Citation Nr: 20008301 Decision Date: 01/31/20 Archive Date: 01/31/20 DOCKET NO. 17-32 055 DATE: January 31, 2020 ORDER Entitlement to a compensable rating for bilateral hearing loss is denied. FINDING OF FACT The Veteran has Level III hearing loss in his left ear and Level II hearing loss in his right ear. CONCLUSION OF LAW The criteria for a compensable rating for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service from December 1966 to August 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2017 rating decision of an Agency of Original Jurisdiction (AOJ) of the Department of Veterans Affairs (VA). Issue: Entitlement to a compensable evaluation for bilateral hearing loss Increased Ratings Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where entitlement to compensation has already been established and an increase in the disability is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, where the question for consideration is the propriety of the initial disability rating assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of a "staged rating" is required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Merits The Veteran's bilateral hearing loss is currently assigned a noncompensable evaluation under Diagnostic Code 6100. 38 C.F.R. §§ 4.85, 4.86. Impaired hearing will be considered a disability only after threshold requirements are met. See 38 C.F.R. § 3.385. Once a disability is established, levels of hearing loss are determined by considering the puretone threshold average and speech discrimination percentage scores, resulting in a Roman numeral designation for hearing loss. 38 C.F.R. § 4.85(b), Table VI. Disability ratings are assigned by combining the level of hearing loss in each ear. 38 C.F.R. § 4.85(e), Table VII. See Lendenmann v. Principi, 3 Vet. App. 345 (1992) (assignment of disability ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered). Table VI, "Numeric Designation of Hearing Impairment Based on Puretone Threshold Average and Speech Discrimination," is used to determine a Roman numeral designation (I through XI) for hearing impairment in each ear based on consideration of speech discrimination as well as puretone threshold averages, unless the examiner certifies that use of the speech discrimination test is not appropriate. In that case, table VIa, "Numeric Designation of Hearing Impairment Based Only on Puretone Threshold Average," is used. Table VII, "Percentage Evaluation for Hearing Impairment," is then used to determine the percentage evaluation by combining the Roman numeral of each ear. 38 C.F.R. §§ 3.383, 3.385, 4.85(b). The Veteran underwent a VA audiology examination in February 2017. The results, with puretone thresholds in Hertz, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 30 50 50 65 LEFT 15 15 50 55 70 For the frequencies 1000 – 4000 Hertz, the average puretone threshold was 49 Hertz in the right ear and 48 Hertz in the left ear. Speech audiometry revealed speech recognition ability of 84 percent in the right ear and 80 percent in the left ear. Applying the results of this examination to Table VI of the VA regulations yields a Roman numeral value of II in the right ear and a Roman numeral value of III in the right ear. Applying these values to Table VII, the Veteran's bilateral hearing loss warrants a noncompensable evaluation. 38 C.F.R. § 4.85, 4.86. In Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007), the United States Court of Appeals for Veterans Claims held that in addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in his or her final report. Here, the VA examiner found the Veteran "misinterprets" what his family tells him. As the Veteran's hearing loss, when calculated using Table VII, does not warrant a compensable disability evaluation, his claim is denied. The preponderance of the evidence is against the claim, so the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 54-56. The Veteran's hearing loss has not met the requirements for a higher rating at any time since the effective date of his award, so the Board may not stage his rating. Fenderson, 12 Vet. App. at 125-26. (Continued on the next page)   As a final note, the Board wishes to inform the Veteran that he received the benefit that he claimed in July 2016 – service connection for bilateral hearing loss. That is, VA has acknowledged that military service caused the Veteran's hearing loss. To the extent that the Veteran believes this is not the case, as evidenced by his Notice of Disagreement and his VA Form 9, the Board assures him that he does not need to worry. That said, VA has also determined, and the Board has confirmed, that the severity of the hearing loss, by virtue of regulation, is not compensable. This distinction (service connection vs. severity of disability) can confuse veterans, so the Board wishes to highlight this critical difference for the Veteran's understanding. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Sopko, 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.