Citation Nr: 20004516 Decision Date: 01/21/20 Archive Date: 01/21/20 DOCKET NO. 19-27 517 DATE: January 21, 2020 ORDER Entitlement to a rating in excess of 20 percent for bilateral hearing loss is denied. FINDING OF FACT The Veteran’s bilateral hearing loss is no worse than Level VIII in his right ear and Level II in his left ear. CONCLUSION OF LAW The criteria for a rating in excess of 20 percent for bilateral hearing loss are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1952 to May 1955. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a November 2017 rating decision of the Department of Veterans Affairs (VA) Regional Offices (RO). Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 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. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the Veteran’s entire history is reviewed when assigning a disability rating, 38 C.F.R. § 4.1, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 5 (1994). In determining the present level of a disability for any increased rating claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct times in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of “staged ratings” would be necessary irrespective of whether an initial or established rating. See Hart, supra; see also Fenderson v. West, 12 Vet. App. 119 (1999). Presently, the Veteran’s service-connected bilateral hearing loss has been assigned a 20 percent disability evaluation under 38 C.F.R. § 4.85, Diagnostic Code 6100. The Veteran contends that his hearing disability is worse than the currently assigned evaluation. Therefore, he alleges that he is entitled to an increased rating for this disability. Ratings of hearing loss range from 0 percent (noncompensable) to 100 percent based on organic impairment of hearing acuity as measured by the results of speech discrimination tests combined with the average hearing threshold levels as measured by pure tone audiometry tests in the frequencies 1000, 2000, 3000, and 4000 cycles per second. To rate the degree of disability for service-connected hearing loss, the Rating Schedule has established eleven auditory acuity levels, designated from level I, for essentially normal acuity, through level XI, for profound deafness. 38 C.F.R. § 4.85(h), Table VI. In order to establish entitlement to a compensable rating for hearing loss, it must be shown that certain minimum levels of the combination of the percentage of speech discrimination loss and average pure tone decibel loss are met. The assignment of disability ratings for hearing impairment is 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, 349 (1992). The criteria for rating hearing impairment use controlled speech discrimination tests (Maryland CNC) together with the results of pure tone audiometry tests. These results are then charted on Table VI and Table VIA, in exceptional cases as described in 38 C.F.R. § 4.86, and Table VII, as set out in the Rating Schedule. 38 C.F.R. § 4.85. An exceptional pattern of hearing loss occurs when the pure tone threshold at 1000, 2000, 3000, and 4000 Hertz is 55 decibels or more, or when the pure tone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz. 38 C.F.R. § 4.86. On the authorized VA audiological evaluation in February 2017, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 90 80 75 90 90 LEFT 60 60 50 60 70 The testing revealed a right ear puretone threshold average of 83.75 and a left ear puretone threshold average of 60. Speech recognition was 96 percent in the left ear, as measured by the Maryland CNC test; however, a word discrimination score was not provided for the right ear. On the authorized VA audiological evaluation in May 2019, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 65 75 70 75 90 LEFT 50 50 45 50 70 The testing revealed a right ear puretone threshold average of 77.5 and a left ear puretone threshold average of 53.75. Speech recognition was 72 percent and 94 percent in the right ear and left ear, respectively, as measured by the Maryland CNC test. Applying the puretone and speech recognition findings of the February 2017 VA examination to Table VI of Diagnostic Code 6100 reveals Level II left ear hearing loss. Although no speech recognition score was provided for the right ear, utilization of Table VIA is applicable, as the Veteran’s puretone threshold at each of the four specified frequencies for the right ear is 55 decibels or more. Thus, applying the puretone threshold average of the right ear to Table VIA reveals Level VIII right ear hearing loss. The intersection point for these levels under Table VII shows hearing loss that corresponds to a 10 percent disability rating. Applying the puretone and speech recognition findings of the May 2019 VA examination to Table VI of Diagnostic Code 6100 reveals Level VI right ear hearing loss and Level I left ear hearing loss. Applying the puretone threshold average of the right ear to Table VIA reveals Level VII right ear hearing loss. The intersection point for these levels under Table VII shows hearing loss that corresponds to a noncompensable disability rating. The Board has considered the additional VA treatment records in the claims file; however, while they document the Veteran’s ongoing general complaints of hearing difficulty, which has required the use of hearing aids, they do not contain identifiable audiologic results that can be used in the mechanical application of the Rating Schedule to the numeric designations assigned based on audiometric test results; therefore, they are of little probative value in the context of his increased rating claim for his service-connected bilateral hearing loss. Similarly, the Board has considered the lay evidence of record, which is probative insofar as reporting and identifying observable symptoms, such as difficulty hearing. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, to the extent these lay statements assert entitlement to an increased disability rating, they are less probative than the objective evidence of record discussed herein that permit the required mechanical application of the Rating Schedule to numeric designations assigned based upon audiometric test results. See Lendenmann, supra. As the preponderance of the evidence is against the Veteran’s claim, there is no reasonable doubt to be resolved in his favor, and the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102, 4.3; Gilbert, 1 Vet. App. 49. M. H. HAWLEY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Norwood, 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.