Citation Nr: 20000030 Decision Date: 01/02/20 Archive Date: 01/02/20 DOCKET NO. 16-51 402 DATE: January 2, 2020 ORDER Entitlement to a compensable evaluation for bilateral hearing loss is denied. FINDING OF FACT Bilateral hearing loss is manifested throughout the appeal period by no more than Level I hearing loss bilaterally. CONCLUSION OF LAW The criteria for a compensable evaluation for bilateral hearing loss have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.7, 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Army from November 1997 to March 1998. The Board previously remanded this case for additional development in December 2018. The matter has now returned to the Board for appellate review. Entitlement to a compensable evaluation for bilateral hearing loss Disability evaluations are determined by comparing a Veteran’s present symptomatology with criteria set forth in the 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. 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. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran’s entire history is reviewed when making disability evaluations. See generally, 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Evidence to be considered in the appeal of an initial assignment of a disability rating was not limited to that reflecting the then current severity of the disorder. Fenderson v. West, 12 Vet. App. 119 (1999). In Fenderson, the Court also discussed the concept of the “staging” of ratings, finding that in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. Fenderson at 126-28; see also Hart v. Mansfield, 21 Vet. App. 505 (2007) (applying the concept of staged ratings to instances in which entitlement to compensation has previously been established). The Veteran’s service-connected bilateral hearing loss has been evaluated with a noncompensable rating throughout the appeal period under the provisions of Diagnostic Code 6100. See 38 C.F.R. § 4.85 (2018). In evaluating hearing loss under the schedular criteria, disability ratings are derived by a mechanical application of the ratings schedule to the numeric designations assigned after audiometric evaluations are rendered. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). The ratings schedule provides a table for ratings purposes (Table VI) to determine a Roman numeral designation (I through XI) for hearing impairment. Table VII is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment in both ears. 38 C.F.R. § 4.85. When the pure tone threshold at each of the four specified frequencies (1,000, 2,000, 3,000, and 4,000 Hertz) is 55 decibels or more, Table VI or Table VIa is to be used, whichever results in the higher numeral. 38 C.F.R. § 4.86 (a). Additionally, when the pure tone threshold is 30 decibels or less at 1,000 Hertz, and 70 decibels or more at 2,000 Hertz, Table VI or Table VIa is to be used, whichever results in the higher numeral. Thereafter, that numeral will be elevated to the next higher numeral. 38 C.F.R. § 4.86 (b). Turning to the record, the Veteran was afforded a VA examination in August 2013 to determine the severity of his bilateral hearing loss. At that time, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT NA 15 20 30 40 LEFT NA 35 30 25 40 Speech audiometry revealed speech recognition ability of 94 percent in the right ear and of 94 in the left ear. The average decibel loss in the right ear is 26 and the average decibel loss in the left ear is 32. Entering the average pure tone thresholds and speech recognition abilities above into Table VI reveals the highest numeric designation of hearing impairment is I for both the right and left ear. See 38 C.F.R. § 4.86 (a). Entering the category designations for each ear into Table VII results in a noncompensable evaluation under Diagnostic Code 6100. The examiner also reported that Veteran’s bilateral hearing loss impacts the ordinary conditions of daily life. Specifically, the Veteran reported that he has difficulty hearing anything on his left side and he has difficulty hearing his coworkers and customers in his usual occupation. Pursuant to the Board’s Remand of December 2018, the Veteran was afforded another VA audiological evaluation in March 2019, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT NA 10 5 10 5 LEFT NA 10 10 10 15 Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 94 in the left ear. The average decibel loss in the right ear is 8 and the average decibel loss in the left ear is 11. Entering the average pure tone thresholds and speech recognition abilities above into Table VI reveals the highest numeric designation of hearing impairment is I for both the right and left ear. See 38 C.F.R. § 4.86 (a). Entering the category designations for each ear into Table VII results in a noncompensable evaluation under Diagnostic Code 6100. The examiner reported that the Veteran’s hearing loss does not impact the ordinary conditions of daily life. Further, the examiner explained that the Veteran’s hearing is within normal limits bilaterally. The Board acknowledges the Veteran’s contentions that his service-connected bilateral hearing loss warrants a compensable evaluation. However, in determining the actual degree of disability, an objective examination is more probative of the degree of the Veteran’s impairment. Furthermore, the opinions and observations of the Veteran alone cannot meet the burden imposed by the rating criteria under 38 C.F.R. § 4.85 with respect to determining the severity of his service-connected hearing loss. See Moray v. Brown, 2 Vet. App. 211, 214 (1993); see also Davidson v. Shinseki, 581 F.3d 1313 (2009). The Board finds that there is no audiological evidence of record to support a compensable evaluation for the Veteran’s bilateral hearing loss. The preponderance of the evidence is against his claim for a higher evaluation. Consequently, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107 (b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (U.S. 1990). MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Scanlan, 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.