Citation Nr: 21071308 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 19-36 399 DATE: November 30, 2021 ORDER Entitlement to a compensable evaluation for bilateral hearing loss is denied. FINDING OF FACT The Veteran's hearing loss manifested by hearing acuity of no worse than Level II in the left ear and Level II in the right ear. CONCLUSION OF LAW The criteria for a compensable rating for bilateral hearing loss were not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.6, 4.7, 4.85, Diagnostic Code (DC) 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service with the Air Force from December 1963 to December 1967. This matter is before the Board of Veterans' Appeals (the Board) on appeal from a July 2018 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In December 2020, the Veteran testified in a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is in the evidence of record. In July 2021, the Board granted the Veteran's claim for service connection for right ear hearing loss. His increased rating claim for his service-connected left ear hearing loss was remanded as inextricably intertwined with the rating of the now service-connected right ear hearing loss. An August 2021 rating decision evaluated his service-connected right ear hearing loss as noncompensable effective May 22, 2018. The October 2021 supplemental statement of the case (SSOC) recharacterized the issue on appeal to entitlement to a compensable disability rating for service-connected bilateral hearing loss. Applicable Law and Regulations Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in the veteran's favor. 38 C.F.R. §§ 3.102, 4.3. If there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Veteran is given the benefit of the doubt. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible. See Fenderson v. West, 12 Vet. App. 119 (1999). 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). 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 pure tone audiometric tests in the frequencies of 1000, 2000, 3000, and 4000 Hertz (Hz). 38 C.F.R. § 4.85, Tables VI, VII; DC 6100. To evaluate the degree of disability for service-connected bilateral hearing loss, the rating schedule establishes 11 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 pure tone thresholds and Maryland CNC speech discrimination scores. The numeric designations are then applied to Table VII to determine the appropriate rating for hearing impairment. Where there is an exceptional pattern of hearing impairment, a rating based on pure tone thresholds alone may be assigned (Table VIA). This alternative method for rating hearing loss disability may be applied if the pure tone thresholds at 1000, 2000, 3000, and 4000 Hz are all at 55 decibels or higher, or if the pure tone threshold at 1000 Hz is 30 or less and at 2000 Hz is 70 or more. 38 C.F.R. § 4.86. Each ear is to be evaluated separately under this part of the regulations. Factual Background and Analysis The Veteran contends he is entitled to a compensable evaluation for his hearing loss. In July 2018, the Veteran was granted service connection for left ear hearing loss and the condition was evaluated as noncompensable effective May 22, 2018. In July 2021, the Veteran was granted service connection for right ear hearing loss. An August 2021 rating decision evaluated the right ear condition as noncompensable effective May 22, 2018. In a July 2018 VA examination, the Veteran was diagnosed with bilateral sensorineural hearing loss. The audiometric results were as follows: HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 40 35 55 55 46 98% LEFT 30 30 40 50 38 98% Applying these findings to Table VI, the right ear pure tone threshold average of 46dB combined with his speech discrimination of 98 percent results in a Roman numeral designation of I. The left pure tone threshold average of 38dB combined with his speech discrimination of 98 percent results in a Roman numeral designation of I. Application of these findings to Table VII corresponds to a noncompensable rating under 38 C.F.R. § 4.85, DC 6100. In an October 2021 VA examination, the Veteran's audiometric results were as follows: HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 40 50 70 75 58.75 94% LEFT 40 50 65 80 58.75 94% Examination found normal acoustic immittance bilaterally. The Veteran reported difficulty understanding other people and the presence of any noise made it even more difficult to hear. Overall, the examiner opined his hearing loss impacted his ordinary life including his ability to work. Applying these findings to Table VI, the right ear pure tone threshold average of 59dB combined with his speech discrimination of 94 percent results in a Roman numeral designation of II. The left pure tone threshold average of 59dB combined with his speech discrimination of 94 percent results in a Roman numeral designation of II. Application of these findings to Table VII corresponds to a noncompensable rating under 38 C.F.R. § 4.85, DC 6100. Although the Veteran has indicated that his hearing was worse than the criteria associated with a noncompensable evaluation, the rating criteria for hearing loss, as addressed above, requires the mechanical application of rating criteria to objectively obtained audiometric testing results. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). The current noncompensable evaluation is reflected by the rating evidence of record and there is no indication that the findings of the July 2018 or October 2021 audiological examinations were inadequate. Therefore, the Veteran's claim for a compensable rating for his bilateral hearing loss is not warranted. MICHAEL LANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K.L. Byers 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.