Citation Nr: 20022022 Decision Date: 03/30/20 Archive Date: 03/30/20 DOCKET NO. 18-39 618 DATE: March 30, 2020 ORDER Entitlement to a compensable disability rating for bilateral hearing loss is denied. FINDING OF FACT The Veteran’s service-connected bilateral hearing loss has been manifested by no worse than level II hearing acuity in the right ear and level II hearing acuity in the left ear. CONCLUSION OF LAW The criteria for a compensable disability rating for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5103, 5103A; 38 C.F.R. §§ 3.159, 3.321, 4.85, DC 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1958 to February 1961. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In December 2019, the Veteran testified before the Board at a videoconference hearing. Increased Ratings Disability evaluations are determined by the application of VA’s Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher rating 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. 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 (1991). Where the question for consideration is the propriety of the initial evaluation assigned, evaluation of the evidence since the grant of service connection and consideration of the appropriateness of a “staged rating” (assignment of different ratings for distinct periods of time, based on the facts found) is required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). The Veteran’s bilateral hearing loss is currently rated as noncompensably disabling under DC 6100. Relevant laws and regulations stipulate that evaluations of defective hearing range from noncompensable to 100 percent based on the organic impairment of hearing acuity. Hearing impairment is measured by the results of controlled speech discrimination tests together with the average hearing threshold levels (which in turn, are measured by pure tone audiometric tests in the frequencies of 1000, 2000, 3000 and 4000 cycles per second (Hertz)). See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992) (defective hearing is rated on the basis of a mere mechanical application of the rating criteria). The provisions of 38 C.F.R. § 4.85 establish eleven auditory acuity levels from I to XI, so ranging from essentially normal hearing to profound deafness. When there are exceptional patterns of hearing impairment, the schedular criteria stipulate that, when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000 and 4000 Hertz) is 55 decibels or more, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. 38 C.F.R. § 4.86 (a). Each ear is evaluated separately. Additionally, when the pure tone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. 38 C.F.R. § 4.86(b). The numeral will then be elevated to the next higher Roman numeral. Id. Each ear will be evaluated separately. The Veteran underwent a VA examination in April 2018, which revealed right ear auditory thresholds in the frequencies of 1000, 2000, 3000 and 4000 Hertz as 35, 55, 60, and 75, respectively. For the left ear, auditory thresholds in the same frequencies were recorded as 30, 35, 60, and 60. The average pure tone threshold was 56 in the right ear and 46 in the left. Speech recognition ability was 84 percent in the right ear and 88 percent in the left. Applying the results from that examination to Table VI in 38 C.F.R. § 4.85 yields a finding of Level II hearing in the right ear and Level II in the left ear. Where hearing is at Level II in one ear and Level II in the other, a noncompensable rating is assigned under Table VII. The April 2018 audiogram results do not establish the requisite criteria for application of Table VIA. See 38 C.F.R. §§ 4.85, 4.86. Most recently, the Veteran underwent an audiology evaluation during VA treatment in November 2019, which revealed right ear auditory thresholds in the frequencies of 1000, 2000, 3000 and 4000 Hertz as 35, 60, 60, and 70, respectively. For the left ear, auditory thresholds in the same frequencies were recorded as 35, 45, 60, and 65. The average pure tone threshold was 56 in the right ear and 51 in the left. Speech recognition ability was 88 percent bilaterally. Applying the results from that examination to Table VI in 38 C.F.R. § 4.85 yields a finding of Level II hearing in the right ear and Level II in the left ear. Where hearing is at Level II in one ear and Level II in the other, a noncompensable rating is assigned under Table VII. The November 2019 audiogram results do not establish the requisite criteria for application of Table VIA. See 38 C.F.R. §§ 4.85, 4.86. After a review of the record, the Board finds that the evidence for the entire appeals period reveals a hearing impairment consistent with the currently assigned noncompensable evaluation. That evaluation is based on the Veteran’s average puretone thresholds and speech recognition scores from the audiograms of record, and appropriately reflect his hearing loss under the provisions of 38 C.F.R. § 4.85. The evaluation of hearing loss is predicated upon the results of the audiology studies of record. See Lendenmann, 3 Vet. App. at 349. In the absence of any additional evidence showing a more severe hearing loss disability, the Veteran’s hearing loss has not approximated the criteria for a compensable evaluation. Accordingly, a compensable disability rating is denied. The above determination is based upon consideration of applicable rating provisions. The April 2018 VA examiner noted the Veteran’s report of difficulty hearing in most listening situations and the November 2019 VA audiologist noted the Veteran’s use of hearing aids and his reported difficulty hearing the television. The rating criteria for hearing loss contemplate the functional effects of decreased hearing and difficulty understanding speech in everyday environments as these are the effects that VA’s audiometric tests are designed to measure. Doucette v. Shulkin, 28 Vet. App. 377 (2017). The Veteran’s hearing loss does not produce any other functional effects not contemplated by the rating schedule. See id. For the foregoing reasons, a compensable disability rating for hearing loss is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, because the preponderance of the evidence is against the claim, this doctrine is inapplicable. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). JAMES L. MARCH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Griffith 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.