Citation Nr: 21072967 Decision Date: 12/07/21 Archive Date: 12/07/21 DOCKET NO. 19-00 328 DATE: December 7, 2021 ORDER Entitlement to a compensable initial rating for bilateral hearing loss is denied. FINDING OF FACT During the appeal period, the Veteran's hearing loss manifested by no more than Level II hearing loss in his right ear and Level IV hearing loss in his left ear. CONCLUSION OF LAW The criteria for a compensable initial disability rating for bilateral hearing loss are not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2019); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.85, Diagnostic Code 6100 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1984 to August 1991. He appeals an August 2018 rating decision by the Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ) denying entitlement to an initial compensable disability rating for bilateral hearing loss. A Board of Veterans' Appeals (Board) hearing was held in February 2021. A transcript is of record. Subsequent to the Board hearing testimony, the Board remanded the issue in August 2021 to afford the Veteran an audiological evaluation. The appeal is now back before the Board. Disability ratings are determined by applying a schedule of ratings based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. When considering the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection is required. See Fenderson v. West, 12 Vet. App. 199, 125-26 (1999). 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." See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). The Veteran claims his service-connected bilateral hearing loss is more severe than his initial noncompensable rating under 38 C.F.R. § 4.85, Diagnostic Code 6100. Specifically, the Veteran testified he has a hard time understanding conversations in a crowd and with other competing noise, and noted he turns the volume very loud on the television. See February 2021 Board Hr. Tr. at 3; see also August 2018 and September 2021 VA examination reports. The Veteran stated his hearing loss causes him to not "effectively communicate" and increases "listening effort and fatigue." See September 2021 VA examination report. The Veteran's wife corroborated the Veteran's contention that he will not hear her talking to him and she often has to repeat herself. Id. at 6. The Board finds the Veteran and his wife's statements competent and credible. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned based upon organic impairment of hearing acuity as measured in the frequencies of 1000, 2000, 3000, and 4000 Hertz and controlled speech discrimination tests. See 38 C.F.R. § 4.85, Tables VI, VIA, VII; Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). 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 pure tone 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. Id. However, there are two specific instances when numeric designations should also be considered under Table VIA for exceptional patterns of hearing impairment. 38 C.F.R. § 4.86. First, when the pure tone threshold at each of the four frequencies is 55 decibels or more. Id. Second, when the pure tone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz. Id. In these two instances, 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. 38 C.F.R. § 4.86(a). In the Veteran's case, a rating under 38 C.F.R. § 4.86 is not applicable as no examination report indicates the pure tone threshold at each of the four frequencies is 55 decibels or more and his puretone threshold is not recorded at 30 decibels or less at 1000 Hertz, with 70 decibels or more at 2000 Hertz. Id. The decibel loss and speech discrimination ranges designated for each level of hearing impairment were chosen in relation to clinical findings of the impairment experienced by veterans with certain degrees and types of hearing disability, as per the regulatory history of 38 C.F.R. § 4.85 and § 4.86. Functional impairment due to hearing loss that is compounded by background or environmental noise is a disability picture that is considered in the current schedular rating criteria. Complaints related to actual functional impairment are therefore factored into the criteria as applied. Doucette v. Shulkin, 28 Vet. App. 366 (2017). Accordingly, the Board finds that the Veteran's complaints of hearing difficulty have been considered under the numerical criteria set forth in the rating schedule. The Veteran was afforded his first VA audiological evaluation in August 2018. The pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 40 35 40 55 60 LEFT 40 45 65 70 70 The average of the pure tone thresholds findings at 1000, 2000, 3000, and 4000 Hertz was 48 decibels in the right ear, and 63 decibels in the left ear. The speech recognition scores on the Maryland CNC word list were 84 percent for the right ear and 80 percent for the left ear. Applying the test results of the August 2018 examination to Table VI of the Rating Schedule results in a Roman numeric designation of Level II for the right ear, and IV for the left ear. 38 C.F.R. § 4.85, Table VI. Then, applying the Roman numeric designations to Table VII, the result is a noncompensable rating. The Veteran was afforded a second VA examination in September 2021 where the pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 25 25 25 25 LEFT 10 10 20 30 45 The average of the pure tone thresholds findings at 1000, 2000, 3000, and 4000 Hertz was 25 decibels in the right ear, and 26 decibels in the left ear. The speech recognition scores on the Maryland CNC word list were 100 percent for the right ear and 94 percent for the left ear. Applying the test results of the September 2021 examination to Table VI of the Rating Schedule results in a Roman numeric designation of Level I for both left and right ear. 38 C.F.R. § 4.85, Table VI. Then, applying the Roman numeric designations to Table VII, the result is also a noncompensable rating. The Board acknowledges the Veteran has bilateral sensorineural hearing loss that renders it difficult for the Veteran to hold conversation amidst competing noise, watch television at a normal volume, and hear his wife in another room in the house. However, the August 2019 and September 2021 audiology examinations were conducted by licensed audiologists competent to conduct audiological evaluations for VA purposes, and they did not indicate any problems with the reliability of test results or difficulty in test administration. As such, the Board finds the VA audiological examinations sufficient for VA rating purposes. Accordingly, the Veteran is not entitled to a compensable initial disability rating for his service-connected bilateral hearing loss. See Lendenmann, 3 Vet. App. at 349. DONNIE R. HACHEY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Bona, 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.