Citation Nr: 21062776 Decision Date: 10/12/21 Archive Date: 10/12/21 DOCKET NO. 17-45 317 DATE: October 12, 2021 ORDER Entitlement to an initial compensable rating for service-connected hearing loss is denied. FINDING OF FACT The hearing loss disability is manifested by no more than a hearing acuity of Level III for the right ear and a Level I for the left ear. CONCLUSION OF LAW The criteria for an initial compensable evaluation for service-connected hearing loss have not been met. 38 U.S.C. § 1155 (2014); 38 C.F.R. § 4.1, 4.2, 4.7, 4.85, 4.86, Diagnostic Code 6100 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1980 to February 2001. The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claims or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claims, in which case, the claims are denied. The Veteran has not raised any issues with the duty to notify or the duty to assist. 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 a duty to assist argument). Thus, the Board need not discuss any potential issues in this regard. As an initial matter, in reviewing the Veteran's appeal for an increased rating, the Board has not overlooked the holding of the United States Court of Appeals for Veterans Claims (Court) in Rice v. Shinseki, 22 Vet. App. 447 (2009) (holding that claims for higher evaluations also include a claim for individual unemployability when the appellant claims he is unable to work due to a service-connected disability). In this regard, the Board notes that the Veteran was denied entitlement to individual unemployability (TDIU) in the December 2020 rating decision. Subsequently, the Veteran did not submit a notice of disagreement (NOD) with regard to this denial of TDIU and has not indicated since this denial that he is unemployable due to his service-connected disabilities. As such, the Board finds that the Veteran's assertions regarding TDIU have been addressed during the course of this appeal, and the Veteran has not indicated that he wishes VA to address this matter further at this point. The Board finds that Rice is, therefore, not applicable to the current appeal, and the issue of entitlement to TDIU should not be construed as being on appeal. See Rice, 22 Vet. App. 447, citing Comer v. Peake, 552 F.3d 1362 (Fed. Cir. 2009). Disability ratings are determined by evaluating the extent to which a veteran's service-connected disability adversely affects the ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two disability 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. § 4.1. After careful consideration of the evidence, any reasonable doubt remaining will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is reviewed when making a disability determination. See 38 C.F.R. § 4.1. Where the Veteran timely appealed the rating initially assigned for the service-connected disability within one year of the notice of the establishment of service connection for it, 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 (1999). But where service connection has already been established, and increase in the disability rating is at issue, it is the present level of the disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, in such cases, when the factual findings show distinct time periods during which a claimant exhibits symptoms of the disability at issue and such symptoms warrant different evaluations, staged evaluations may also be assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007). In a July 2015 rating decision, the Regional Office (RO) granted service connection for right ear hearing loss and assigned a noncompensable evaluation, effective September 25, 2013. The Veteran properly appealed the evaluation assigned. Throughout the course of this appeal, service connection was eventually granted for left ear hearing loss as well, and the Veteran's service-connected disability is now bilateral hearing loss. As such, the Board has recharacterized the issue on appeal to reflect the Veteran is now service-connected for bilateral hearing loss and the correct question is whether an initial compensable rating should be assigned for that condition. A rating for hearing loss is determined by a mechanical application of the rating schedule to the numeric designations assigned based on audiometric test results. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). Under VA's rating schedule, hearing impairment is evaluated based on audiological testing, including a pure tone audiometry test and the Maryland CNC controlled speech discrimination test. 38 C.F.R. § 4.85. The pure tone threshold average is the average of the pure tone thresholds, in decibels, at 1000, 2000, 3000 and 4000 Hertz, shown on a pure tone audiometry test. See id. To find the appropriate disability rating based on test results, the pure tone threshold average for each ear is considered in combination with the percentage of speech discrimination to establish a hearing impairment level, labeled from I to XI. See id., Table VI. The hearing impairment levels of both ears are then considered together to establish a disability rating for the hearing loss. See id., Table VII. The current rating criteria include an alternate method of rating exceptional patterns of hearing as defined in 38 C.F.R. § 4.86 (puretone threshold of 55 decibels or more at 1000, 2000, 3000, and 4000 Hertz; puretone threshold of 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz). The Veteran was afforded a VA audiological evaluation in June 2015. His pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 15 20 45 60 LEFT 15 20 45 55 The average puretone threshold was 35 for the right ear and 33.75 for the left ear. Speech recognition ability was 80 percent for the right ear and 92 percent for the left ear. This examination report specifically indicated that speech recognition scores were obtained using the Maryland CNC test. According to Table VI of 38 C.F.R. § 4.85, this examination results in the assignment of a hearing acuity of Level III for the right ear and a Level I for the left ear, which equates to 0 percent rating for bilateral hearing loss. The Veteran was afforded a VA audiological evaluation in September 2020. His pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 20 35 65 75 LEFT 25 40 60 65 The average puretone threshold was 48.75 for the right ear and 47.5 for the left ear. Speech recognition ability was 96 percent for the right ear and 98 percent for the left ear. This examination report specifically indicated that speech recognition scores were obtained using the Maryland CNC test. According to Table VI of 38 C.F.R. § 4.85, this examination results in the assignment of a hearing acuity of Level I, bilaterally, which equates to 0 percent rating. While the Board has reviewed VA and private treatment records, to particularly include an October 2016 audiology report from Pro Active Hearing LLC and November 2012, April 2014, and April 2016 audiology test results related to the Veteran's employment, these records do not contain speech recognition scores obtained using a Maryland CNC word list, which is required to evaluate the Veteran's hearing loss under VA criteria. The Board notes the difficulties the Veteran experiences as a result of his disability, but his claim primarily hinges on a mechanical application of specifically defined regulatory standards. The Board is bound by the very precise nature of the laws governing evaluations of hearing loss disability. In summary, upon review of all relevant evidence of record, the Board does not find that the Veteran's hearing loss meets the criteria of a compensable evaluation. Therefore, the Board concludes that the preponderance of the evidence is against the claim for an increased rating for any period of time on appeal. The benefit of the doubt rule enunciated in 38 U.S.C. § 5107 (b) is not for application, as there is not an approximate balance of evidence. Assignment of staged ratings has been considered and is not for application. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 69-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). MICHELLE L. KANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Durham, 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.