Citation Nr: 20002279 Decision Date: 01/10/20 Archive Date: 01/09/20 DOCKET NO. 18-21 251 DATE: January 10, 2020 ORDER Prior to October 7, 2019, entitlement to an initial compensable rating for bilateral hearing loss is denied. Effective October 7, 2019, an initial disability rating of 10 percent, but no higher, for bilateral hearing loss is granted, subject to regulations governing the payment of monetary awards. FINDINGS OF FACT 1. Prior to October 7, 2019, the Veteran’s hearing loss was manifested by no worse than Level III hearing in each ear. 2. From October 7, 2019, the Veteran’s hearing loss has been manifested by no worse than Level IV hearing in each ear. CONCLUSIONS OF LAW 1. Prior to October 7, 2019, the criteria for an initial compensable rating for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.7, 4.10, 4.85, 4.86, Diagnostic Code 6100 (2019).  2. From October 7, 2019, the criteria for a rating of 10 percent, but no higher, for bilateral hearing loss have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.7, 4.10, 4.85, 4.86, Diagnostic Code 6100 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army from March 1969 to March 1971. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a September 2017 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In November 2019, the Veteran testified at a videoconference hearing before the undersigned; a transcript of that hearing is of record. Entitlement to a compensable rating for bilateral hearing loss The Veteran contends that his bilateral hearing loss, currently rated at 0 percent, warrants a compensable rating. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The Rating Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole to function under the ordinary conditions of daily life, including employment. See 38 C.F.R. § 4.10. Evidence to be considered in the appeal of an assignment of a disability rating is not limited to that reflecting the then current severity of the disorder. Fenderson v. West, 12 Vet. App. 119 (1999). In cases where a disability evaluation has been disagreed with, it is possible for a veteran to receive a staged rating; that is, be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. Fenderson, 12 Vet. App. at 126-28; see also Hart v. Mansfield, 21 Vet. App. 505 (2007). 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). 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. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Separate ratings may be assigned for separate periods of time based on the facts found, a practice known as “staged” ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). 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 the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt is resolved in the Veteran’s favor. 38 C.F.R. § 4.3. 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 pure tone audiometry test. Examinations will be conducted without the use of hearing aids. 38 C.F.R. § 4.85(a). The horizontal lines in Table VI (in 38 C.F.R. § 4.85) represent nine categories of the percentage of discrimination based on the controlled speech discrimination test. The vertical columns in Table VI represent nine 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 better hearing and the vertical column appropriate to the numeric designation level for the ear having the poorer 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). Additionally, an alternate rating table (Table VIA) may be used for “exceptional patterns of hearing impairment,” including cases where the pure tone thresholds at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) are 55 decibels or more, or where the pure tone thresholds are 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz. 38 C.F.R. § 4.86. Turning to the evidence, the Veteran underwent a VA examination for hearing loss in September 2017. Pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 25 20 85 80 53 LEFT 25 35 85 85 58 Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 92 percent in the left ear. Application of the September 2017 pure tone threshold average levels and speech recognition ability (percentage of discrimination) using Table VI results in Roman Numeral I for the right ear and Roman Numeral II for the left ear. Level I and Level II correspond to a 0 percent evaluation pursuant to Table VII. The examination did not show exceptional patterns of hearing that would qualify for a numerical designation using Table VIA. See 38 C.F.R. § 4.86. On January 2018 VA examination, the pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 50 60 95 100 76 LEFT 50 50 90 90 70 Speech audiometry revealed speech recognition ability of 88 percent in the right ear and of 88 percent in the left ear. Application of the January 2018 pure tone threshold average levels and speech recognition ability (percentage of discrimination) using Table VI results in Roman Numeral III for the right ear and Roman Numeral III for the left ear. Level III and Level III correspond to a 0 percent evaluation pursuant to Table VII. The examination did not show exceptional patterns of hearing that would qualify for a numerical designation using Table VIA. See 38 C.F.R. § 4.86.   The Veteran underwent a private audiological exam on October 7, 2019. Pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 30 35 85 85 59 LEFT 30 50 90 105 69 Speech audiometry revealed speech recognition ability of 76 percent in the right ear and of 76 percent in the left ear. The examination record states that the Maryland CNC test was used to measure speech recognition, as required by 38 C.F.R. § 4.85(a). Application of the October 2019 pure tone threshold average levels and speech recognition ability (percentage of discrimination) using Table VI results in Roman Numeral IV for the right ear and Roman Numeral IV for the left ear. Level IV and Level IV correspond to a 10 percent evaluation pursuant to Table VII. In his November 2019 Board hearing, the Veteran testified that his hearing had worsened since his last VA examination (in January 2018). Although the Veteran testified that his hearing loss had worsened since his last VA examination, it is not necessary to remand for a new examination because the October 2019 private audio evaluation provides the Board with adequate information regarding the current severity of his bilateral hearing loss. As the evidence of record prior to October 7, 2019 showed audiometric test results warranting a noncompensable rating under the pertinent criteria, a preponderance of the evidence is against a finding that a compensable rating is warranted prior to that date. Based on the audiological examination of October 7, 2019, a disability rating of 10 percent is warranted for bilateral hearing loss effective that date. A preponderance of the evidence of record is against a finding that a disability rating in excess of 10 percent for bilateral hearing loss is warranted. The Board does not discount the difficulties the Veteran has with his auditory acuity. However, the Board must predicate its determination on the basis of the results of the audiology studies of record. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). In summary, a compensable rating prior to October 7, 2019 is denied and a 10 percent, but no higher, rating from October 7, 2019 is granted. M. SORISIO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Dean 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.