Citation Nr: 21076002 Decision Date: 12/22/21 Archive Date: 12/22/21 DOCKET NO. 16-57 060 DATE: December 22, 2021 ORDER Entitlement to an initial compensable disability rating for bilateral hearing loss is denied. FINDING OF FACT The Veteran's hearing loss disability has been manifested by hearing acuity no worse than level III in the right ear and level III in the left ear. CONCLUSION OF LAW The criteria for a compensable disability rating for bilateral hearing loss are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code (DC) 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1966 to February 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Boise, Idaho. The case was remanded by the Board in January 2020 and October 2020 for additional development. This case now returns for further appellate review. Increased Rating The Veteran is seeking a compensable disability rating for his bilateral hearing loss. Disability ratings are determined by comparing a veteran's present symptomatology with the criteria set forth in the VA Schedule for Rating Disabilities, which is based upon average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is considered when assigning disability ratings. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). A review of the recorded history of a disability is necessary to make an accurate rating. 38 C.F.R. §§ 4.2, 4.41. The regulations do not give past medical reports precedence over current findings where such current findings are adequate and relevant to the rating issue. Francisco v. Brown, 7 Vet. App. 55 (1994); Powell v. West, 13 Vet. App. 31 (1999). 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). The Veteran's bilateral hearing loss is currently rated as noncompensably (0 percent) disabling under DC 6100. Under DC 6100 the criteria for evaluating hearing impairment uses puretone threshold averages and speech discrimination scores. Numeric designations are assigned based upon a mechanical use of tables found in 38 C.F.R. § 4.85. Acevedo-Escobar v. West, 12 Vet. App. 9, 10 (1998); Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Audiometric results are matched on Table VI to find the numeric designation. Then, the designations are matched with Table VII to find the percentage evaluation to be assigned for the hearing impairment. To evaluate the degree of disability for service-connected hearing loss, the Rating Schedule establishes 11 auditory acuity levels, designated from level I for essentially normal acuity, through level XI for profound deafness. 38 C.F.R. § 4.85. The provisions of section 4.86 address exceptional patterns of hearing loss which are identified when each of the puretone thresholds at 1000, 2000, 3000, and 4000 hertz (Hz) is 55 decibels or more, or when the puretone threshold is 30 decibels or less at 1000 Hz, and 70 decibels or more at 2000 Hz. 38 C.F.R. § 4.86. Applying the above regulations here, the Board finds that the criteria for a compensable disability rating are not met. A March 2015 VA audiological evaluation shows puretone thresholds in decibels for the Veteran's right ear at 1000, 2000, 3000, and 4000 Hz were: 25, 35, 50, and 55, for an average of 41 and for his left ear, at those same frequencies, were: 25, 35, 50, and 65, for an average of 43. Speech discrimination scores were 80 percent of the right ear and 86 percent for the left ear. Using Table VI, these examination results revealed level III impairment in the right ear and level II impairment in the left ear. Combining these levels according to Table VII results in a noncompensable (0%) evaluation. 38 C.F.R. § 4.85. These audiological results also do not satisfy the criteria for a compensable rating due to an exceptional hearing loss pattern. 38 C.F.R. § 4.86. A February 2020 VA audiological evaluation shows puretone thresholds in decibels for the Veteran's right ear at 1000, 2000, 3000, and 4000 Hz were: 25, 25, 40 and 55, for an average of 36 and for his left ear, at those same frequencies, were: 25, 30, 55, and 65, for an average of 44. Speech discrimination scores were 100 percent for the right ear and 98 percent for the left ear. Using Table VI, these examination results revealed level I impairment in the right ear and level I impairment in the left ear. Combining these levels according to Table VII results in a noncompensable (0%) evaluation. 38 C.F.R. § 4.85. These audiological results also do not satisfy the criteria for a compensable rating due to an exceptional hearing loss pattern. 38 C.F.R. § 4.86. Since then, the Veteran's representative has argued that the 2020 examination was inadequate as the findings indicate a significant improvement in the Veteran's speech discrimination scores and the examiner did not explain the basis for such a significant change. The representative further noted the examiner indicated he was unable to maintain a seal on the audiologic testing of the Veteran's left ear but again did not explain whether failure to do so impacted the hearing examination. See September 2020 Appellate Brief. To address the inadequacies in that VA opinion, the Veteran was scheduled for additional VA examination in May 2021. Puretone thresholds in decibels for the Veteran's right ear at 1000, 2000, 3000, and 4000 Hz were: 25, 30, 45, and 60, for an average of 40 and for his left ear, at those same frequencies, were: 25, 30, 55, and 65, for an average of 44. Speech discrimination scores were 84 percent for the right ear and 80 percent for the left ear. Using Table VI, these examination results revealed level II impairment in the right ear and level III impairment in the left ear. Combining these levels according to Table VII results in a noncompensable (0%) evaluation. 38 C.F.R. § 4.85. These audiological results also do not satisfy the criteria for a compensable rating due to an exceptional hearing loss pattern. 38 C.F.R. § 4.86. In an addendum to that opinion, the audiologist stated that without speculating she was unable to determine the reason for the improvement in speech discrimination scores between the March 2015 and September 2020 examinations as they were completed by two different providers. She also stated that tympanometry is used to assess the function of the eardrum and middle ear, and the ability to obtain/maintain a seal during testing should not impact the examination. VA-LHI Addendum Report May 11, 2021. The remaining evidence of record does not show that the Veteran has sought medical treatment for hearing loss on any regular basis. So, there are no subsequent audiograms or other comprehensive information to show a more severe hearing loss disability than is contemplated by the current 0 percent rating. Consideration is given to the functional effects of the Veteran's bilateral hearing loss. Despite any general quality of life problems, he may experience, hearing loss disability is evaluated on the objective findings demonstrated during audiological examination. Just because his hearing acuity may be less than optimal does not, by itself, establish entitlement to a higher disability rating. In fact, it is clear from the Rating Schedule that higher ratings can be awarded only when loss of hearing has reached a specified measurable level. That level of disability has not been demonstrated in the present case. The assignment of disability 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, supra. For the foregoing reasons, the preponderance of the evidence is against a compensable disability rating and there is no reasonable doubt to be resolved. 38 U.S.C. § 5107(b). Thomas H. O'Shay Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J.R. Bryant 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.