Citation Nr: 21076173 Decision Date: 12/22/21 Archive Date: 12/22/21 DOCKET NO. 18-51 631 DATE: December 22, 2021 ORDER Entitlement to an initial disability rating greater than 10 percent for bilateral hearing loss is denied. FINDING OF FACT Audiometric examination corresponded to no greater than Level III hearing loss in the right ear and Level V hearing loss in the left ear. CONCLUSION OF LAW The criteria for entitlement to an initial disability rating greater than 10 percent for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.385, 4.85. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1968 to December 1969. He appeals a July 2018 rating decision granting entitlement to service connection for bilateral hearing loss with a 10 percent initial rating. Per his request, the Veteran was afforded the opportunity to testify via a Board hearing in October 2021. He did not attend the hearing nor file a written motion within 15 days requesting a new hearing. Accordingly, the Board will proceed with adjudication of the claim. Increased Ratings Disability ratings are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The Veteran's entire history is reviewed when making disability evaluations. See generally, Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 4.1. Where the question for consideration is 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). Where entitlement to compensation already has 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). Further, "[w]here there is a question as to which of two evaluations shall be applied, the higher evaluation 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. Evaluations of defective hearing range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of a controlled Maryland CNC speech discrimination test together with the average hearing threshold level measured by pure tone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hertz). 38 C.F.R. § 4.85, Diagnostic Code 6100. 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. 1. Entitlement to an initial disability rating greater than 10 percent for bilateral hearing loss. The Veteran seeks a higher initial rating for his bilateral hearing loss. After a review of the evidence, the Board finds that an initial rating greater than 10 percent is not warranted. The Veteran underwent a VA examination (with audiometric evaluations) in July 2018 to evaluate the severity of his bilateral hearing loss. At the time, he reported that a special phone receiver is required for civilian employment. The Maryland CNC Word List speech recognition scores and pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 50 55 65 75 61 LEFT 60 55 70 85 68 The speech recognition scores on the Maryland CNC word list were 86 percent for the right ear, and 88 percent for the left ear. An exceptional pattern of hearing loss was shown in the left ear. Applying the test results of the June 2018 VA examination report to Table VI of the Rating Schedule results in a Roman numeric designation of Level III for the right ear and Level III for the left ear. The result corresponds with a noncompensable disability rating for bilateral hearing loss. The Board notes that these tonal results exhibit an exceptional pattern of hearing loss in the left ear and a higher rating under Table VIA has been considered. In this case, under this table, he would exhibit Level V hearing loss in the left ear, which would warrant a 10 percent rating. Therefore, a 10 percent rating is the highest rating available under the rating criteria. The Veteran argues that his hearing loss is more "severe" than is contemplated by a 10 percent rating. He submitted a private audiometric evaluation from August 2018 in support of his claim. The examiner opined that the Veteran has moderate to severe hearing loss. No further details were provided. Unfortunately, speech recognition scores were not provided using the Maryland CNC speech discrimination Test. Hence, the examination is inadequate to rate the Veteran's hearing loss under the rating criteria and is of little probative value. The Board has also considered the Veteran's statements that his hearing loss is worse than the ratings he receives. Martinak v. Nicholson, 21 Vet. App. 447 (2007). As such, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. While the Veteran is competent to report symptoms of hearing loss, because this requires only personal knowledge as it comes to him through his senses, he is not competent to identify a specific level of his disorder according to the appropriate diagnostic code. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). On the other hand, such competent evidence concerning the nature and extent of the Veteran's disorder have been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports) directly address the criteria under which this disability is evaluated. In summation, the Board finds that the audiometric evaluation of record shows that an initial rating greater than 10 percent for bilateral hearing loss is not warranted. 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. B.T. KNOPE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Daniel Ballinger, Associate Counsel