Citation Nr: 21015305 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 17-25 124 DATE: March 17, 2021 ORDER Entitlement to an initial compensable rating for bilateral hearing loss is denied. FINDING OF FACT The Veteran’s bilateral hearing loss manifested in no greater than a Level I impairment of the right ear and a Level IV impairment of the left ear under Table VI. CONCLUSION OF LAW The criteria for entitlement to an initial compensable rating for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.85, 4.86, Diagnostic Code (DC) 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1965 to July 1967. He served honorably in the U.S. Navy, including sea service. The Board thanks the Veteran for his service to our country. The Veteran testified before the undersigned at a Board videoconference hearing in February 2020. A transcript of the hearing is of record. The Board previously remanded this case in March 2020 for a new VA examination. The case has now returned to the Board for further appellate review. Entitlement to an initial compensable rating for bilateral hearing loss is denied. The Veteran contends that a compensable rating is warranted for his bilateral hearing loss. The Board finds that an initial compensable rating is not warranted. Disability evaluations are determined by comparing a veteran’s present symptomatology with criteria set forth in VA’s Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § Part 4. 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 nearly approximates the criteria for the higher rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. The veteran’s entire history is reviewed when making disability ratings. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). 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). However, where, as here, the question for consideration is the propriety of the initial disability rating assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of “staged rating” is required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Decisions of the Board shall consider all information and lay and medical evidence of record in a case. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.303(a). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a layperson. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may include statements conveying sound medical principles found in medical treatises and statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Medical opinions must contain clear conclusions with a reasoned medical explanation based on supporting data. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The Board has reviewed all of the evidence in the Veteran’s claims file, with an emphasis on the evidence pertinent to the issue on appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board’s analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. Disability ratings for hearing loss are derived by a mechanical application of the Rating Schedule to the numeric designations assigned after audiometric evaluations are performed. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Hearing loss disability evaluations range from noncompensable to 100 percent based on organic impairment of hearing acuity, as measured by controlled speech discrimination tests in conjunction with the average hearing threshold, as measured by puretone audiometric tests in the frequencies 1,000, 2,000, 3,000 and 4,000 cycles per second. The Rating Schedule establishes 11 auditory acuity levels designated from Level I for essentially normal hearing acuity, through Level XI for profound deafness. Audiometric examinations for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) together with a puretone audiometric test. 38 C.F.R. § 4.85(a). The horizontal lines in Table VI (in 38 C.F.R. § 4.85) represent nine categories of the percentage of discrimination based on the controlled speech discrimination test. The vertical columns in Table VI represent nine categories of decibel loss based on the puretone audiometric test. The numeric designation for impaired hearing (Levels I through XI) is determined for each ear by intersecting the horizontal row appropriate for the percentage of discrimination and the vertical column appropriate to the puretone decibel loss. When the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more, 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(a). The percentage evaluation is found from Table VII (in 38 C.F.R. § 4.85) by intersecting the horizontal row appropriate for the numeric designation for the ear having the better hearing acuity and the appropriate vertical column to the numeric designation level for the ear having the poorer hearing acuity. 38 C.F.R. § 4.85(e). A February 2017 VA examination results in a noncompensable disability rating based on the above schedular data. On the authorized audiological evaluation, puretone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 15 25 50 65 38.75 LEFT 35 40 65 75 53.75 Speech audiometry revealed speech recognition ability of 94 percent in the right ear and 94 percent in the left ear. Applying Table VI to the above values results in a Level I numeric designation for the right ear and a Level I numeric designation for the left ear. Applying the hearing levels from Table VI to Table VII, a 0 percent evaluation is derived. A September 2017 VA examination also results in a noncompensable disability rating based on the above schedular data. On the authorized audiological evaluation, puretone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 25 30 45 65 41.25 LEFT 40 45 55 65 51.25 Speech audiometry revealed speech recognition ability of 100 percent in the right ear and 100 percent in the left ear. Applying Table VI to the above values results in a Level I numeric designation for the right ear and a Level I numeric designation for the left ear. Applying the hearing levels from Table VI to Table VII, a 0 percent evaluation is derived. Finally, an August 2020 VA examination results in a noncompensable disability rating based on the above schedular data. On the authorized audiological evaluation, puretone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 25 30 60 60 43.75 LEFT 40 50 60 70 55.00 Speech audiometry revealed speech recognition ability of 96 percent in the right ear and 80 percent in the left ear. Applying Table VI to the above values results in a Level I numeric designation for the right ear and a Level IV numeric designation for the left ear. Applying the hearing levels from Table VI to Table VII, a 0 percent evaluation is derived. The Board acknowledges the Veteran’s representative’s contention that the medical evidence, including the August 2020 VA examination report, does not adequately address the history of the Veteran’s disability; specifically, the Veteran has issues following directions, communicating on the telephone, and hearing other people. However, the impairments described are the functional impacts of the Veteran’s hearing loss and are therefore contemplated by the rating criteria. Doucette v. Shulkin, 28 Vet. App. 366 (2017); see Rossy v. Shulkin, 29 Vet. App. 142, 145 (2017). Accordingly, the Board finds that a compensable rating for bilateral hearing loss is not warranted. The Board has considered the doctrine of reasonable doubt, but finds that the record does not provide an approximate balance of negative and positive evidence on the merits. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. M. C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Vashaw, 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.