Citation Nr: 21006471 Decision Date: 02/04/21 Archive Date: 02/04/21 DOCKET NO. 15-03 557 DATE: February 4, 2021 ORDER Entitlement to an initial compensable rating prior to October 3, 2017, and to a rating greater than 10 percent thereafter for bilateral hearing loss is denied. Entitlement to service connection for non-allergic vasomotor rhinitis, claimed as sinusitis, is dismissed. FINDINGS OF FACT 1. Prior to October 3, 2017, the Veteran’s bilateral hearing loss has been manifested by hearing acuity of no worse than Level I for the right ear and no worse than Level II for the left ear. 2. From October 3, 2017, the Veteran’s bilateral hearing loss has been manifested by hearing acuity of no worse than Level IV in the right ear and no worse than Level V in the left ear. 3. In a statement received in April 2019, prior to the promulgation of a decision in the appeal, the Board received notification from the appellant that a withdrawal of the issue of service connection for non-allergic vasomotor rhinitis is requested. CONCLUSION OF LAW 1. The criteria for an initial compensable rating prior to October 3, 2017 and to a rating greater than 10 percent thereafter 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. 2. The criteria for withdrawal of the appeal for service connection for non-allergic vasomotor rhinitis by the appellant have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from September 1968 to September 1988. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) that granted service connection and a noncompensable rating for bilateral hearing loss. In an October 2017 rating decision, the RO granted a 10 percent rating effective October 3, 2017. The Board remanded this claim in April 2019 to obtain private treatment records. In a November 2019 correspondence, the Veteran indicated that the identified clinicians had not provided treatment for his hearing loss. Thus, there has been substantial compliance with the remand directives. Entitlement to an initial compensable rating prior to October 3, 2017 and to a rating greater than 10 percent thereafter for bilateral hearing loss is denied. The Veteran seeks higher initial evaluations for his bilateral hearing loss. Of note, the Veteran, by his representative, argues that the increase evaluation of 10 percent should be assigned for the entire appeals period as the prior examination does not accurately represent the date the hearing loss became more disabling. See March 2019 appellant brief. The Veteran is currently in receipt of a noncompensable rating prior to October 3, 2017, and a rating of 10 percent thereafter. The Board notes that the question for consideration is the propriety of the initial evaluation assigned, and consideration of the medical evidence since the effective date of the award of service connection is required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Here, the effective date of service connection was July 16, 2013. See August 2014 rating decision (noting clear and unmistakable error as to the effective date of service connection for bilateral hearing loss and correcting the effective date). The assignment of staged ratings is also appropriate. See Hart v. Mansfield, 21 Vet. App. 505 (2007). 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 from bilateral 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). At a May 2014 VA audiological examination, the Veteran reported diminished hearing which caused occasional irritation to his relationships and loss of work opportunities. The Veteran’s Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 15 40 50 50 39 94% LEFT 15 65 60 60 50 88% Applying the results to Table VI, the findings yield a numeric designation of Level I in the right ear and Level II in the left ear. Entering the resulting numeric designation of Level I for the right ear and Level II for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a noncompensable disability rating under Diagnostic Code 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. The Veteran was afforded another examination in October 2017. The Veteran also reported that it was difficult to hear the television and his wife is irritated when he cannot hear her. On authorized audiological evaluation pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 35 45 65 60 51 80% LEFT 40 70 70 65 61 68% Applying the results to Table VI, the findings yield a numeric designation of Level IV in the right ear and Level V in the left ear. Entering the resulting bilateral numeric designation of Level IV for the right ear and Level V for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a 10 percent disability rating under Diagnostic Code 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. Based on the evidence above, higher inial ratings are not warranted. The Board expressly acknowledges its consideration of the lay evidence of record when adjudicating this claim, including hearing difficulty causing limitation of job opportunities, difficulty communicating, and difficulty with hearing television programming. The Veteran is competent to report difficulty with his hearing; however, disability ratings for hearing loss are derived from a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). The Veteran has not specifically asserted that he is unemployable due to his hearing loss disability. Rather, he indicated that while working he applied for other jobs and was unsuccessful. The record otherwise indicates that he maintained employment with an air conditioning company for almost 20 years before retiring in 2010; he has not indicated the retirement was related to his service-connected hearing loss disability. The rating criteria contemplate speech reception thresholds and ability to hear spoken words on Maryland CNC testing. The functional impact that the Veteran describes, is contemplated by the rating criteria. Doucette v. Shulkin, 28 Vet. App. 366 (2017). The Veteran’s main complaint is reduced hearing acuity and clarity, which is what is contemplated in the rating assigned. See Rossy v. Shulkin, 29 Vet. App. 142, 145 (2017). Moreover, the Board has considered the argument advanced by the Veteran’s representative that the 10 percent rating should have been assigned earlier. Generally, the effective date of an increase rating should not be assigned mechanically. Instead, the evidence should be examined to determine the date the increase in disability first became factually ascertainable. See Swain v. McDonald, 27 Vet. App. 219, 224 (2015). After reviewing all of the evidence of record, the Board finds that the increase in severity of the Veteran’s bilateral hearing loss was not factually ascertainable prior to the October 2017 VA examination. While the record included complaints relating to the Veteran’s disability, the record does not include evidence that the Veteran’s disability had worsened prior to the most recent VA examination. At no time did the Veteran indicate an onset of worsening symptoms during the appeals period. Accordingly, the preponderance of the most probative evidence is against the claim of entitlement to higher evaluations for the Veteran’s bilateral hearing loss. As such, the doctrine of reasonable doubt is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to service connection for non-allergic vasomotor rhinitis, claimed as sinusitis, is dismissed 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. § 19.55. Withdrawal may be made by the appellant or by his or her authorized representative. Id. In the present case, the appellant has withdrawn the issue of entitlement to service connection for non-allergic vasomotor rhinitis, claimed as sinusitis, in writing. The appeal as to this issue is dismissed and, 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 as it relates to that issue, and it is dismissed. D. JOHNSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Vuong, 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.