Citation Nr: 21068084 Decision Date: 11/09/21 Archive Date: 11/09/21 DOCKET NO. 16-38 119 DATE: November 9, 2021 ORDER An initial compensable rating prior to March 21, 2016, and in excess of 10 percent on and thereafter, for service-connected bilateral hearing loss is denied. FINDINGS OF FACT 1. Prior to March 21, 2016, the Veteran's bilateral hearing loss was manifested by no worse than a Level VIII hearing loss in his right ear (based on an exceptional hearing loss pattern) and a Level I hearing loss in his left ear. 2. From March 21, 2016, the Veteran's bilateral hearing loss has been manifested by no worse than a Level XI hearing loss in his right ear (based on an exceptional hearing loss pattern) and a Level II hearing loss in his left ear. CONCLUSION OF LAW The criteria for an initial compensable rating prior to March 21, 2016, and in excess of 10 percent on and thereafter, for service-connected bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.85, 4.86, DC 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from June 1972 to June 1976. Disability ratings are determined by applying the criteria set forth in the 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. 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. Reasonable doubt as to the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. A veteran's entire history is to be considered when assigning disability ratings. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Disability ratings for hearing impairment are governed by 38 C.F.R. § 4.85. Generally, hearing impairment is rated using two different types of hearing tests. Id. First, a veteran's puretone audiometric thresholds in each ear are measured in decibels across 4 frequencies (1000, 2000, 3000, and 4000 Hertz) and the average of those scores (rounded to the nearest whole number) is calculated. Id. Second, a veteran's speech discrimination ability (rendered as a percentage) is determined using the Maryland CNC test. Id. Once the average puretone thresholds and speech discrimination scores are determined for each ear, the values of each individual ear are combined using Table VI to assign a Roman numeral I-XI. Id. Once each ear is assigned a Roman numeral, the Roman numerals assigned are combined using Table VII to determine a veteran's disability rating. Id. Where impaired hearing is service-connected in only one ear, in order to determine the percentage evaluation from Table VII, the nonservice-connected ear is assigned a Roman Numeral designation of I. Id. When the puretone threshold at each of the four specified frequencies of 1,000, 2,000, 3,000 and 4,000 Hz is 55 dB or more, an exceptional pattern of hearing impairment exists, and the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral. Each ear is evaluated separately. 38 C.F.R. § 4.86(a). Also, when the puretone threshold is 30 dB or less at 1000 Hz, and 70 dB or more at 2000 Hz, Table VI or Table VIA is to be used, whichever results in the higher numeral. Thereafter, that numeral will be elevated to the next higher Roman numeral. 38 C.F.R. § 4.86(b). Here, the Veteran presented with an exceptional pattern of hearing impairment in his right ear only throughout the appeal period. In a September 2014 rating decision, the Veteran was granted service connection for his bilateral hearing loss at 0 percent disabling, effective March 31, 2014. Then, in a May 2020 rating decision, his bilateral hearing loss rating was increased to 10 percent disabling, effective March 21, 2016. He seeks an initial compensable rating prior to March 21, 2016 for his bilateral hearing loss and an initial rating in excess of 10 percent from March 21, 2016. A July 2014 VA audiological examination provided the following puretone thresholds, in decibels: HERTZ 1000 2000 3000 4000 Average RIGHT 80 85 90 85 85 LEFT 20 25 40 55 35 The average puretone threshold across 1000-4000 Hz in the Veteran's right ear was 85 dB and 35 dB in his left ear. His Maryland CNC speech recognition scores were 60 percent in his right ear and 100 percent in his left ear. An exceptional pattern of hearing loss was present in his right ear. Under both Table VI and Table VIA, these findings indicate a designation of Level VIII hearing loss for his right ear. Under Table VI, these findings indicate a designation of Level I hearing loss for his left ear. Under Table VII, these findings warrant a noncompensable rating (0 percent) for the Veteran's bilateral hearing loss. 38 C.F.R. § 4.85. In March 2016, the Veteran underwent an audiological evaluation by his VA audiologist, which provided the following puretone thresholds, in decibels: HERTZ 1000 2000 3000 4000 Average RIGHT 90 100 95 95 95 LEFT 35 35 45 50 41 The average puretone threshold across 1000-4000 Hz in the Veteran's right ear was 95 dB and 41 dB (rounded down from 41.25) in his left ear. His Maryland CNC speech recognition scores were 30 percent in his right ear and 96 percent in his left ear. An exceptional pattern of hearing loss was present in his right ear. Under Table VI, these findings indicate a designation of Level XI hearing loss for his right ear and a Level I hearing loss for his left ear. Under Table VII, these findings warrant a disability rating of 10 percent for his bilateral hearing loss. 38 C.F.R. § 4.85. An August 2019 VA audiological examination provided the following puretone thresholds, in decibels: HERTZ 1000 2000 3000 4000 Average RIGHT 90 95 95 95 94 LEFT 35 35 45 50 41 The average puretone threshold across 1000-4000 Hz in the Veteran's right ear was 94 dB and 41 dB in his left ear. His Maryland CNC speech recognition scores were 44 percent in his right ear and 90 percent in his left ear. An exceptional pattern of hearing loss was present in his right ear. Under both Table VI and Table VIA, these findings indicate a designation of Level IX hearing loss for his right ear. Under Table VI, these findings indicate a designation of Level II hearing loss for his left ear. Under Table VII, these findings warrant a disability rating of 10 percent for the Veteran's bilateral hearing loss. 38 C.F.R. § 4.85. Throughout the period on appeal, the Veteran has asserted that his bilateral hearing loss has gradually worsened. He has described increased difficulty with having conversations with friends and family, as well as difficulties at work. The Board acknowledges, and has considered, the Veteran's description of the problems caused by his hearing difficulties. Martinak v. Nicholson, 21 Vet. App. 447 (2007). Unfortunately, the audiological examinations of record do not show that his bilateral hearing loss manifested to a compensable degree prior to March 21, 2016. And, based on the findings of both the March 2016 and August 2019 audiological examinations, a rating of 10 percent, at most, is warranted from March 21, 2016. There is no other relevant medical evidence of record that refutes these findings. The Board in no way discounts the difficulties the Veteran experiences as a result of his bilateral hearing loss. However, it must be emphasized that the assignment of disability ratings for hearing impairment is derived by a mechanical application of the rating schedule to the numeric designation assigned after audiometry results are obtained. The Board has no discretion and must make a finding based on application of the rating schedule to the results of the audiological evaluations of record. Lendenmann v. Principi, 3 Vet. App. 345 (1992). The Board is bound by law to apply VA's rating schedule based on the Veteran's audiometry results. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. As the preponderance of the evidence is against (CONTINUED ON NEXT PAGE) this claim, it must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). THERESA M. CATINO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Benson, 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.