Citation Nr: 21015705 Decision Date: 03/18/21 Archive Date: 03/18/21 DOCKET NO. 13-08 741 DATE: March 18, 2021 ORDER Entitlement to a compensable rating for left ear hearing loss prior to April 10, 2013, and for bilateral hearing loss from that date, is denied. FINDING OF FACT Prior to April 10, 2013, the Veteran’s left ear hearing acuity is not shown to have been worse than level I in the left ear; from that date, his hearing acuity is not shown to have been worse than level II in the right ear or level III in the left ear. CONCLUSION OF LAW A compensable rating for left ear hearing loss prior to April 10, 2013 and for bilateral hearing loss from that date is not warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is a Veteran who served on active duty from February 1990 to September 1991. This matter is before the Board on appeal from a July 2011 rating decision. An interim (October 2017) rating decision granted service connection for right ear hearing loss, and assigned a 0 percent rating for bilateral hearing loss, effective April 10, 2013, (service connection for left ear hearing loss was granted in the July 2011 rating decision). In August 2019 a videoconference hearing was held before the undersigned; a transcript is in the record. In December 2019, the case was remanded for further development. Entitlement to a compensable rating for left ear hearing loss prior to April 10, 2013, and for bilateral hearing loss from that date, is denied. When the appeal is from the initial rating assigned with a grant of service connection, the severity of the disability during the entire period from the grant of service connection to the present is to be considered. “Staged” ratings may be assigned for distinct periods when different levels of impairment are shown. Fenderson v. West, 12 Vet. App. 119 (1999). Ratings for hearing loss disability are derived from Table VII of 38 C.F.R. § 4.85 by a mechanical application of the rating schedule to numeric designations assigned after audiometric evaluations are performed. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). The numeric designations correspond to eleven auditory acuity levels, indicated by Roman numerals, where Level I denotes essentially normal acuity and Level XI denotes profound deafness. The assignment of the appropriate numeric level is based on the results of controlled speech discrimination tests in combination with average puretone threshold. The average threshold is obtained from puretone audiometry in the frequencies of 1000, 2000, 3000, and 4000 Hertz. 38 C.F.R. § 4.85. Rating specialists use either Table VI or VIa of 38 C.F.R. § 4.85 to determine the correct Roman numeral designation. Table VIa is used when speech discrimination tests are inappropriate due to language difficulties, inconsistent speech discrimination scores, etc., or where there is an exceptional pattern of hearing loss (as defined in 38 C.F.R. § 4.86). One such pattern occurs when puretone thresholds at each of the four specified frequencies are 55 decibels or more. Another occurs when the puretone threshold at 1000 Hertz is 30 decibels or less and the puretone threshold at 2000 Hertz is 70 decibels or more. 38 C.F.R. § 4.86. At the outset, the Board observes that the Veteran did not have a hearing loss disability (as defined in 38 C.F.R. § 3.385) in the right ear prior to the February 2013 VA examination. Thus, the provisions of 38 C.F.R. § 3.383(a)(3) do not apply, and the right ear is assigned Level I hearing acuity in determining the appropriate rating for the right ear hearing loss on the April 2011 audiometry. On April 2011 VA audiology assessment audiometry, puretone thresholds, in decibels, were: HERTZ 1000 2000 3000 4000 Average LEFT 10 5 40 55 28 Speech audiometry revealed speech recognition ability of 100 percent in the left ear. Under Table VI, the Veteran had level I hearing acuity in the left ear. Considered with the level I hearing acuity assigned for the right ear, such acuity warrants a 0 percent rating under Table VII. The audiologist indicated that the Veteran would have difficulty (without a hearing aid) hearing and understanding in most situations but particularly in the presence of background noise. A February 2012 VA treatment record notes that the Veteran reported significant difficulty understanding conversation at home, on TV, and at school. It was noted that his last hearing test was in April 2011, and he reported no specific ear problems, and there was no change in the hearing acuity in either ear since that time. On February 2013 VA audiology assessment audiometry, puretone thresholds were: HERTZ 1000 2000 3000 4000 Average RIGHT 10 10 40 60 30 LEFT 10 10 60 60 35 Speech audiometry revealed speech recognition ability of 100 percent in each ear. Under Table VI, the Veteran had level I hearing acuity in each ear, warranting a 0 percent rating under Table VII. He reported that his hearing loss interferes with daily conversations, daily; that he often has to ask for what was said to be repeated; and that his children were frustrated by his poor hearing ability. At the January 2017 Decision Review Officer (DRO) hearing, the Veteran’s wife testified that he kept TV volume too loud; he reported that he has trouble hearing normal conversation. On August 2017 VA audiology assessment audiometry, puretone thresholds were: HERTZ 1000 2000 3000 4000 Average RIGHT 15 20 60 65 40 LEFT 20 20 60 65 41 Speech audiometry revealed speech recognition ability of 92 percent in each ear. Under Table VI, the Veteran had level I hearing acuity in each ear, warranting a 0 percent rating under Table VII. He reported daily use of hearing aids. At the August 2019 Travel Board hearing, the Veteran testified that his hearing acuity had worsened since his last hearing examination and that he had difficulty hearing the TV. On January 2021 VA audiology assessment audiometry, puretone thresholds were: HERTZ 1000 2000 3000 4000 Average RIGHT 40 40 75 80 59 LEFT 35 45 80 85 61 Speech audiometry revealed speech recognition ability of 94 percent in the right ear and 88 percent in the left ear. Under Table VI, the Veteran had level II hearing acuity in the right ear and level III hearing in the left ear, warranting a 0 percent rating under Table VII. He reported that it is very hard for him to hear and understand what people are saying, and this causes him to become angry. The record does not include any further pertinent audiometry during the period for consideration on appeal. As the assignment of a disability rating for hearing impairment is derived by mechanical application of the rating schedule to the numeric designations assigned after audiometry evaluations are rendered, there is no doubt as to the proper evaluation to be assigned. Lendenmann, 3 Vet. App. 345; 38 C.F.R. § 4.85, Code 6100. Prior to April 10, 2013, the Veteran’s left ear hearing acuity is not shown to have been worse than level I in the left ear; from that date, his hearing acuity is not shown to have been worse than level II in the right ear and level III in the left ear. The findings on official audiometry fall squarely within the parameters of the criteria for a 0 percent rating. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). The Board has no reason to question the Veteran’s reports of impairment due to his hearing loss; however, the problems understanding conversation and hearing what is said on TV he describes are encompassed by the criteria for the 0 percent schedular rating assigned. Therefore, those criteria are not inadequate, and referral for extraschedular consideration is not necessary. See Thun v. Peake, 22 Vet. App. 111 (2008). GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Bayles, 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.