Citation Nr: 21020765 Decision Date: 04/08/21 Archive Date: 04/08/21 DOCKET NO. 17-30 003 DATE: April 8, 2021 ORDER Entitlement to a compensable rating for bilateral hearing loss is denied. FINDING OF FACT Throughout the period on appeal, the Veteran’s hearing impairment has been no worse than Level I in the right ear and Level II in the left ear. CONCLUSION OF LAW The criteria for a compensable rating for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 3.385, 4.1, 4.2, 4.3, 4.7, 4.15, 4.16, 4.85, Diagnostic Code (DC) 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 2006 to September 2009. This matter comes before the Board of Veterans’ Appeals (Board) following a February 2020 Board remand. This matter was originally on appeal from a February 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office in St. Paul, Minnesota (RO). The Board notes that service connection for a right ankle condition, left ankle condition, and a bilateral knee condition was originally on appeal. However, service connection was granted in a September 2020 rating decision. This favorable decision has not been appealed by the Veteran and these issues are, therefore, no longer before the Board. The Veteran was afforded a hearing before the undersigned Veterans Law Judge in December 2019. A transcript of the hearing has been associated with the Veteran’s electronic claims file. Increased Rating Disability evaluations are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). That said, higher evaluations may be assigned for separate periods based on the facts found during the appeal period. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). This practice is known as staged ratings. Id. If the evidence for and against a claim is in equipoise, the claim will be granted. 38 C.F.R. § 4.3. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Assignment of a disability rating for hearing loss is derived by a mechanical application of the rating schedule to the specific numeric designations assigned after audiology testing is completed. Lendenmann v. Principi, 3 Vet. App. 345 (1992). An examination for hearing impairment for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a puretone audiometry test. 38 C.F.R. § 4.85. The rating schedule establishes 11 auditory hearing acuity levels based upon average puretone thresholds and speech discrimination. See 38 C.F.R. § 4.85. “Puretone threshold average” as used in Tables VI and VIa is the sum of the puretone thresholds at 1000, 2000, 3000 and 4000 Hertz and divided by four. This average is used in all cases (including those of § 4.86) to determine a Roman numeral designation from Tables VI and VIa. 38 C.F.R. § 4.85(d). Table VI, “Numeric Designation of Hearing Impairment Based on Puretone 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 puretone threshold average (vertical columns). The Roman numeral designation is located at the point where the row and column intersect. 38 C.F.R. § 4.85(b). Table VIa, “Numeric Designation of Hearing Impairment Based Only on Puretone Threshold Average,” is used to determine a Roman numeral designation (I through XI) for hearing impairment based only on puretone threshold average. Table VIa is used when the examiner certifies that the use of the speech discrimination test is not appropriate due to language difficulties, inconsistent speech discrimination scores, etc., or when indicated under the provisions of § 4.86. 38 C.F.R. § 4.85(c). Table VII, “Percentage Evaluations of Hearing Impairment,” is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment in each ear. The horizontal rows represent the ear having poorer hearing and the vertical columns represent the ear having the better hearing. The percentage evaluation is located at the point where the row and the column intersect. 38 C.F.R. § 4.85(e). Special provisions apply in instances of exceptional hearing loss. See 38 C.F.R. § 4.86. When the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) are all 55 decibels or more, the adjudicator must determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa in 38 C.F.R. § 4.85, whichever results in the higher numeral. 38 C.F.R. § 4.86(a). Also, 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. That numeral will then be elevated to the next higher Roman numeral. Each ear is evaluated separately. 38 C.F.R. § 4.86(b). 1. Entitlement to a compensable rating for bilateral hearing loss The Veteran asserts that a compensable evaluation is warranted for his bilateral hearing loss. The Veteran was afforded a private audiogram examination in March 2013. The examiner indicated the Veteran’s pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 10 5 20 35 LEFT 10 15 25 50 50 Based on these results, the average puretone threshold was 18 decibels for the right ear and 35 decibels for the left ear. 38 C.F.R. § 4.85(d). The examination does not indicate speech recognition. The examiner did not use the Maryland CNC speech discrimination test, and therefore cannot be used for rating purposes. See 38 C.F.R. § 4.85(a). In February 2015, the Veteran was afforded a VA examination. The examiner indicated the Veteran’s pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 15 15 25 40 LEFT 20 20 35 55 50 Based on these results, the average puretone threshold was 24 decibels for the right ear and 40 decibels for the left ear. 38 C.F.R. § 4.85(d). Speech recognition was 100 percent in the right ear and 94 percent in the left ear, as measured by the Maryland CNC test. Applying these values to Table VI, the result is a Level I Roman numeral designation for the right ear and a Level I Roman numeral designation for the left ear. When the Level I and Level I designations from the February 2015 examination are applied to Table VII, the result is a noncompensable rating. 38 C.F.R. § 4.85; Lendenmann, 3 Vet. App. 345. The Veteran was afforded a private audiogram examination. The examiner indicated the Veteran’s pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 5 5 25 45 LEFT 15 10 40 55 60 Based on these results, the average puretone threshold was 20 decibels for the right ear and 41 decibels for the left ear. 38 C.F.R. § 4.85(d). The examination does not indicate speech recognition. The examiner did not use the Maryland CNC speech discrimination test, and therefore cannot be used for rating purposes. See 38 C.F.R. § 4.85(a). In the Veteran’s December 2019 Board hearing, he asserted that his hearing worsened since his last VA examination and requested a new examination to determine the current severity of his bilateral hearing loss. In July 2020, the Veteran was afforded a new VA examination. The examiner indicated the Veteran’s pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 10 10 30 50 LEFT 15 10 35 55 50 Based on these results, the average puretone threshold was 25 decibels for the right ear and 38 decibels for the left ear. 38 C.F.R. § 4.85(d). Speech recognition was 100 percent in the right ear and 90 percent in the left ear, as measured by the Maryland CNC test. Applying these values to Table VI, the result is a Level I Roman numeral designation for the right ear and a Level II Roman numeral designation for the left ear. When the Level I and Level II designations from the July 2020 examination are applied to Table VII, the result is a noncompensable rating. As indicated above, rating a hearing loss disability involves the mechanical application of rating criteria to the results of specified audiometric studies. Here, the objective medical evidence of record consists of the February 2015 and July 2020 VA examinations, which indicate that the Veteran’s hearing loss does not warrant a compensable rating at any point during the appellate period. 38 C.F.R. § 4.85. Moreover, the Veteran’s description of hearing difficulties is contemplated by the rating criteria. Doucette v. Shulkin, 28 Vet. App. 366 (2017). Accordingly, entitlement to a compensable rating for bilateral hearing loss is denied. TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Daley, 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.