Citation Nr: 20022501 Decision Date: 04/01/20 Archive Date: 04/01/20 DOCKET NO. 16-03 279 DATE: April 1, 2020 ORDER Entitlement to a compensable rating for bilateral hearing loss prior to July 25, 2015, and in excess of 20 percent thereafter, is denied. FINDINGS OF FACT 1. For the period prior to July 25, 2015, the Veteran’s bilateral hearing loss was rated as Level I for the right ear and Level I for the left ear. 2. On July 25, 2015, the Veteran’s bilateral hearing loss was rated as Level IV for the right ear and Level VI for the left ear. CONCLUSION OF LAW The criteria for a compensable rating for bilateral hearing loss for the period prior to July 25, 2015, and in excess of 20 percent for the period thereafter, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.85, Diagnostic Code (DC) 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from June 1966 to February 1970. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office. The March 2013 rating decision granted service connection for bilateral hearing loss and assigned a noncompensable rating, effective December 29, 2011. In April 2014, the Veteran filed a Notice of Disagreement (NOD), seeking, inter alia, a higher initial rating. While the claim was pending on appeal, the Veteran’s disability was assigned a rating of 20 percent, effective July 25, 2015. As this increase does not represent a total grant of benefits sought on appeal, the claim for a higher initial rating remains before the Board. See AB v. Brown, 6 Vet. App. 25 (1993). The Board notes that the Veteran requested a Board hearing via videoconference at a local VA office in his January 2016 VA Form 9. However, in a September 2019 VA Form 21-4138, the Veteran requested that his hearing be cancelled. Accordingly, the Veteran’s hearing request is deemed withdrawn. 38 C.F.R. § 20.704. Entitlement to a compensable rating for bilateral hearing loss prior to July 25, 2015, and in excess of 20 percent thereafter, is denied. Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 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, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran’s disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). Where the Veteran timely appeals the rating initially assigned for the service-connected disability, VA must consider whether the Veteran is entitled to “staged” ratings to compensate him for times since filing his claim when his disability may have been more severe than at other times during the course of his appeal. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). If two ratings are potentially applicable, 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. In view of the number of atypical instances, it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. 38 C.F.R. § 4.21. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent with the facts shown in every case. Any reasonable doubt regarding the degree of disability is resolved in favor of the Veteran. 38 C.F.R. § 3.102, 4.3. 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 conducted. Lendenmann v. Principi, 3 Vet. App. 345 (1992). The disability rating of a hearing loss disorder is determined by applying the criteria set forth at 38 C.F.R. § 4.85. Ratings for hearing loss range from 0 to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests together with the average pure tone hearing threshold level, as measured by pure tone audiometric tests in the frequencies 1000, 2000, 3000, and 4000 Hertz, divided by four. This average is used in all cases to determine the Roman numeral designation for hearing impairment from Table VI or VIa. 38 C.F.R. § 4.85(a), (d). Table VI, Numeric Designation of Hearing Impairment Based on Pure Tone Threshold Average and Speech Discrimination, is used to determine a Roman numeral designation (I through XI) for hearing impairment based on a combination of the percent of speech discrimination (horizontal rows) and the pure tone threshold average (vertical columns). The Roman numeral designation is located at the point where the percentage of speech discrimination and pure tone threshold average intersect. 38 C.F.R. § 4.85(b). Table VII, Percentage Evaluations for Hearing Impairment, is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment of each ear. The horizontal rows represent the ear having the better hearing, while the vertical columns represent the ear having the poorer hearing. The percentage evaluation is located at the point where the row and column intersect. 38 C.F.R. § 4.85(e). In addition, 38 C.F.R. § 4.86 applies to exceptional patterns of hearing impairment. Under its provisions, when the pure tone threshold at each of the four specified frequencies of 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. Each ear will be evaluated separately. 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. That numeral will then be elevated to the next higher numeral. 38 C.F.R. § 4.86. The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds persuasive or unpersuasive, and proving reasons for rejecting any evidence favorable to the claimant. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not afforded each piece of evidence contained in the record as every item of evidence does not have the same probative value. Id. at 57. The Board in no way discounts the difficulties that the Veteran experiences due to his hearing loss. However, the Board must base its determination on the results of the audiometric studies of record. Lindemann v. Principi, 3 Vet. App. 345, 349 (1992).   Factual Background. In December 2012, the Veteran underwent a VA audiological examination, in which the examiner noted average puretone thresholds of 42.5 decibels for the right ear and 50 decibels for the left ear. The examiner also noted speech recognition ability of 100 percent bilaterally. See December 2012 VA Hearing Loss and Tinnitus Disability Benefits Questionnaire (DBQ). In July 2015, the Veteran underwent a VA audiological examination, in which the examiner noted average puretone thresholds of 50 decibels for the right ear and 55 decibels for the left ear. The examiner also noted speech recognition ability of 76 percent for the right ear and 60 percent for the left ear. See July 2015 VA Hearing Loss and Tinnitus DBQ. Analysis. Upon review of the Veteran’s entire history, the Board concludes that the Veteran’s bilateral hearing loss warrants staged ratings as follows: a noncompensable rating from December 29, 2011, to July 24, 2015, and a 20 percent rating beginning July 25, 2015. In the December 2012 audiological examination, puretone thresholds, in decibels, were recorded as follows: HERTZ 1000 2000 3000 4000 RIGHT 5 20 65 80 LEFT 5 40 80 75 This indicates average puretone thresholds of 42.5 decibels for the right ear and 50 decibels for the left ear. Speech audiometry revealed speech recognition ability of 100 percent bilaterally. See December 2012 VA Hearing Loss and Tinnitus DBQ. Application of these puretone threshold average levels and speech recognition ability (percentage of discrimination) using Table VI yields a value of I for the right ear and I for the left ear. Applying these values to Table VII yield a disability rating of 0 percent. However, in the July 2015 audiological examination, puretone thresholds, in decibels, were recorded as follows: HERTZ 1000 2000 3000 4000 RIGHT 25 35 65 75 LEFT 20 40 80 80 This indicates average puretone thresholds of 50 decibels for the right ear and 55 decibels for the left ear. Speech audiometry revealed speech recognition ability of 76 percent for the right ear and 60 percent for the left ear. See July 2015 VA Hearing Loss and Tinnitus DBQ. Application of these puretone threshold average levels and speech recognition ability (percentage of discrimination) using Table VI yields a value of IV for the right ear and VI for the left ear. Applying these values to Table VII yield a disability rating of 20 percent. In sum, the Board finds that staged ratings are appropriate and that the preponderance of the evidence reflects that the Veteran’s bilateral hearing loss warrants the ratings as currently assigned: a noncompensable rating from December 29, 2011, to July 24, 2015, and a 20 percent rating beginning July 25, 2015. As such, the Veteran’s claim is denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, as the preponderance of the evidence is against the claim, that doctrine does not apply. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. T. Martin III, 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.