Citation Nr: 21003764 Decision Date: 01/22/21 Archive Date: 01/22/21 DOCKET NO. 19-00 739A DATE: January 22, 2021 ORDER Entitlement to an initial compensable disability rating for bilateral hearing loss is denied prior to March 9, 2017. Entitlement to a disability rating exceeding 10 percent for bilateral hearing loss for the period beginning March 9, 2017 to October 24, 2020 is denied. Entitlement to a disability rating exceeding 20 percent for bilateral hearing loss beginning October 24, 2020 is denied. FINDINGS OF FACT 1. Audiometric examinations correspond to no greater than a level I hearing loss in the right ear and a level V hearing loss in the left ear for the period prior to March 9, 2017. 2. Audiometric examinations correspond to no greater than a level II hearing loss in the right ear and a level IV hearing loss in the left ear for the period beginning March 9, 2017 to October 24, 2020. 3. Audiometric examinations correspond to no greater than a level IV hearing loss in the right ear and a level VII hearing loss in the left ear for the period beginning October 24, 2020. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial compensable disability rating for bilateral hearing loss prior to March 9, 2017 have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.383, 4.1, 4.7, 4.85 (Diagnostic Code 6100), 4.86 (2019). 2. The criteria for entitlement to a disability rating exceeding 10 percent for bilateral hearing loss for the period beginning March 9, 2017 to October 24, 2020 have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.383, 4.1, 4.7, 4.85 (Diagnostic Code 6100), 4.86 (2019). 3. The criteria for entitlement to a disability rating exceeding 20 percent for bilateral hearing loss for the period beginning October 24, 2020 have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.383, 4.1, 4.7, 4.85 (Diagnostic Code 6100), 4.86 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1962 to June 1965. This appeal comes to the Board of Veterans’ Appeals (Board) from August 2016 and April 2017 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded this matter to the Agency of Original Jurisdiction (AOJ) in July 2020 in order to afford the Veteran a current examination of his hearing loss. After the AOJ completed the additional development pursuant to the Board’s remand order, the Veteran and his representative have not raised any issues with the duty to notify or duty to assist in regard to the Veteran’s claim. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). A disability rating is determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule), 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 their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings.” Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Evaluations for defective hearing are based upon organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests, along with the average hearing threshold level as measured by puretone audiometric tests in the frequencies of 1000, 2000, 3000, and 4000 Hertz. 38 C.F.R. § 4.85, Tables VI, VII. To evaluate the degree of disability for service-connected bilateral hearing loss, the rating schedule establishes eleven auditory acuity levels, designated from level I for essentially normal acuity, through level XI for profound deafness. Table VI is used to determine the Roman numeric designation, based on test results consisting of puretone thresholds and Maryland CNC test speech discrimination scores. The numeric designations are then applied to Table VII to determine the appropriate rating for hearing impairment. See id. Where there is an exceptional pattern of hearing impairment, a rating based on puretone thresholds alone may be assigned (Table VIA). This alternative method for rating hearing loss disability may be applied if the puretone thresholds at 1000, 2000, 3000, and 4000 Hertz are all at 55 decibels or higher. 38 C.F.R. § 4.86(a). It may also be applied if the puretone threshold at 1000 Hertz is 30 or less and at 2000 Hertz is 70 or more. 38 C.F.R. § 4.86(b). In second case, the Roman numeral will then be elevated to the next higher Roman numeral. See id. When an exceptional pattern applies, the method producing the highest Roman numeral should be used. See id. Each ear is to be evaluated separately under this part of the regulations. 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 (1992). The Veteran was afforded a VA examination of his hearing loss in accordance with the standards outlined in 38 C.F.R. § 4.85 in August 2016. Audiological examination puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 40 35 35 50 55 LEFT 45 40 45 65 80 The average of the puretone thresholds findings at 1000, 2000, 3000, and 4000 Hertz was 43.75 decibels in the right ear and 57.5 decibels in the left ear. The speech recognition scores were 96 percent in the right ear and 72 percent in the left ear. Applying the test results to Table VI of the Rating Schedule results in a Roman numeric designation of level I for the right ear and level V for the left ear. 38 C.F.R. § 4.85, Table VI. Applying the Roman numeric designations of I and V to Table VII, the result is a noncompensable rating for the Veteran’s bilateral hearing loss. 38 C.F.R. § 4.85, Table VII, Diagnostic Code 6100. The Veteran was afforded another VA examination of his hearing loss in accordance with the standards outlined in 38 C.F.R. § 4.85 in March 2017. Audiological examination puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 45 40 40 55 55 LEFT 45 40 45 70 80 The average of the puretone thresholds findings at 1000, 2000, 3000, and 4000 Hertz was 47.5 decibels in the right ear and 58.75 decibels in the left ear. The speech recognition scores were 88 percent in the right ear and 80 percent in the left ear. Applying the test results to Table VI of the Rating Schedule results in a Roman numeric designation of level II for the right ear and level IV for the left ear. 38 C.F.R. § 4.85, Table VI. Applying the Roman numeric designations of II and IV to Table VII, the result is a noncompensable rating for the Veteran’s bilateral hearing loss. 38 C.F.R. § 4.85, Table VII, Diagnostic Code 6100. Nevertheless, the RO assigned the Veteran a higher disability rating of 10 percent for this period, which the Board will not disturb. The Veteran was last afforded a VA examination of his hearing loss in accordance with the standards outlined in 38 C.F.R. § 4.85 in October 2020. Audiological examination puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 50 55 50 65 60 LEFT 50 55 55 80 90 The average of the puretone thresholds findings at 1000, 2000, 3000, and 4000 Hertz was 57.5 decibels in the right ear and 70 decibels in the left ear. The speech recognition scores were 80 percent in the right ear and 60 percent in the left ear. Applying the test results to Table VI of the Rating Schedule results in a Roman numeric designation of level IV for the right ear and level VII for the left ear. 38 C.F.R. § 4.85, Table VI. Applying the Roman numeric designations of IV and VII to Table VII, the result is a 20 percent rating for the Veteran’s bilateral hearing loss. 38 C.F.R. § 4.85, Table VII, Diagnostic Code 6100. In light of the examinations above, the Veteran’s hearing loss is staged based on a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345 (1992). The Board finds there are no other audiometric test results of record which comply with the requirements of 38 C.F.R. § 4.85 for rating purposes that indicate the Veteran’s hearing was worse than assessed by the VA examiners during the relevant periods at issue. Neither the Veteran nor his representative identified any additional evidence in support of higher ratings based on audiometric evaluations. Accordingly, as the evidence of record does not support a finding that the Veteran’s hearing loss was more severe than currently rated during each period at issue, the Veteran’s claim for higher disability ratings for his bilateral hearing loss must be denied. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). C. TRUEBA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Michael Duffy, 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.