Citation Nr: 21003559 Decision Date: 01/21/21 Archive Date: 01/21/21 DOCKET NO. 16-16 035 DATE: January 21, 2021 ORDER Entitlement to an initial compensable evaluation for bilateral hearing loss is denied. FINDING OF FACT Throughout the period on appeal, the Veteran’s bilateral hearing loss is manifested by no worse than Level IV hearing loss in the right ear and Level II hearing loss in the left ear. CONCLUSION OF LAW The criteria for a compensable rating for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85, Diagnostic Code 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty with the United States Air Force from May 1974 to May 1978. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a March 2013 rating decision by the Regional Office (RO) of the United States Department of Veterans Affairs (VA). The Veteran testified at a March 2019 hearing at the RO held before the undersigned Veterans Law Judge (VLJ) via videoconference. A transcript of the hearing is associated with the electronic claims file. This matter was previously before the Board in August 2019, at which time the Board remanded the issue of entitlement to an increased evaluation for hearing loss for additional development. A VA hearing loss examination was completed in July 2020, and the matter is again before the Board. Stegall v. West, 11 Vet. App. 268, 271 (1998). Duty to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). The duty to notify and assist was satisfied by notices included in the application form submitted by the Veteran in his June 2014 claim. The RO associated the Veteran’s service, VA, and private outpatient treatment records with the claims file. All released or submitted private treatment records have been associated with the claims file. No other relevant records have been identified and are outstanding. Appropriate and necessary examinations were afforded the Veteran, and are adequate for evaluation, as they include needed findings to permit application of the rating schedule and identification of current disability. VA has satisfied its duty to assist with the procurement of relevant records. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). Neither the Veteran nor his representative have raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Increased Rating Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 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 military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1 (2018); Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). In this case, the Board finds that based on the evidence, staged increased ratings are warranted. If the evidence for and against a claim is in equipoise, the claim will be granted. 38 C.F.R. § 4.3. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. 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 evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Veteran contends he is entitled to an initial compensable rating for his service-connected bilateral hearing loss, stating that he has difficulty hearing the television and conversation, particularly against background noise. Evaluations of defective hearing range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of a controlled speech discrimination test (Maryland CNC) together with the average hearing threshold level measured by puretone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hertz). To evaluate the degree of disability from service-connected defective hearing, the rating schedule establishes eleven auditory hearing acuity levels designated from Level I, for essentially normal hearing acuity, through Level XI, for profound deafness. 38 C.F.R. §§ 4.85, Tables VI, VIa and VII, Diagnostic Code 6100. Disability ratings for hearing loss are derived from a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). Hearing tests will be conducted without hearing aids, and the results of above-described testing are charted on Table VI and Table VII. See 38 C.F.R. § 4.85. Additionally, under 38 C.F.R. § 4.85(c), Table VIa will be used when the examiner certifies that use of speech discrimination is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc., or when indicated under the provisions of § 4.86. 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. Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007); 38 C.F.R. § 4.85. In February 2015, the Veteran was afforded a VA audiological examination. Upon testing, the pure tone thresholds, in decibels, were as follows: Hertz CNC 1000 2000 3000 4000 Avg RIGHT 25 30 40 35 32.50 70 LEFT 15 25 30 25 23.75 88 Applying the above results to Table VI in 38 C.F.R. § 4.85 yields a finding of Level IV hearing loss in the right ear and Level II hearing loss in the left ear. Here, intersection of the two levels results in a noncompensable rating under Table VII. During the March 2019 Board hearing, the Veteran reported that he believed the February 2015 audiological examination was not a true representation of his impairment; that he had been tested on a “good day.” During the hearing, the Veteran further reported difficulty hearing when spoken to, needing to turn the TV and radio up loudly in order to hear them, difficulty hearing his cellphone, in crowds, and hearing music at special church events. Accordingly, the Veteran was afforded a new VA audiological examination in July 2020. Upon testing, the pure tone thresholds, in decibels, were as follows: Hertz CNC 1000 2000 3000 4000 Avg RIGHT 25 30 40 35 32.50 80 LEFT 20 25 30 40 28.75 88 Applying the above results to Table VI in 38 C.F.R. § 4.85 yields a finding of Level III hearing loss in the right ear and Level II hearing loss in the left ear. Here, intersection of the two levels results in a noncompensable rating under Table VII. The VA examiner also noted that the Veteran’s hearing loss impacts the ordinary conditions of daily life, including his ability to work, based on the Veteran’s report that it is “hard to hear.” However, when a claimant’s hearing loss results in an inability to hear or understand speech or to hear other sounds in various contexts, those effects are contemplated by the schedular rating criteria. Doucette v. Shulkin, 28 Vet. App. 366 (2017). Therefore, the Veteran’s symptomatology reflects the criteria for a noncompensable disability evaluation for bilateral hearing loss throughout the appellate period. 38 C.F.R. §§ 4.3, 4.7. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S.P. Faris 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.