Citation Nr: 21063717 Decision Date: 10/15/21 Archive Date: 10/15/21 DOCKET NO. 17-48 019 DATE: October 15, 2021 ORDER An initial compensable rating for bilateral hearing loss is denied. FINDING OF FACT At no point during the entire appeal period did the Veteran's audiometric findings equate to a compensable level under the rating schedule. CONCLUSION OF LAW The criteria for an initial compensable rating for bilateral hearing loss have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from June 1971 to June 1975. This matter comes before the Board of Veterans Appeals (Board) on appeal from July 2015 and April 2021 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO). Service connection for left ear hearing loss was granted at a noncompensable rate, effective February 27, 2014. Pursuant to an April 2021 Board decision, service connection for right ear hearing loss was granted at a noncompensable rate, effective February 27, 2014. Entitlement to an increased rating for bilateral hearing loss was remanded by the Board in April 2021. Substantial compliance with the remand requests having been accomplished, the Board may proceed to consider the claim. See Stegall v. West, 11 Vet. App. 268 (1998). In November 2020, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the proceeding has been associated with the claims file. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Increased Rating The Veteran appealed the initial noncompensable rating awarded for his service-connected hearing loss. As such, the Board will consider the extent and severity of his hearing loss throughout the entire appeal period stemming from the initial effective date, February 27, 2014. 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; Peyton v. Derwinski, 1 Vet. App. 282 (1991); Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Whether the issue is one of an initial rating or an increased rating, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). 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 U.S.C. § 5107; 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. Ratings of hearing loss range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of speech discrimination tests combined with the average hearing threshold levels as measured by pure tone audiometry tests in the frequencies 1000, 2000, 3000, and 4000 cycles per second. To rate the degree of disability for service-connected hearing loss, the Rating Schedule has established eleven auditory acuity levels, designated from Level I, for essentially normal acuity, through Level XI, for profound deafness. 38 C.F.R. § 4.85(h), Table VI. In order to establish entitlement to a compensable rating for hearing loss, it must be shown that certain minimum levels of the combination of the percentage of speech discrimination loss and average pure tone decibel loss are met. 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 rendered. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). The criteria for rating hearing impairment use controlled speech discrimination tests (Maryland CNC) together with the results of pure tone audiometry tests. These results are then charted on Table VI, Table VIA in exceptional cases as described in 38 C.F.R. § 4.86, and Table VII, as set out in the Rating Schedule. 38 C.F.R. § 4.85. An exceptional pattern of hearing loss occurs when the pure tone threshold at 1000, 2000, 3000, and 4000 Hertz is 55 decibels or more, or when the pure tone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz. 38 C.F.R. § 4.86. Specifically, when the pure tone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz, the Roman numeral designation for hearing impairment is determined from either Table VI or Table VIA, whichever results in the higher numerical. 38 C.F.R. § 4.86(b). That numeral will then be elevated to the next higher Roman numeral, and then each ear will be evaluated separately. Id. In Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007), the United States Court of Appeals for Veterans Claims (Court) held that relevant to VA audiological examinations, 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. Id. Turning to the evidence of record, the Veteran underwent a VA audiological examination in June 2015. He endorsed difficulty hearing speech daily and over microphones in meetings, that his wife heard things he did not, and that he missed things all the time. An audiogram revealed the following puretone thresholds, in decibels: HERTZ 500 1000 2000 3000 4000 RIGHT 25 20 50 65 70 LEFT 30 25 65 70 70 The puretone threshold average was 51 in the right ear and 58 in the left ear. Speech recognition testing using the Maryland CNC Word List yielded speech recognition ability of 88 in the right ear and 86 in the left ear. The examiner indicated that the functional effect of the Veteran's hearing loss was trouble hearing in meetings if speech was at a distance. VA treatment records from September 2017 reflected the Veteran's complaint of bilateral hearing loss. He denied any other associated problems including dizziness, vertigo, otalgia, otorrhea, and tinnitus. An evaluation of the ears demonstrated clear ear canals and intact tympanic membranes bilaterally. New hearing aids were ordered. Subsequent treatment records reflected regular maintenance by VA providers of his hearing aids. At the November 2020 hearing, the Veteran testified that he had to turn up the volume frequently to hear properly and required others to repeat themselves often. He noted that he had previously ordered private hearing aids on his own when his hearing worsened. He was currently followed by VA providers for hearing aid maintenance. Another VA audiological examination was conducted in June 2021. The Veteran endorsed struggling to hear some conversations and tones forcing him to seek hearing aids when communication was compromised. An audiogram revealed the following puretone thresholds, in decibels: HERTZ 500 1000 2000 3000 4000 RIGHT 30 25 40 60 70 LEFT 35 25 70 70 80 The puretone threshold average was 48.75 in the right ear and 61.25 in the left ear. Speech recognition testing using the Maryland CNC Word List yielded speech recognition ability of 98 percent bilaterally. The examiner indicated that the functional effect of the Veteran's hearing loss was struggling to hear conversations and tones. An initial compensable rating for bilateral hearing loss is denied. The Board finds that the Veteran's bilateral hearing loss warrants a noncompensable rating throughout the entire appeal period. The June 2015 VA audiological examination results equated to Level II in the right ear and Level III in the left ear. 38 C.F.R. § 4.85, Table VI. Applying these levels to Table VII, the Veteran's hearing acuity equated to a noncompensable disability rating. 38 C.F.R. § 4.85, Table VII. Additionally, there is no evidence of an exceptional level of hearing loss warranting consideration under 38 C.F.R. § 4.86. The June 2021 audiological examination results equated to Level I in the right ear and Level II in the left ear, resulting in a noncompensable rating under Table VII. However, the left ear demonstrated an exceptional pattern of hearing loss under 38 C.F.R. § 4.86. Considering the left ear hearing acuity under Table VIA, it equated to Level V in the left ear. Applying that level with the right ear at Level I in Table VII, the Veteran's hearing acuity still equated to a noncompensable disability rating. (Continued on the next page) To the extent that the Veteran may believe that his hearing loss is more severe than currently evaluated, the Board observes that, although he is competent to report symptoms such as difficulty understanding speech or hearing clearly with background noise, he is not competent to report that his hearing acuity is of sufficient severity to warrant a particular evaluation under VA's tables for rating hearing loss disabilities because such an opinion requires medical expertise (training in evaluating hearing impairment), which he has not been shown to have. Further, disability ratings for hearing loss are derived by a mechanical application of the rating schedule. Lendenmann v. Principi, 3 Vet. App. at 349. Thus, the Board has no discretion in this matter and must predicate its determination on the basis of the results of the audiological examinations of record. Here, mechanical application of the rating schedule to the audiometric findings establishes entitlement to a noncompensable rating for bilateral hearing loss. Based on the foregoing, an initial compensable rating for bilateral hearing loss is not warranted. The Board determines that the Veteran's disability is fully capable of evaluation under the rating schedule. There is no applicable provision that would warrant a higher rating in this case. SHEREEN M. MARCUS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Rachel E. Jensen, 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.