Citation Nr: 21014522 Decision Date: 03/12/21 Archive Date: 03/12/21 DOCKET NO. 18-21 227 DATE: March 12, 2021 ORDER A schedular rating in excess of 10 percent for bilateral hearing loss is denied. FINDING OF FACT The Veteran has no worse than Level VIII hearing loss in the left ear using Table VIA and Level II hearing loss for the right ear using Table VI for VA purposes. CONCLUSION OF LAW The criteria for a schedular rating in excess of 10 percent for bilateral hearing loss disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.385, 4.7, .85-4.87, Diagnostic Code 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had honorable active duty service from January1952 to January1955. He was awarded the Combat Action Ribbon for his service. This matter comes before the Board of Veterans’ Appeals (Board) from an October 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In May 2020, the Veteran elected for the Board to issue a decision without attending a hearing. Then in September 2020, the Board remanded the Veteran’s claim for development including a new VA examination. In December 2020, the Veteran was afforded a new VA examination. After a Supplemental Statement of the Case (SSOC), the claim is back before the board. The Board finds that the foregoing reflects substantial compliance with the September 2020 remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Thus, the Board will proceed to adjudicate the claim currently on appeal. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record as to the Veteran’s bilateral hearing loss. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). The Veteran asserts that he is entitled to a higher rating for his bilateral hearing loss. He reported he was deaf in his left ear. Disability ratings are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two ratings will be applied, the higher rating will be assigned if the disability picture more closely approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran’s condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991); see also 38 C.F.R. §§ 4.1, 4.2. As such, the Board has considered all the evidence of record. However, the most probative evidence of the degree of impairment consists of records generated in proximity to and since the claim on appeal. Under applicable laws and regulations, the rating assigned for hearing loss is determined by a mechanical application of the rating schedule, which is grounded on numeric designations assigned to audiometric examination results. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Currently, evaluations of hearing impairment ranges from 0 to 100 percent based on organic impairment of hearing acuity. Auditory acuity is gauged by examining the results of controlled speech discrimination tests, using the Maryland CNC, together with the results of pure tone audiometric tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hz). To evaluate the degree of disability, the rating schedule establishes 11 auditory acuity levels ranging from Level I, for essentially normal acuity, through Level XI, for profound deafness. 38 C.F.R. § 4.85 Tables VI and VII, as set forth following 38 C.F.R. § 4.85, are used to calculate the rating to be assigned. 38 C.F.R. § 4.85. Under 38 C.F.R. § 4.86, when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000 and 4000 Hz) is 55 decibels (dB) or more, Table VI or Table VIAa is to be used, whichever results in the higher numeral. 38 C.F.R. § 4.86(a). Additionally, when the pure tone threshold is 30 dB or less at 1000 Hz, and 70 dB or more at 2000 Hz, Table VI or Table VIA is to be used, whichever results in the higher numeral. Thereafter, that numeral will be elevated to the next higher Roman Numeral. 38 C.F.R. § 4.86(b). The Veteran’s bilateral hearing loss is rated at 10 percent. In October 2017, the Veteran underwent a VA audiological examination. The results of audiometric testing showed a pure tone threshold average of 75Hz with a Maryland CNC that could not be tested in the left ear and a pure tone threshold average of 39 Hz with a Maryland CNC of 92 percent in the right ear. In September 2020, the Board remanded the Veteran’s claim for a new VA examination. The new VA examination occurred in December 2020. The Veteran reported that he was totally deaf in his left hear and wore a hearing aid. The results of audiometric testing showed a pure tone threshold average of 78 Hz with a Maryland CNC that could not be tested in the left ear and a pure tone threshold average of 45 Hz with a Maryland CNC of 88 percent in the right ear. Table VIA is applicable for both examinations of the left ear, because the pure tone threshold was 55 decibels or greater at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz). The Veteran’s average decibel loss and speech recognition score at the October 2017 VA audiological examination equates to a Level VII in the left ear using Table VIA and to a Level I in the right ear using Table VI. When these results are combined on Table VII, the results from the October 2017 VA audiological examination result in a noncompensable rating. The Veteran’s average decibel loss and speech recognition score at the December 2020 VA audiological examination equates to a Level VIII in the left ear using Table VIA and to a Level II in the right ear using Table VI. When these results are combined on Table VII, the results from the December 2020 VA audiological examination result in a 10 percent rating. (Continued on the next page)   Alternatively, assuming the Veteran had a 0 percent speech discrimination score in his left ear, which result in a level XI hearing loss using Table VI, when these results are combined on Table VII, the results from both VA audiological examinations result in a 10 percent rating. Accordingly, the criteria for a schedular rating in excess of 10 percent for the Veteran’s bilateral hearing loss have not been met, and the claim is denied. Timothy Berryman Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Associate Counsel, C. Parnell 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.