Citation Nr: 21008035 Decision Date: 02/11/21 Archive Date: 02/11/21 DOCKET NO. 19-19 656 DATE: February 11, 2021 ORDER Entitlement to a compensable evaluation for bilateral hearing loss is denied. FINDING OF FACT Evidence on file reveals no worse than level I hearing acuity on testing during the appeal period as to either ear. CONCLUSION OF LAW The criteria for a compensable evaluation for bilateral hearing loss are not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.655, 4.1, 4.3, 4.7, 4.10, 4.85, 4.86, Diagnostic Code (DC) 6100 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from October 1968 to June 1970. In October 2019, the Board of Veterans’ Appeals (Board) decided the issue addressed in this decision. The Veteran’s death certificate indicates that he died on November [REDACTED], 2019. The Veteran’s spouse (Appellant) appealed. In a September 2020 Joint Motion for Remand (JMFR), Court of Appeals for Veterans Claims (CAVC) remanded the claim noting that the Board erred by failing to address the Veteran’s request for an additional 90 days to submit additional evidence upon the receipt of the claims file. Moreover, the Court noted that the Board erred by failing to consider the Veteran’s argument of entitlement to a total disability rating based on individual unemployability (TDIU) as secondary to his service connected bilateral hearing loss disorder and/or the Veteran’s coronary artery disease (CAD). The Appellants representative submitted a January 2021 informal hearing presentation waiving any VA notice errors and informing the Board that the Veteran does not have any additional evidence to submit. In a February 2021 rating decision, the Board was granted TDIU effective April 24, 2018. This rating decision represents a total grant of the benefit sought on appeal for the TDIU issue. As such, the TDIU issue is no longer before the Board. Increased Ratings Disability evaluations are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7. Reasonable doubt will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. A Veteran’s entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are appropriate when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Evaluations of bilateral defective hearing range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests together with the average hearing threshold level as measured by pure tone audiometry tests in the frequencies 1000, 2000, 3000 and 4000 cycles per second, with 11 auditory acuity levels designated from Level I for essentially normal acuity through Level XI for profound deafness. 38 C.F.R. § 4.85 (2019). In addition to the hearing loss criteria above, when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) are all 55 decibels or more, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa [38 C.F.R. § 4.85], whichever results in the higher numeral. 38 C.F.R. § 4.86 (a) (2019). When the 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. That numeral will then be elevated to the next higher Roman numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86 (b) (2019). Entitlement to a compensable evaluation for bilateral hearing loss. In a March 2017 VA hearing loss examination, 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 30 35 45 45 39 98 LEFT 20 30 45 45 35 100 This equates to auditory acuity numeric designations of Level I in the right ear and Level I in the left ear. Under Table VII of 38 C.F.R. § 4.85, hearing impairment manifested by Level I hearing acuity in the right ear and Level I hearing acuity in the left ear comport with the criteria for a noncompensable evaluation. In a May 2018 VA hearing loss examination, 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 5 25 35 40 26 98 LEFT 10 20 35 40 26 100 This equates to auditory acuity numeric designations of Level I in the right ear and Level I in the left ear. Under Table VII of 38 C.F.R. § 4.85, hearing impairment manifested by Level I hearing acuity in the right ear and Level I hearing acuity in the left ear comport with the criteria for a noncompensable evaluation. Based on the evidence above, a compensable rating for the Veteran’s bilateral hearing loss is not warranted. The Board expressly acknowledges its consideration of the lay evidence of record when adjudicating this claim. The Veteran was 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 rating criteria contemplate speech reception thresholds and ability to hear spoken words on Maryland CNC testing. The functional impact that the Veteran described, is contemplated by the rating criteria. Doucette v. Shulkin, 28 Vet. App. 366 (2017). The Veteran’s main complaint was reduced hearing acuity and clarity, which is what is contemplated in the rating assigned. See Rossy v. Shulkin, 29 Vet. App. 142, 145 (2017). Accordingly, the preponderance of the most probative evidence is against the claim of entitlement to a compensable rating for bilateral hearing loss. In reaching the conclusion above, the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran’s claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Harris, Michael E. 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.