Citation Nr: 21007339 Decision Date: 02/09/21 Archive Date: 02/09/21 DOCKET NO. 15-07 818 DATE: February 9, 2021 ORDER Entitlement to a compensable disability rating for bilateral hearing loss is denied. FINDING OF FACT Audiological evidence demonstrates that, for the period on appeal, the Veteran’s service-connected bilateral ear hearing loss has been manifested, at worst, by Level II hearing acuity in his right ear and Level II hearing acuity in his left ear, with no exceptional hearing loss pattern shown in either ear. CONCLUSION OF LAW The criteria for a compensable disability rating for the service-connected bilateral hearing loss have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.85, 4.86, DC 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from November 1968 to November 1971. This case returns to the Board following development required by a November 2018 Board remand. The examination requested in this prior remand has been completed, and the case returns for final adjudication. The November 2018 remand is incorporated herein by reference. Entitlement to a compensable disability rating for bilateral hearing loss The Veteran is service-connected for bilateral hearing loss with a non-compensable rating. He contends that his hearing loss warrants a compensable rating. Unfortunately, the Board finds that the Veteran’s hearing loss does not warrant a compensable rating under 38 C.F.R. § 4.85, DC 6100. Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Although the disability must be considered in the context of the whole recorded history, including service medical records, the present level of disability is of primary concern in determining the current rating to be assigned. 38 C.F.R. § 4.2; Francisco v. Brown, 7 Vet. App. 55 (1994); Schafrath v. Derwinski, 1 Vet. App. 589 (1991). If the disability has undergone varying and distinct levels of severity throughout the entire time period the increased rating claim has been pending, staged ratings may be assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999); 38 C.F.R. § 4.2. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. Any reasonable doubt remaining is resolved in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. Disability ratings are determined by comparing a Veteran’s present symptoms with criteria set forth in VA’s Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Evaluations for hearing loss range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests in conjunction with the average hearing threshold levels as measured by pure tone audiometry tests in the frequencies 1,000, 2,000, 3,000, and 4,000 cycles per second. 38 C.F.R. § 4.85. “Pure tone threshold average” is the sum of the pure tone thresholds at 1000, 2000, 3000 and 4000 Hertz divided by four. This average is used in all cases (including those in § 4.86) to determine the Roman numeral designation for hearing impairment from Table VI or VIA. 38 C.F.R. § 4.85, DC 6100. To evaluate the degree of disability from the Veteran’s hearing loss; the rating schedule establishes 11 auditory acuity levels, designated from Level I for slightly impaired hearing acuity through Level XI for profound deafness. Schedular disability ratings for hearing impairment are “derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered.” Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). In Martinak v. Nicholson, 21 Vet. App. 447 (2007), the United States Court of Appeals for Veterans’ Claims (Court) held that, in addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in his or her final report. Martinak, 21 Vet. App. at 455. Even if, however, an audiologist’s description of the functional effects of a veteran’s hearing disability was somehow defective, the veteran bears the burden of demonstrating any prejudice caused by a deficiency in the examination. Id. For purposes of determining the appropriate rating for the period on appeal for the Veteran’s service-connected hearing loss, his audiological testing results from various examinations must be evaluated under the appropriate Hearing Impairment Tables provided in 38 C.F.R. § 4.85. The Veteran filed his claim for increased compensation in February 2014, following a November 2013 examination, during which the Veteran was afforded an air conduction study. Pure tone thresholds, in decibels, were recorded as follows: HERTZ 1000 2000 3000 4000 RIGHT 10 30 65 70 LEFT 30 30 80 80 The frequency average was 43.75 decibels in the Veteran’s right ear and 55 decibels in his left ear. Maryland CNC speech discrimination test results were 88 percent in his right ear and 88 percent in his left ear. Both his right ear and left ear impairment for this examination are associated with a Roman numeral II under Table VI in accordance with 38 U.S.C. § 4.85. These Roman numeral designations warrant a noncompensable disability rating under Table VII under 38 U.S.C. § 4.86. On private examination in March 2014, the Veteran was afforded an air conduction study. Pure tone thresholds, in decibels, were recorded as follows: HERTZ 1000 2000 3000 4000 RIGHT 15 35 70 75 LEFT 40 40 90 85 The frequency average was 48.75 decibels in the Veteran’s right ear and 63.75 in his left ear. Maryland CNC speech discrimination test results were 92 percent in his right ear and 96 percent in his left ear. For this examination, the Veteran’s right ear impairment is associated with a Roman numeral I, and left ear impairment is associated with a Roman numeral II under Table VI in accordance with 38 U.S.C. § 4.85. These Roman numeral designations warrant a noncompensable disability rating under Table VII under 38 U.S.C. § 4.86. In December 2014, the Veteran’s hearing was again tested, and, according to VA medical notes, while there was no major shift in pure tone thresholds, his speech recognition scores were 84 percent for the right ear and 88 percent for the left ear. On VA examination in September 2019, the Veteran was afforded an air conduction study. Pure tone thresholds, in decibels, were recorded as follows: HERTZ 1000 2000 3000 4000 RIGHT 20 50 75 75 LEFT 45 50 90 90 The frequency average was 55 decibels in the Veteran’s right ear and 68.75 in his left ear. Maryland CNC speech discrimination test results were 96 percent in his right ear and 94 percent in his left ear. For this examination, the Veteran’s right ear impairment is associated with a Roman numeral I, and left ear impairment is associated with a Roman numeral II under Table VI in accordance with 38 U.S.C. § 4.85. These Roman numeral designations warrant a noncompensable disability rating under Table VII under 38 U.S.C. § 4.86. For the entire appeal period, the Veteran’s hearing loss impairment table Roman numeral designations warrant a noncompensable disability rating under Table VII. Relevant in this regard is the fact that, throughout the entire appeal period, an exceptional hearing loss pattern has not been shown in either ear. 38 C.F.R. §§ 4.85, 4.86. Thus, the Board finds that a compensable rating is not warranted. To the extent that the Veteran contends that his hearing loss is more severe, the Board finds that, while competent to report symptoms such as difficulty in hearing the radio or television, he is not competent to report that his hearing acuity is of sufficient severity as to warrant a higher compensable evaluation under VA’s tables for rating hearing loss disabilities because such an opinion requires medical expertise (training in evaluating hearing impairment), which he has not been shown to have. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Veteran is competent to report difficulty with communication. However, even after considering such contentions as to the effects of the disability on his daily life, the Board finds that the criteria for an evaluation of a compensable rating are not met. Lendenmann v. Principi, 3 Vet. App. 345 (1992). THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M.E. Lee 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.