Citation Nr: 21077518 Decision Date: 12/30/21 Archive Date: 12/30/21 DOCKET NO. 19-04 821 DATE: December 30, 2021 ORDER Entitlement to an initial compensable rating for bilateral hearing loss is denied. REFERRED In his August 2018 notice of disagreement, the Veteran indicated that he desired a 10 percent rating for tinnitus. As entitlement to service connection for tinnitus is a claim reasonably raised by the record but has not been initially adjudicated by the agency of original jurisdiction (AOJ), it is referred to the AOJ, to include informing the Veteran and his representative that a claim for benefits must be submitted on the application form prescribed by the Secretary of VA and providing such forms. See 38 C.F.R. § 3.150(a) (providing for furnishing of appropriate application form upon request for VA benefits); 38 C.F.R. § 20.904(b) (continuing to provide for Board referral of unadjudicated legacy claims). FINDING OF FACT The Veteran demonstrated, at worst, level I hearing acuity in the right ear and level I hearing in the left ear throughout the appeal period. CONCLUSION OF LAW The criteria for an initial compensable rating for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.3, 4.7, 4.85, Diagnostic Code (DC) 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1964 to December 1967. This case comes before the Board of Veterans' Appeals (Board) on appeal from a May 2018 rating decision from the Department of Veterans Affairs Regional Office (RO), which granted service connection for right ear hearing loss and assigned a noncompensable rating, effective January 18, 2018. The RO also denied entitlement to service connection for left ear hearing loss. In August 2018 the Veteran filed a notice of disagreement (NOD) and in December 2018 the RO issued a statement of the case (SOC). In January 2019 the Veteran filed a substantive appeal (via VA Form 9). In January 2020 the Board granted entitlement to service connection for left ear hearing loss. The Board also remanded the Veteran's claim for further evidentiary development, specifically to afford the Veteran a new examination to determine the current severity of his bilateral hearing loss. As will be discussed below, the RO substantially complied with the January 2020 remand instructions by affording the Veteran an adequate audiological examination in January 2020. See Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). Higher Initial Rating Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations 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. The Veteran's entire history is reviewed when making disability evaluations. 38 C.F.R. § 4.1. Where an award of service connection for a disability has been granted and the assignment of an initial evaluation for that disability is disputed, separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Fenderson v. West, 12 Vet. App. 119 (1999). Bilateral hearing loss Hearing loss is evaluated under 38 C.F.R. §§ 4.85, 4.86, DC 6100, Tables VI, VIA, and VII of VA's rating schedule. The Rating Schedule provides a table for rating purposes (Table VI) to determine a Roman numeral designation (I through XI) for hearing impairment, established by a state-licensed audiologist, including a controlled speech discrimination test (Maryland CNC), and based upon a combination of the percent of speech discrimination and the puretone threshold average, which is the sum of the puretone thresholds at 1000, 2000, 3000, and 4000 Hertz divided by four. 38 C.F.R. § 4.85. Table VII is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment of each ear. The horizontal row represents the ear having the poorer hearing and the vertical column represents the ear having the better hearing. Id. There is evidence of three audiometric examinations that occurred during the claim period in this case. At the April 2018 VA audiological examination, pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 40 45 50 50 46 LEFT 45 55 50 60 52 Maryland CNC speech recognition scores were 96 in the right ear and 96 in the left ear. With application of the April 2018 test results to 38 C.F.R. § 4.85, Table VI, the Veteran's right ear hearing loss is assigned a numeric designation of I, and the left ear hearing loss is assigned a numeric designation of I. With application of the April 2018 test results to Table VII, the Veteran's bilateral hearing loss does not warrant a compensable rating. On the August 2018 private audiological examination, pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 40 45 45 50 45 LEFT 45 55 55 55 52.5 Maryland CNC speech recognition scores were 96 in the right ear and 96 in the left ear. With application of the August 2018 private test results to 38 C.F.R. § 4.85, Table VI, the Veteran's right ear hearing loss is assigned a numeric designation of I, and the left ear hearing loss is assigned a numeric designation of I. With application of the August 2018 private test results to Table VII, the Veteran's bilateral hearing loss does not warrant a compensable rating. At the January 2020 VA audiological examination, pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 45 45 45 50 46.25 LEFT 45 55 55 60 53.75 Maryland CNC speech recognition scores were 100 in the right ear and 96 in the left ear. With application of the January 2020 test results to 38 C.F.R. § 4.85, Table VI, the Veteran's right ear hearing loss is assigned a numeric designation of I, and the left ear hearing loss is assigned a numeric designation of I. With application of the January 2020 test results to Table VII, the Veteran's bilateral hearing loss does not warrant a compensable rating. In Martinak v. Nicholson, 21 Vet. App. 447 (2007) the Court of Veterans Appeals (Court) addressed a challenge to VA's audiological testing practices, specifically, whether VA's policy of conducting all audiometry testing of hearing-loss claimants in a sound-controlled room was valid. The Court also addressed the requirements for an adequate VA audiological examination report. The Court upheld VA's policy of conducting audiometry testing in a sound-controlled room. The Court also held that, in addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in his or her final report. The Veteran reported to the January 2020 VA examiner that the functional impact of his hearing loss included having trouble hearing the television and people standing away from him. Therefore, the January 2020 VA examination report complied with Martinak. As the Veteran was provided an adequate VA examination to determine the current severity of his bilateral hearing loss, the RO substantially complied with the January 2020 Board remand instructions. The Veteran contends that his current bilateral hearing loss presented a greater degree of impairment than currently assigned. The Veteran is competent to report the symptoms of his hearing disability and the Board has no legitimate basis to challenge the credibility of his contentions. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006). However, the assigned rating for hearing loss is determined by mechanically applying the rating criteria to certified test results. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Therefore, given the mechanical nature of deriving schedular ratings for hearing loss, the Veteran is not entitled to an initial higher compensable rating for bilateral hearing loss. For the above reasons, the evidence is neither evenly balanced nor approximately so with regard to whether an initial compensable rating for bilateral hearing loss is warranted. Rather, the evidence persuasively weighs against a higher initial rating for hearing loss. The benefit of the doubt doctrine, see 38 U.S.C. § 5107(b), is therefore not for application as to this claim. Lynch v. McDonough, __ F.4th __, No. 2020-2067, 2021 U.S. App. LEXIS 37312 (Fed. Cir. Dec. 17, 2021) (only when the evidence persuasively favors one side or another is the benefit of the doubt doctrine not for application). The Board has considered the Veteran's claim and decided entitlement based on the evidence. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record, with respect to his claim. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board James R. Miller, 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.