Citation Nr: 21005568 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 17-51 343 DATE: February 2, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) is dismissed. Entitlement to a compensable rating for bilateral hearing loss is denied. FINDINGS OF FACT 1. In written correspondence received by VA on May 26, 2015, prior to promulgation of a decision on the appeal, the Veteran withdrew his appeal as to the issue of entitlement to TDIU. 2. At worst during the pendency of this appeal, the Veteran has level II hearing acuity in each of his ears. CONCLUSIONS OF LAW 1. The criteria for withdrawal of an appeal for entitlement to TDIU have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. 2. The criteria for a compensable rating for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1964 to April 1971 and from September 1981 to March 1998. These matters come to the Board of Veterans’ Appeals on appeal from March 2012 and June 2015 Department of Veterans Affairs (VA) regional office (RO) rating decisions. Withdrawn Appeals In a March 2012 rating decision, entitlement to a TDIU was denied. In September 2012, the Veteran submitted a notice of disagreement with the denial of TDIU, among other issues. In February 2013, a statement of the case (SOC) was issued for the denial of the TDIU and in May 2013, the Veteran submitted a VA Form 9. However, a timely DRO review request had been received and not undertaken by the RO, so a replacement April 2014 SOC was issued. Thereafter, a timely VA form 9 was received in May 2014. In correspondence received by VA on May 26, 2015, prior to the promulgation of a decision on the appeal, the Veteran withdrew his appeal as to entitlement to TDIU. The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed.  38 U.S.C. § 7105.  An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision.  38 C.F.R. § 20.205.  Withdrawal may be made by the appellant or by his or her authorized representative.  Id.   In the present case, the Veteran has withdrawn his appeal regarding entitlement to TDIU, hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal of this matter and it is dismissed without prejudice. Increased Ratings A disability rating is determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, separate ratings may be assigned for separate periods of time based on the facts found. This practice is known as “staged” ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Entitlement to a compensable rating for bilateral hearing loss 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. To evaluate the degree of disability for service-connected hearing loss, the schedule establishes 11 auditory hearing acuity levels designated from Level I for essentially normal hearing acuity through Level XI for profound deafness. 38 C.F.R. § 4.85, Tables VI and VII. An exceptional pattern of hearing impairment occurs when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more. 38 C.F.R. § 4.86 (a). In that situation, 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. Further, when the average pure tone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz, 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, and that numeral will then be elevated to the next higher numeral. 38 C.F.R. § 4.86 (b). The Veteran contends that his service-connected left ear hearing loss warrants a compensable rating. Specifically, he contends that his hearing loss impacts his “ordinary conditions of daily life including the ability to work because he has to constantly ask people to repeat themselves.” Here, during a May 2015 VA audiological evaluation, the Veteran had the following pure tone thresholds, in decibels: Frequency (Hz) 1000 2000 3000 4000 Right Ear 25 30 55 60 Left Ear 30 30 60 65 An examiner noted average decibel loss of 43.75 in the right ear and 46.25 in the left ear and speech discrimination of 94 percent in the right ear and of 94 percent in the left ear. The examiner also noted that the Veteran’s hearing loss impacted his functional impact as he had trouble hearing and understanding normal conversation, along with asking people to repeat themselves. Applying the results to Table VI yields a numeric designation of level I in each ear. Under 38 C.F.R. § 4.85, DC 6100, Table VII, this numeric designation warrants the assignment of 0 percent disability rating. During a June 2018 VA audiological evaluation, the Veteran had the following pure tone thresholds, in decibels: Frequency (Hz) 1000 2000 3000 4000 Right Ear 20 20 50 60 Left Ear 20 30 60 65 An examiner noted average decibel loss of 38 in the right ear and 44 in the left ear and speech discrimination of 86 percent in the right ear and of 88 percent in the left ear. The examiner also noted that the Veteran’s hearing loss impacted his functional impact as he needed to ask people to repeat themselves. See Martinak v. Nicholson, 21 Vet. App. 447 (2007). A comparison of these results with those shown above indeed reflects worsening hearing loss, as alleged. However, even here, at their worst, these results yield a numeric designation of level II in each ear, which warrants the assignment of 0 percent disability rating. Based on the results of the two examinations noted above, even though the Veteran’s hearing has deteriorated to a point where he now needs hearing aids, the Board finds that the criteria for a compensable disability rating for bilateral hearing loss have not been met. The Board has considered the Veteran’s statements regarding the severity of his hearing loss throughout the pendency of this appeal. Specifically, the Veteran has reported that he has a hard time having conversations and that he asks people to repeat themselves. The Veteran is competent to report matters of which he has personal knowledge, such as difficulty hearing. See Layno v. Brown, 6 Vet. App. 465 (1994); 38 C.F.R. § 3.159 (a)(2). However, as noted above, disability evaluations for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned from audiometric evaluations. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). Additionally, the rating schedule contemplates such impairment under the ordinary conditions of daily life. 38 C.F.R. § 4.10; see also Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). Although the Veteran’s statements are credible, the Board is unable to grant the appeal because the specific legal criteria for an increased rating for bilateral hearing loss have not been met. Accordingly, as the preponderance of the evidence is against the claim, the benefit of the doubt doctrine does not apply, and the claim for a compensable rating for bilateral hearing loss must be denied. See 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Finelli, 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.