Citation Nr: 21009884 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 14-28 052A DATE: February 23, 2021 ORDER Entitlement to an initial compensable rating for bilateral hearing loss (BHL) is denied. FINDING OF FACT Audiometric examination corresponds to no greater than Level II hearing loss in the right ear and Level III hearing loss in the left ear. CONCLUSION OF LAW The criteria for an initial compensable disability rating for BHL have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.85, Diagnostic Code 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1968 to March 1970. The Veteran appealed a November 2013 rating decision by the Agency of Original Jurisdiction (AOJ). A Board of Veterans’ Appeals (Board) hearing was held in June 2019. A transcript is of record. In August 2019 and October 2020, the Board remanded the Veteran’s claims to the AOJ for further action consistent with the Board’s remand directives. The claims are back before the Board for further appellate proceedings. The Board finds there has been substantial compliance with its remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). When, as here, a Veteran seeks an increased evaluation, it will generally be presumed that the maximum benefit allowed by law and regulation is sought, and it follows that such a claim remains in controversy where less than the maximum benefit available is awarded. See AB v. Brown, 6 Vet. App. 35, 38 (1993). Disability ratings are determined by applying a schedule of ratings that 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. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Where, as here, the question to consider is the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection and consideration of the appropriateness of a “staged” rating are required. See Fenderson v. West, 12 Vet. App. 199, 125-26 (1999). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings,” whether it is an initial rating case or not. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). 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. Evaluations for defective hearing are based upon organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests, along with the average hearing threshold level as measured by pure tone audiometric tests in the frequencies of 1000, 2000, 3000, and 4000 Hertz. 38 C.F.R. § 4.85, Tables VI, VIA, VII. To evaluate the degree of disability for service-connected bilateral hearing loss, the rating schedule establishes eleven auditory acuity levels, designated from Level I for essentially normal acuity, through Level XI for profound deafness. Table VI is used to determine the Roman numeric designation, based on test results consisting of pure tone thresholds and Maryland CNC test speech discrimination scores. The numeric designations are then applied to Table VII to determine the appropriate rating for hearing impairment. Id. 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). On the authorized audiological evaluation in November 2013, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 35 35 50 75 80 LEFT 40 40 65 80 85 The average of the pure tone thresholds findings at 1000, 2000, 3000, and 4000 Hertz was 60 decibels in the right ear and 68 decibels in the left ear. The speech recognition scores on the Maryland CNC word list were 96 percent for the right ear, and 88 percent for the left ear. Applying the test results of the November 2013 VA examination report to Table VI of the Rating Schedule results in a Roman numeric designation of Level II in the right ear and Level III in the left ear. 38 C.F.R. § 4.85, Table VI. Applying the Roman numeric designations to Table VII, the result is a noncompensable rating for the Veteran’s service-connected BHL. On the authorized audiological evaluation in January 2020, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 40 30 50 65 70 LEFT 40 30 65 75 80 The average of the pure tone thresholds findings at 1000, 2000, 3000, and 4000 Hertz was 54 decibels in the right ear and 63 decibels in the left ear. The speech recognition scores on the Maryland CNC word list were 88 percent for the right ear, and 90 percent for the left ear. Applying the test results of the January 2020 VA examination report to Table VI of the Rating Schedule results in a Roman numeric designation of Level II in the right ear and Level III in the left ear. 38 C.F.R. § 4.85, Table VI. Applying the Roman numeric designations to Table VII, the result is a noncompensable rating for the Veteran’s service-connected BHL. The Board finds both the November 2013 and January 2020 VA examinations are adequate for rating purposes. Apart from these two VA examinations, there are no other adequate audiometric testing results for the remainder of the appeal period which comply with the requirements of 38 C.F.R. § 4.85 for rating purposes. As noted in the prior Board remand, the November 2017 private audiological examination is inadequate because it does not clearly indicate a speech discrimination test, the Maryland CNC word list was used, or which marking is associated with which ear. The Veteran generally contends his hearing has worsened, he has trouble hearing, he has hearing aids, and that he should be awarded a higher rating. However, based on the adequate audiological assessments of record and mechanical application of the rating criteria, a higher rating is not warranted. Additionally, the hearing loss tables noted by the Veteran in his December 2013 notice of disagreement (NOD) are not authoritative and do not apply to the rating of hearing loss under the appropriate regulations. Accordingly, the evidence of record does not support a compensable disability rating for BHL and the appeal is denied. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Zheng, 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.