Citation Nr: 21006298 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 15-06 022 DATE: February 3, 2021 ORDER Entitlement to an initial compensable disability rating for service-connected bilateral hearing loss is denied. FINDING OF FACT For the entire period on appeal, the preponderance of the competent and probative evidence of record establishes that the Veteran’s service-connected bilateral hearing loss was no worse than a Level I in the right ear, and a Level I in the left ear. CONCLUSION OF LAW The criteria for an initial compensable disability rating for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.85, Diagnostic Code (DC) 6100. Introduction The Veteran served honorably on active duty in the United States Army during the Vietnam Era, from November 1971 to November 1973. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2014 Rating Decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Anchorage, Alaska. The Rating Decision granted the Veteran’s claim of service connection for left ear hearing loss with a non-compensable disability rating effective January 31, 2013, and denied his claim of service connection for right ear hearing loss. When this matter previously came before the Board in September 2018, the Veteran was granted entitlement to service connection for right ear hearing loss, and the issue of entitlement to a compensable disability rating for bilateral hearing loss was remanded for additional development, specifically, to afford the Veteran a VA audiological examination. A January 2019 Rating Decision implemented the Board’s grant of service connection for right ear hearing loss with a non-compensable disability rating effective January 31, 2013, and a June 2020 Supplemental Statement of the Case (SSOC) continued the denial of a compensable rating for bilateral hearing loss. The Board observes that the additional development has been completed, and the recharacterized issue of entitlement to an initial compensable disability rating for bilateral hearing loss returns to the Board for further appellate review. REASONS AND BASES FOR FINDING AND CONCLUSION Increased Ratings Disability ratings are determined by applying a schedule of ratings (Ratings Schedule) that is based on the average impairment of earning capacity. Separate DCs 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. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the Veteran working or seeking work. 38 C.F.R. § 4.2. All reasonable doubt will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. A Veteran may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Thus, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as “staged” ratings. See Fenderson v. West, 12 Vet. App. 119 (1999). Entitlement to an initial compensable disability rating for service-connected bilateral hearing loss is denied. The Veteran seeks entitlement to a compensable initial disability rating for service-connected bilateral hearing loss. To evaluate the degree of disability from defective hearing, the Rating Schedule establishes eleven auditory acuity levels from Level I for essentially normal acuity through Level XI for profound deafness. 38 C.F.R. § 4.85. To evaluate a Veteran’s level of disability, Table VI is used to assign a Roman numeral designation for hearing impairment based on a combination of the percent of speech discrimination and the puretone threshold average. 38 C.F.R. § 4.85(b). Table VII is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment for each ear. 38 C.F.R. § 4.85(e). The rating criteria provide for alternative ratings when an exceptional pattern of hearing is met. Specifically, if the puretone threshold at each of the specified frequencies of 1000, 2000, 3000, and 4000 Hertz is 55 decibels or more, an evaluation can be based either on Table VI or Table VIa, whichever results in a higher evaluation. 38 C.F.R. § 4.86(a). When the puretone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz, the Roman numeral designation for hearing impairment will be chosen from either Table VI or Table VIa, whichever results in the higher numeral, and that numeral will then be elevated to the next higher Roman numeral. 38 C.F.R. § 4.86(b). In the present case, the Veteran has undergone two VA audiological examinations regarding his claim, specifically, in August 2014 and March 2019. During the August 2014 VA examination, the Veteran reportedly stated that he “can’t understand movies. I miss about 50% at meetings; it’s pretty hard to hear words. I really need to get hearing aids … problems in large groups or background noise, ventilation …” Audiometric testing revealed puretone thresholds, in decibels, as follows: 1000 Hz 2000 Hz 3000 Hz 4000 Hz Avg. Hz Right Ear 10 10 55 60 33.75 Left Ear 10 20 60 60 37.50 Speech audiometry revealed speech discrimination ability of 98 percent in the right ear and 100 percent in the left ear. Application of the puretone threshold values to Table VI results in a Level I Roman numeral designation for the right ear and a Level I Roman numeral designation for the left ear. As such, application of a Level I designation and a Level I designation to Table VII results in a non-compensable disability rating. The Board notes the readings reported in this evaluation do not meet the requirements for evaluation as an exceptional pattern of impairment under 38 C.F.R. § 4.86(a) or (b). Also, the Board observes that the VA audiological examination report discussed above describes the effects of the Veteran’s hearing impairments on his daily life. See Martinak v. Nicholson, 21 Vet. App. 447 (2007). Accordingly, the Board finds the VA audiological examiner’s report is entitled to significant probative weight, as it is based upon a thorough examination of the Veteran, consideration of his self-reports, a review of the claims file, and the examiner’s expertise. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). Following the Board’s prior remand, in March 2019 the Veteran underwent another VA audiological examination. The Veteran reportedly stated to the VA examiner that, “his hearing seems to be getting worse with age.” Audiometric testing revealed puretone thresholds, in decibels, as follows: 1000 Hz 2000 Hz 3000 Hz 4000 Hz Avg. Hz Right Ear 15 50 70 70 51.25 Left Ear 20 45 70 70 51.25 Speech audiometry revealed speech discrimination ability of 96 percent in the right ear and 94 percent in the left ear. Application of the puretone threshold values to Table VI results in a Level I Roman numeral designation for the right ear and a Level I Roman numeral designation for the left ear. As such, application of a Level I designation and a Level I designation to Table VII results in a non-compensable disability rating. The Board notes the readings reported in this evaluation do not meet the requirements for evaluation as an exceptional pattern of impairment under 38 C.F.R. § 4.86(a) or (b). Also, the Board observes that the VA audiological examination reports discussed above each describe the effects of the Veteran’s hearing impairments on his daily life. See Martinak, 21 Vet. App. 447. Accordingly, the Board finds the VA audiological examiner’s report is entitled to significant probative weight, as it is based upon thorough examinations of the Veteran, consideration of his self-reports, a review of the claims file, and the examiner’s expertise. See Nieves-Rodriguez, 22 Vet. App. at 301. The Board observes that a private audiological evaluation dated May 2014 is also contained in the Veteran’s claims file. The examination contains the results of speech recognition testing but does not state whether the test was a Maryland CNC speech recognition test. For this reason, the May 2014 private audiological examination is not competent evidence for rating purposes. 38 C.F.R. § 4.85(a). Nevertheless, the Board notes that, assuming arguendo the Maryland CNC was utilized, the combination of reported puretone threshold averages and speech recognition testing would yield a non-compensable rating for the Veteran’s service-connected bilateral hearing loss. Furthermore, the Board has considered the statements offered by the Veteran regarding his hearing loss, including the reported impact of his hearing impairment. The Veteran is competent to report his symptoms and describe the impairment associated with his hearing loss, and his reports are credible. However, none of his statements provide the specific information required for rating purposes and, thus, are assigned limited probative value. As stated above, the assignment of disability ratings for hearing impairments are derived by a mechanical application of the Ratings Schedule to the numeric designations based on the audiological examination results. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). Finally, the Board has also considered whether additional staged ratings are in order. See Fenderson, 12 Vet. App. 119. However, the Board finds that such additional staged ratings are not warranted for any distinct periods of time during the period on appeal. Based upon the foregoing, the Board finds that the preponderance of the competent and probative evidence is against the Veteran’s entitlement to a compensable initial disability rating for service-connected bilateral hearing loss throughout the period on appeal. Since the preponderance of the evidence is against the claim, the provisions of 38 U.S.C. § 5107(b) and 38 C.F.R. § 4.3 regarding reasonable doubt are not applicable. As such, the Veteran’s claim for entitlement to a compensable initial disability rating for service-connected bilateral hearing loss is denied. T. REYNOLDS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Worsham, Attorney Advisor 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.