Citation Nr: 21007157 Decision Date: 02/08/21 Archive Date: 02/08/21 DOCKET NO. 14-41 531 DATE: February 8, 2021 ORDER Entitlement to an initial compensable rating for bilateral hearing loss disability is denied. FINDING OF FACT Throughout the appeal period, the evidence of record shows that the Veteran’s bilateral hearing loss disability was manifested by no more than Level II hearing acuity. CONCLUSION OF LAW The criteria for entitlement to an initial compensable evaluation for service-connected bilateral hearing loss disability have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code (DC) 6100 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1964 to July 1971. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2011 rating decision by the Department of Veterans Affairs (VA). In May 2019, the Board remanded the matter on appeal for additional development. During remand status, the Regional Office (RO) granted service connection for an acquired psychiatric disorder. That issue is no longer on appeal. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (noting that a grant of service connection extinguishes appeals before the Board). Entitlement to an Initial Compensable Evaluation for Service-Connected Bilateral Hearing Loss Disability. Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity caused by the given disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155 (2012); 38 C.F.R. Part 4 (2020). When a question arises as to which of two ratings applies under a particular Code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7 (2020). After careful consideration of the evidence, any reasonable doubt remaining, including degree of disability, is to be resolved in favor of the Veteran. 38 U.S.C. § 5107 (2012); 38 C.F.R. §§ 3.102, 4.3 (2020). When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). In any claim for an increased rating, “staged” ratings may be warranted where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App, 119 (1999). Ratings for hearing loss disability are derived from Table VII of 38 C.F.R. § 4.85 (2019) by a mechanical application of the rating schedule to numeric designations assigned after audiometric evaluations are performed. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). The numeric designations correspond to eleven auditory acuity levels, indicated by Roman numerals, where Level I denotes essentially normal acuity and Level XI denotes profound deafness. The assignment of the appropriate numeric level is based on the results of a controlled speech discrimination test (Maryland CNC test) in combination with the Veteran’s average puretone thresholds. The average threshold is obtained from puretone audiometric tests in the frequencies of 1000, 2000, 3000, and 4000 Hertz. 38 C.F.R. § 4.85 (2020). Rating specialists use either Table VI or VIa of 38 C.F.R. § 4.85 to determine the correct Roman numeral designation. Table VIa is employed when the use of speech discrimination tests is inappropriate due to language difficulties, inconsistent speech discrimination scores, etc., or where there is an exceptional pattern of hearing loss (as defined in 38 C.F.R. § 4.86). One such pattern occurs when the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000) is 55 decibels or more. 38 C.F.R. § 4.86(a) (2020). Another pattern occurs when the puretone threshold at 1000 Hertz is 30 decibels or less and the puretone threshold at 2000 Hertz is 70 decibels or more. 38 C.F.R. § 4.86(b) (2020). During the Veteran’s January 2011 VA audio examination, audiometry revealed that puretone thresholds, in decibels, were: 1000 Hz 2000 Hz 3000 Hz 4000 Hz Right 10 15 60 60 Left 15 25 60 65 The average puretone threshold was 36.25 decibels in the right ear and 41.25 in the left ear. Speech recognition score was 94 percent bilaterally. VA treatment records reflect that he was issued new hearing aids in 2016. In April 2016, it was noted that his hearing was within normal limits from 250-1500 Hz, with a mild sloping to moderately severe sensorineural haring loss, bilaterally. His speech recognition score was 88 percent in the right ear and 84 percent in the left ear. Additional VA audio examination was conducted by VA in January 2020. Puretone thresholds, in decibels, were: 1000 Hz 2000 Hz 3000 Hz 4000 Hz Right 15 55 80 70 Left 5 50 80 75 The average puretone threshold was 55 decibels in the right ear and 53 decibels in the left ear. Speech recognition score was 88 percent bilaterally. Using the audiometry conducted in accordance with regulatory criteria, hearing acuity showed Level I impairment bilaterally upon VA examination in 2011 and Level II when examined in 2020. These levels of hearing acuity meet requirements for noncompensable disability ratings. Additionally, the audiometry results do not reflect any exceptional patterns of hearing impairment that would warrant evaluation using Table VIa. The hearing acuity shown from these audiometry results is equivalent to a noncompensable evaluation under Table VII. The Board has considered the lay statements provided by the Veteran. During the January 2020 VA examination, the Veteran reported that difficulty understanding conversational speech, especially high-pitched voices. Although the Veteran asserts that his hearing loss is more severe than currently rated, his statements alone cannot establish that a disability rating higher than noncompensable is warranted as ratings for hearing loss are based on the mechanical application of results of regulation-mandated audiometry. See Lendenmann, supra. As stated above, rating a hearing loss disability involves the mechanical application of rating criteria to the results of specified audiometric studies. The probative medical evidence does not show the Veteran’s hearing loss disability has reached a compensable disability rating during the appeal period. Fenderson, supra. Considering the results of the VA examinations, entitlement to an initial compensable disability rating for bilateral hearing loss disability is denied. The Veteran has not shown hearing acuity impairment that warrants a compensable evaluation, and thus a compensable evaluation must be denied. E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Hal Smith, 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.