1998), where there was substantial compliance with the Board's remand instructions). 1. Entitlement to a higher initial rating for left ear hearing loss evaluated as noncompensable, is denied. 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,” whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran was seeking a compensable disability rating for his service-connected left ear hearing loss, which he asserted was more severe than reflected by his assigned disability rating. As the substitute claimant, the Appellant continues the Veteran’s contentions. 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. 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, or 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. Each ear is to be evaluated separately under this part of the regulations. 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). 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). The Veteran was afforded a VA audiological examination in March 2012. Puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 Left ear 10 5 60 60 55 The average of the Puretone thresholds findings at 1000, 2000, 3000, and 4000 Hertz was 45 for the left ear. Maryland CNC testing revealed speech recognition ability of 78 percent for the left ear. Utilizing Table VI, the result is level III in the left ear, while the right ear is a Level I, which warrants a noncompensable percent rating. 38 C.F.R. § 4.85. 38 C.F.R. § 4.85, Table VII, Diagnostic Code 6100. The Veteran was afforded another VA audiological examination in April 2015. Puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 Left ear 30 25 65 70 60 The average of the Puretone thresholds findings at 1000, 2000, 3000, and 4000 Hertz was 55 for the left ear. Maryland CNC testing revealed speech recognition ability of 72 percent for the left ear. Utilizing Table VI, the result is level V in the left ear, while the right ear is a Level I, which warrants a noncompensable percent rating. 38 C.F.R. § 4.85. 38 C.F.R. § 4.85, Table VII, Diagnostic Code 6100. The Veteran was afforded another VA audiological examination in July 2015. Puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 Left ear 30 35 60 70 60 The average of the Puretone thresholds findings at 1000, 2000, 3000, and 4000 Hertz was 56 for the left ear. Maryland CNC testing revealed speech recognition ability of 86 percent for the left ear. Utilizing Table VI, the result is level II in the left ear, while the right ear is a Level I, which warrants a noncompensable percent rating. 38 C.F.R. § 4.85. 38 C.F.R. § 4.85, Table VII, Diagnostic Code 6100. The lay statements from the Veteran are both competent and credible in regard to reporting worsening hearing acuity and functional effects. However, more probative of the degree of the disability are the results of testing prepared by skilled professionals because the schedular criteria are predicated on audiological findings rather than subjective reports of severity of hearing loss. In essence, lay statements are of limited probative value. As a layperson, the Veteran is competent to report difficulties with his hearing; however, he is not competent to assign particular speech recognition scores or Puretone decibel readings to his current acuity problems. The Board has carefully considered the Veteran’s statements and in no way discounts the Veteran’s asserted difficulties or his assertions that his left ear hearing loss should be rated higher. However, the valid VA examinations of record were conducted in accordance with the requirements for a hearing impairment examination for VA purposes. See 38 C.F.R. § 4.85 (a). Additionally, it must be emphasized that the assignment of disability ratings for hearing impairment is derived by a mechanical application of the rating schedule to the numeric designation assigned after audiometry results are obtained. Hence, the Board has no discretion in this matter and must predicate its determination on the basis of the results of the audiology studies of record. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). In other words, the Board is bound by law to apply VA’s rating schedule based on the audiometry results. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Accordingly, the Board finds that the evidence of record does not support a compensable disability rating for the Veteran’s left ear hearing loss. The evidence preponderates against the claim and the benefit-of-the-doubt standard of proof does not apply. 38 U.S.C. § 5107 (b). L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Department of Veterans Affairs 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.