Citation Nr: 21016227 Decision Date: 03/22/21 Archive Date: 03/22/21 DOCKET NO. 15-00 253A DATE: March 22, 2021 ORDER Entitlement to an initial compensable rating for bilateral hearing loss prior to August 13, 2019, and in excess of 20 percent thereafter, is denied. FINDINGS OF FACT 1. For the period prior to August 13, 2019, the Veteran’s bilateral hearing loss was rated as Level I for the right ear and Level I for the left ear. 2. On August 13, 2019, the Veteran’s bilateral hearing loss was rated as Level V for the right ear and Level V for the left ear. CONCLUSION OF LAW The criteria for a compensable rating for bilateral hearing loss for the period prior to August 13, 2019, and in excess of 20 percent for the period thereafter, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.85, Diagnostic Code (DC) 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Army from January 1963 to January 1966. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2011 rating decision issued by a Department of Veterans Affairs (VA) regional office. This matter was previously remanded by the Board in May 2018 and December 2019. In August 2017, the Veteran testified via video conference before the undersigned Veterans Law Judge (VLJ). A copy of the hearing transcript has been associated with the electronic claims file. See August 2018 Board Hearing Transcript. As an initial matter, as discussed in the December 2019 Board decision, during the pendency of this appeal, the Veteran’s disability was assigned a rating of 20 percent, effective August 13, 2019, in an October 2019 rating decision. As this increase does not represent a total grant of benefits sought on appeal, the claim for a higher initial rating remains before the Board. See AB v. Brown, 6 Vet. App. 35 (1993). Entitlement to an initial compensable rating for bilateral hearing loss prior to August 13, 2019, and in excess of 20 percent thereafter, is denied. Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran’s disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). Where the Veteran timely appeals the rating initially assigned for the service-connected disability, VA must consider whether the Veteran is entitled to “staged” ratings to compensate him for times since filing his claim when his disability may have been more severe than at other times during the course of his appeal. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). If two ratings are potentially applicable, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In view of the number of atypical instances, it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. 38 C.F.R. § 4.21. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent with the facts shown in every case. Any reasonable doubt regarding the degree of disability is resolved in favor of the Veteran. 38 C.F.R. § 3.102, 4.3. The assignment of disability ratings for hearing impairment is derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are conducted. Lendenmann v. Principi, 3 Vet. App. 345 (1992). The disability rating of a hearing loss disorder is determined by applying the criteria set forth at 38 C.F.R. § 4.85. Ratings for hearing loss range from 0 to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests together with the average pure tone hearing threshold level, as measured by pure tone audiometric tests in the frequencies 1000, 2000, 3000, and 4000 Hertz, divided by four. This average is used in all cases to determine the Roman numeral designation for hearing impairment from Table VI or VIa. 38 C.F.R. § 4.85(a), (d). Table VI, Numeric Designation of Hearing Impairment Based on Pure Tone Threshold Average and Speech Discrimination, is used to determine a Roman numeral designation (I through XI) for hearing impairment based on a combination of the percent of speech discrimination (horizontal rows) and the pure tone threshold average (vertical columns). The Roman numeral designation is located at the point where the percentage of speech discrimination and pure tone threshold average intersect. 38 C.F.R. § 4.85(b). Table VII, Percentage Evaluations for Hearing Impairment, is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment of each ear. The horizontal rows represent the ear having the better hearing, while the vertical columns represent the ear having the poorer hearing. The percentage evaluation is located at the point where the row and column intersect. 38 C.F.R. § 4.85(e). In addition, 38 C.F.R. § 4.86 applies to exceptional patterns of hearing impairment. Under its provisions, when the pure tone threshold at each of the four specified frequencies of 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. When the pure tone 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. That numeral will then be elevated to the next higher numeral. 38 C.F.R. § 4.86. The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds persuasive or unpersuasive, and proving reasons for rejecting any evidence favorable to the claimant. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not afforded each piece of evidence contained in the record as every item of evidence does not have the same probative value. Id. at 57. The Board in no way discounts the difficulties that the Veteran experiences due to his hearing loss. However, the Board must base its determination on the results of the audiometric studies of record. Lindenmann v. Principi, supra. Factual and Procedural Background. In July 2010, the Veteran submitted a claim of entitlement to service connection for, inter alia, bilateral hearing loss. See July 2010 VA Form 21-526. In a September 2011 rating decision, the Agency of Original Jurisdiction (AOJ) granted service connection for bilateral hearing loss and assigned a noncompensable rating, effective July 23, 2010. Thereafter, in December 2011, the Veteran submitted an informal Notice of Disagreement (NOD) as to the initial rating assigned. This appeal was ultimately perfected and is the matter currently before the Board. The Veteran’s VA treatment records are silent with respect to his service-connected bilateral hearing loss. See San Antonio VA Medical Center (VAMC) records, received December 2019 and February 2021 in CAPRI. In July 2011, the Veteran underwent a VA audiological examination, in which the examiner noted average puretone thresholds of 52.5 decibels for the right ear and 48.75 decibels for the left ear. The examiner also noted speech recognition ability 100 percent for the right ear and 98 percent for the left ear. See July 2011 VA Hearing Loss Examination. In October 2013, the Veteran submitted a lay statement and several “buddy” statements, each attesting that the Veteran experiences buzzing/ringing in his ears, has difficulty hearing in crowds, especially with higher-pitched voices, and has to ask people to repeat what they are saying. See October 2013 Veteran Correspondence; October 2013 D.M. Lay Statement; October 2013 D.Q. Lay Statement; October 2013 E.S. and A.S. Lay Statement; October 2013 C.T. Lay Statements; October 2013 O.R. Lay Statement. In August 2017, the Veteran testified that he experiences difficulty hearing, particularly with multiple women and children’s voices. See August 2017 Board Hearing Transcript. In August 2019, the Veteran underwent a VA audiological examination, in which the examiner noted average puretone thresholds of 53.75 for the right ear and 52.5 for the left ear. The examiner also noted speech recognition ability of 72 percent bilaterally. See August 2019 VA Hearing Loss and Tinnitus Disability Benefits Questionnaire (DBQ). Analysis. The Veteran contends that he is entitled to a higher initial rating for his service-connected bilateral hearing loss. Importantly, as this is an appeal as to the initial rating assigned, the relevant temporal focus is from July 23, 2010, the date of award of service connection to present. Upon review of the Veteran’s entire history, the Board concludes that the Veteran’s bilateral hearing loss warrants staged ratings as follows: a noncompensable rating from July 23, 2010, to August 12, 2019, and a 20 percent rating beginning August 13, 2019. In the July 2011 audiological examination, puretone thresholds, in decibels, were recorded as follows: HERTZ 1000 2000 3000 4000 RIGHT 25 55 60 70 LEFT 25 40 60 70 This indicates average puretone thresholds of 53 for the right ear and 49 for the left ear. Speech audiometry revealed speech recognition ability of 100 percent for the right ear and 98 percent for the left ear. See July 2011 VA Hearing Loss Examination. Application of these puretone threshold average levels and speech recognition ability (percentage of discrimination) using Table VI yields a value of I for the right ear and I for the left ear. Applying these values to Table VII yield a noncompensable rating.   However, in the August 2019 audiological examination, puretone thresholds in decibels were recorded as follows: HERTZ 1000 2000 3000 4000 RIGHT 30 45 70 70 LEFT 25 40 70 75 This indicates average puretone thresholds of 54 for the right ear and 53 for the left ear. Speech audiometry revealed speech recognition ability of 72 percent bilaterally. See July 2011 VA Hearing Loss Examination. Application of these puretone threshold average levels and speech recognition ability (percentage of discrimination) using Table VI yields a value of V for the right ear and V for the left ear. Applying these values to Table VII yield a disability rating of 20 percent. The Board acknowledges that the Veteran has reported, and has submitted “buddy” statements supporting, that he experiences buzzing/ringing in his ears, has difficulty hearing in crowds, especially with higher-pitched voices, and has to ask people to repeat what they are saying. See October 2013 Veteran Correspondence; October 2013 D.M. Lay Statement; October 2013 D.Q. Lay Statement; October 2013 E.S. and A.S. Lay Statement; October 2013 C.T. Lay Statements; October 2013 O.R. Lay Statement; August 2017 Board Hearing Transcript. When a claimant’s hearing loss results in an inability to hear or understand speech or to hear other sounds in various contexts, those effects are contemplated by the schedular rating criteria. See Doucette v. Shulkin, 28 Vet. App. 366, 369 (2017). The Board in no way discounts the sincere difficulties that the Veteran experiences due to his hearing loss. However, rating of a hearing loss disability involves the mechanical application of the rating criteria to the findings on official audiometry. See Lendenmann v. Principi, supra. Additionally, with respect to the Veteran’s buzzing/ringing in his ears, the Veteran is currently service connected for tinnitus throughout the period on appeal. In sum, the Board finds that staged ratings are appropriate and that the preponderance of the evidence reflects that the Veteran’s bilateral hearing loss warrants the ratings as currently assigned: a noncompensable rating from July 23, 2010, to August 12, 2019, and a 20 percent rating beginning August 13, 2019. As such, the Veteran’s claim is denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, as the preponderance of the evidence is against the claim, that doctrine does not apply. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. T. Martin III, 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.