Citation Nr: 21006592 Decision Date: 02/04/21 Archive Date: 02/04/21 DOCKET NO. 15-38 925 DATE: February 4, 2021 ORDER Entitlement to an initial compensable evaluation for bilateral hearing loss is denied. FINDING OF FACT Throughout the period on appeal, the Veteran’s bilateral hearing loss manifested in no higher than Level II hearing in the right ear and Level III hearing in the left ear. CONCLUSION OF LAW The criteria for an initial compensable evaluation for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.1-4.10, 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty with the United States Army from April 1969 to November 1970. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a hearing in September 2017; although a transcript of that hearing is not available due to equipment malfunction, the Veteran declined a new hearing in January 2018. This case was previously before the Board in August 2018 and September 2020, when it was remanded for development. The case has been returned to the Board for further appellate review. In September 2020, the case was remanded to obtain private medical records for 2014 from Better Hearing Clinic. These records were associated with the file in September 2020. Entitlement to an initial compensable evaluation for bilateral hearing loss Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. When there is a question as to which of two ratings apply, VA will assign the higher of the two where the disability picture more nearly approximates the criteria for the next higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Disabilities must be viewed in relation to their entire history. 38 C.F.R. § 4.1. VA is required to interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability. 38 C.F.R. § 4.2. Any reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. VA is also required to evaluate functional impairment on the basis of lack of usefulness and the effects of the disabilities upon the claimant’s ordinary activity. 38 C.F.R. § 4.10; see generally Schafarth v. Derwinski, 1 Vet. App. 589 (1991). Evaluations for service-connected hearing loss range from noncompensable (0 percent) to 100 percent. These evaluations are based on organic impairment of hearing acuity as measured by the results of a controlled speech discrimination test, the Maryland CNC test, together with the average hearing threshold level measured by puretone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hertz). 38 C.F.R. § 4.85. Disability ratings for hearing loss are derived from a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). To evaluate the degree of disability from service-connected defective hearing, the rating schedule establishes eleven 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-VII, Diagnostic Code 6100. Hearing acuity levels are assigned using just the puretone audiometry tests only where the examiner certifies that use of the speech discrimination test is not appropriate due to language difficulties or inconsistent speech discrimination test scores, for instance, or where exceptional patterns of hearing impairment exist. 38 C.F.R. §§ 4.85(c), 4.86. An exceptional pattern of hearing impairment occurs when the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more, or where the puretone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz. 38 C.F.R. § 4.86(a)-(b). In these circumstances, the hearing acuity level will be assigned using either Table VI or Table VIa, whichever yields the higher level. Id. Here, the record contains audiograms performed in July 2013 and January 2014; however, the Board may not consider this evidence, as it from prior to the date of establishment of service connection for hearing loss, which is February 19, 2014. In July 2014, the Veteran was afforded a VA audiological examination, at which the Veteran reported difficulty understanding conversation in restaurants. The audiogram returned the following puretone threshold results, in decibels: HERTZ 1000 2000 3000 4000 Average RIGHT 25 20 40 45 32.5 LEFT 25 55 60 70 52.5 The Maryland CNC test revealed speech recognition ability of 92 percent in the right ear and of 84 percent in the left ear. Applying these results to Table VI yields a finding of level I hearing loss in the right ear and level II hearing loss in the left ear. See 38 C.F.R. § 4.85(d). Where hearing loss is at level I in the better ear and level II in the poorer ear, a noncompensable evaluation is assigned under Table VII. 38 C.F.R. § 4.85(e). In August 2014, the Veteran visited his audiologist to pick up new hearing aids, but no audiogram was performed at this visit. In December 2017, the Veteran was afforded another VA audiological examination, at which the Veteran reported difficulty understanding conversation. The audiogram returned the following puretone threshold results, in decibels: HERTZ 1000 2000 3000 4000 Average RIGHT 25 25 65 70 46.25 LEFT 25 60 70 75 57.5 The Maryland CNC test revealed speech recognition ability of 88 percent in the right ear and of 86 percent in the left ear. Applying these results to Table VI yields a finding of level II hearing loss in the right ear and level III hearing loss in the left ear. See 38 C.F.R. § 4.85(d). Where hearing loss is at level II in the better ear and level III in the poorer ear, a noncompensable evaluation is assigned under Table VII. 38 C.F.R. § 4.85(e). There are no other audiograms in the record during the period on appeal. (Continued on next page)   After review of the record, the Board notes the audiograms do not reflect an exceptional pattern of hearing impairment. As the application of the Veteran’s audiograms throughout the appeal period to Tables VI and VII yields the assignment of a noncompensable evaluation, an increased evaluation is not warranted in this case. M. HYLAND Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Josey, 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.