Citation Nr: 21010443 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 17-24 544 DATE: February 24, 2021 ORDER Entitlement to an initial compensable rating for bilateral hearing loss is denied. FINDING OF FACT For the entire appeal on period, the Veteran has had no worse than Level I hearing in both ears. CONCLUSION OF LAW The criteria for an initial compensable disability rating for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.85, 4.86, DC 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1985 to February 1993. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an August 2016 rating decision. An August 2018 Board decision denied several claims, to include entitlement to a compensable rating for left ear hearing loss and whether new and material evidence had been submitted to reopen the claim for hearing loss of the right ear. It also remanded several other claims for additional development. In December 2019, the Court of Appeals for Veterans Claims (the Court) vacated the August 2018 Board decision in part, and remanded the claims, to include those involving hearing loss, back to the Board. In July 2020, the Board reopened the Veteran’s claim for service connection for right ear hearing loss and remanded the hearing loss claims for a new examination. The decision granted some service connection claims and remanded several other claims. In a September 2020 Board decision, the Board addressed the development requested by the August 2018 Board decision and remanded the claim for service connection for fibromyalgia for additional development. In November 2020, the Board denied service connection for fibromyalgia. Thus, of the claims pending from the August 2018 Board decision, all claims except the hearing loss claim on appeal have been adjudicated and are no longer on appeal. A December 2020 rating decision granted service connection for right ear hearing loss and assigned an initial non-compensable rating. The development requested by the July 2020 Remand has been completed and the claim has returned to the Board. Increased Ratings Entitlement to a compensable rating for bilateral hearing loss. The Veteran contends that he should be awarded a higher initial rating for his service-connected bilateral hearing loss. However, the Veteran has not presented any argument for why he believes so. His claim for a higher rating was remanded by the Court as intertwined with the claim for service connection for his right ear. In that regard, the Board notes that the claim for service connection for hearing loss of the right ear was granted. Ordinarily, such a grant represents would remove it from the Board’s jurisdiction. See Grantham v. Brown, 114 F.3d 1156, 1159 (Fed. Cir. 1997). However, as the rating for one ear impacts the overall rating of both ears, the rating for both ears is on appeal. Disability evaluations are determined by the application of VA’s Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Staged ratings must be considered, which are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct time periods during the appeal. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). See also Fenderson v. West, 12 Vet. App. 119, 126 (1999) (applying this concept to initial ratings). Here, the Board finds that the ratings have been consistent through the period at issue. 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 puretone audiometric tests in the frequencies of 1000, 2000, 3000 and 4000 cycles per second. 38 C.F.R. § 4.85. To evaluate the degree of disability for service-connected bilateral hearing loss, the rating schedule establishes eleven (11) auditory acuity levels, designated from level I for essentially normal acuity, through level XI for profound deafness. Id. Where there is an exceptional pattern of hearing impairment, a rating based on puretone thresholds alone may be assigned. 38 C.F.R. § 4.86. In this regard, regulations provide that where the puretone threshold at each of the four specified frequencies (1,000, 2,000, 3,000, and 4,000 hertz) is 55 decibels or more, or when the puretone 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. Each ear will be evaluated separately. 38 C.F.R. § 4.86. Ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3. It is the Board’s responsibility to determine whether a preponderance of the evidence supports the claim or whether the evidence is in relative equipoise, with the veteran prevailing in either event, or whether there is a preponderance of evidence against the claim, in which case the claim must be denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Analysis The Veteran has attended two VA examinations that address his hearing ability. In August 2016, audiometric testing revealed the following: HERTZ 1000 2000 3000 4000 Average RIGHT 20 10 30 30 23 LEFT 15 15 40 40 28 Speech audiometry revealed speech recognition ability on the Maryland CNC word list of 100 percent both ears. Using Table VI in 38 C.F.R. § 4.85, this results in a numeric designation of I for both ears. Using the numeric designation of I for both ears, this results in a noncompensable rating under Table VII. The most recent examination was in December 2020. Audiometric testing revealed the following: HERTZ 1000 2000 3000 4000 Average RIGHT 30 20 50 35 34 LEFT 30 40 65 45 45 Speech audiometry revealed speech recognition ability on the Maryland CNC word list of 96 percent in both ears. While these results do represent a worsening of hearing acuity, using Table VI in 38 C.F.R. § 4.85, this still results in a numeric designation of I for both ears, and a noncompensable rating under Table VII. Under the rating schedule, hearing acuity must be more severe to qualify for a compensable rating. Based on the above, the Board finds that the claim must be denied. The Board emphasizes that the assignment of disability ratings for hearing impairment is primarily derived from a mechanical formula based on levels of puretone threshold average and speech discrimination. Lendenmann, 3 Vet. App. 345. Using the prescribed tables, the Veteran’s hearing loss is not of a severity that warrants a compensable evaluation. At the various examinations, the Veteran has reported difficulty hearing in noisy environments and group situations, having to ask people to repeat themselves, and struggling to hear conversations clearly. The Veteran’s report of difficulty hearing is acknowledged; however, this is reflective of the type of functional difficulty that would be expected to be caused by his recorded levels of hearing loss. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (Manifestations such as difficulty hearing speech are the types of difficulties contemplated by the schedular criteria for hearing loss.). Accordingly, the examinations of record are afforded great probative value in determining the Veteran’s level of hearing impairment. No other medical record is probative in assessing the Veteran’s hearing ability; the Veteran had VA audio exams in September 2018 and January 2019, but the there is no report that the Maryland CNC test was used for speech recognition. They do not show exceptional patterns of hearing loss such that the CNC score is not necessary. Therefore, they are not sufficient for rating purposes. The most probative medical evidence as to the severity of the Veteran’s bilateral hearing loss are the audiometric findings performed by VA examiners, and those discussed above reveal that the Veteran’s hearing loss does not warrant a compensable rating. In reaching this conclusion, the Board has considered the applicability of the reasonable doubt doctrine; however, since the preponderance of the evidence is against his claim, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Bethany L. Buck Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board I. M. Hitchcock 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.