Citation Nr: 21001980 Decision Date: 01/12/21 Archive Date: 01/12/21 DOCKET NO. 17-52 627 DATE: January 12, 2021 ORDER Entitlement to a compensable disability rating for bilateral hearing loss prior to August 24, 2016, an evaluation in excess of 40 percent prior to October 11, 2019, and in excess of 80 percent, thereafter, is denied. FINDING OF FACT For the period prior to August 24, 2016, the Veteran’s hearing loss more closely approximated by a noncompensable rating, for the period prior to October 11, 2019, the Veteran’s bilateral hearing loss is more closely approximated by a 40 percent disability rating, and for the period thereafter, the Veteran’s hearing loss is more closely approximated by an 80 percent rating. CONCLUSION OF LAW The criteria for establishing entitlement to a compensable disability rating for bilateral hearing loss prior to August 24, 2016, an evaluation in excess of 40 percent prior to October 11, 2019, and in excess of 80 percent, thereafter, have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.1, 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from January 1990 to January 1993. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2016 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO). When this case was last before the Board in October 2020, it was remanded for additional development. Specifically, the RO was instructed provide the Veteran with a supplemental statement of the case (SSOC). The RO provided the Veteran with an appropriate SSOC. As such, the Board finds that the AOJ substantially complied with the directives in the October 2020 remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board notes that in April 2020 the Veteran requested a personal hearing in response to a March 2020 notification letter regarding the proposed reduction of his bilateral hearing loss claim which the RO has yet to address. However, the Veteran’s reduction claim is not before the Board as it has not been properly appealed. However, the Board brings the issue of the Veteran’s unaddressed request for a personal hearing as part of the reduction process to the attention of the RO. Increased Rating—Bilateral Hearing Loss Legal Criteria Disability ratings are determined by the application of VA’s Schedule for Rating Disabilities. 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two ratings 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. The severity of hearing loss is determined by comparing audiometric test results with the specific criteria. 38 C.F.R. § 4.85, Diagnostic Codes 6100 through 6110. Evaluations of defective hearing range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests together with the average hearing threshold level as measured by puretone audiometry tests in the frequencies 1000, 2000, 3000, and 4000 Hertz. The Rating Schedule allows for such audiometric test results to be translated into a numeric designation ranging from Level I to Level XI, in order to evaluate the degree of disability from service-connected defective hearing. The evaluations derived from the Rating Schedule are intended to make proper allowance for improvement by hearing aids. Analysis The Veteran is seeking ratings in excess of those already assigned to his service-connected bilateral hearing loss. VA treatment notes indicate that the Veteran has received treatment for his bilateral hearing loss. However, there are no audiological tests or findings in the contemporary records that differ significantly from the below cited VA examinations. Prior to August 26, 2016 At the outset the Board notes that the Veteran was initially only service connected for right ear hearing loss, until a December 2019 rating decision granted service connection for bilateral hearing loss effective August 26, 2016. In October 2007 the Veteran underwent a VA audiological evaluation, which revealed puretone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 AVG (1000-4000) RIGHT 60 60 70 70 70 68 LEFT 55 60 65 70 65 65 Speech audiometry revealed speech recognition ability of 64 percent in the right ear and 64 percent in the left ear. Applying the October 2007 audiometric results to the Rating Schedule reveals a numeric designation of Level VII for the Veteran’s right ear. As the Veteran’s left ear hearing loss was not service connected, the Rating Schedule provided a numeric designation of Level I for the Veteran’s left ear. See C.F.R. § 4.85, Table VI, Diagnostic Code 6100. Applying these numeric designations to Table VII results in noncompensable ratings from this examination. See 38 C.F.R. § 4.85, Table VII, Diagnostic Code 6100. 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. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Thus, based on the audiometric findings of record, a compensable rating for the Veteran’s hearing loss is not warranted, for the period prior to August 26, 2016, and the Veteran’s claim must be 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 is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. August 16, 2016, to October 10, 2019 The Veteran submitted private treatment records, including a May 2017 private ear conditions examination, which indicated he sought treatment for his hearing loss. However, these records do not contain relevant information for rating purposes. In November 2016 the Veteran underwent a VA audiological evaluation, which revealed puretone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 AVG (1000-4000) RIGHT 60 60 70 70 80 70 LEFT 65 60 65 65 70 65 Speech audiometry revealed speech recognition ability of 52 percent in the right ear and 60 percent in the left ear. Applying the November 2016 audiometric results to the Rating Schedule reveals a numeric designation of Level VIII for the Veteran’s right ear and Level VII for the Veteran’s left ear. See C.F.R. § 4.85, Table VI, Diagnostic Code 6100. Applying these numeric designations to Table VII results in a 40 percent disability rating from this examination. See 38 C.F.R. § 4.85, Table VII, Diagnostic Code 6100. 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. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Thus, based on the audiometric findings of record, a disability rating in excess of 40 percent for bilateral hearing loss is not warranted for this period on appeal, and the Veteran’s claim must be 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 is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. October 11, 2019 to Present The Veteran submitted an August 2020 audiogram, however the audiogram does not indicate that it has the necessary information for rating purposes. Additionally, the puretone threshold values do not seem to differ much, nor are they worse than, the below cited VA examination. In October 2019 the Veteran underwent his most recent a VA audiological evaluation, which revealed puretone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 AVG (1000-4000) RIGHT 60 60 75 80 80 73.75 LEFT 60 65 70 75 75 71.25 Speech audiometry revealed speech recognition ability of 28 percent in the right ear and 36 percent in the left ear. Applying the October 2019 audiometric results to the Rating Schedule reveals a numeric designation of Level XI for the Veteran’s right ear and Level IX for the Veteran’s left ear. See C.F.R. § 4.85, Table VI, Diagnostic Code 6100. Applying these numeric designations to Table VII results in an 80 percent disability rating from this examination. See 38 C.F.R. § 4.85, Table VII, Diagnostic Code 6100. 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. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Thus, based on the audiometric findings of record, a disability rating in excess of 80 percent for bilateral hearing loss is not warranted for this period on appeal, and the Veteran’s claim must be 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 is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. T. REYNOLDS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Gresham 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.