Citation Nr: 21020942 Decision Date: 04/08/21 Archive Date: 04/08/21 DOCKET NO. 17-23 703 DATE: April 8, 2021 ORDER Entitlement to an initial compensable evaluation for bilateral hearing loss is denied. FINDINGS OF FACT 1. The Veteran failed to report for a VA examination scheduled in conjunction with the Board's April 2019 remand to address his claim for an increased rating. 2. Available evidence shows the Veteran’s hearing impairment has been no worse than Level I in each ear. 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, 4.3, 4.85, 4.86. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from March 1992 to March 1996. This matter comes before the Board of Veterans’ Appeals (Board) following an April 2019 Board remand. This matter was originally on appeal from a July 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In September 2018 the Veteran was afforded a Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing has been associated with the record. 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 Hart v. Mansfield, 21 Vet. App. 505 (2007); 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 1. Entitlement to an initial compensable evaluation for bilateral hearing loss The Veteran asserts that he is entitled to a compensable rating for his bilateral hearing loss. 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). In June 2014 the Veteran was afforded a VA examination. The audiometric testing revealed that the Veteran’s pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 15 20 50 LEFT 15 10 15 10 50 Based on these results, the average pure tone threshold was 25 decibels for the right ear and 21 for the left ear. 38 C.F.R. § 4.85(d). Speech recognition was 96 percent for the right ear and 92 percent for 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 for the left ear. When the Level I and Level I designations are applied to Table VII, the result is a 0 percent rating. 38 C.F.R. § 4.85; Lendenmann, 3 Vet. App. 345. Thus, this testing results in a rating equal to the already assigned 0 percent. A July 2014 rating decision granted service connection for bilateral hearing loss with an evaluation of zero percent, effective September 18, 2013. At a September 2018 Board hearing, the Veteran stated that it was hard for him to hear. The Veteran stated he would be willing to attend a new hearing examination if one was scheduled in response to his representative’s questioning. The claim was remanded by the Board in April 2019 for a contemporaneous examination given the Veteran's assertion that the severity of his disability has increased since the most recent rating examination. The record reflects that the Veteran was scheduled for a new examination but he canceled the examination for his bilateral hearing loss. No request to reschedule the examination was made by the Veteran. The Board emphasizes that the duty to assist is a two-way street; the Veteran must actively participate in the process of obtaining evidence to support his claim. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). When entitlement or continued entitlement to a benefit cannot be established or confirmed without a current VA examination or re-examination and a claimant, without good cause, fails to report for such examination or reexamination, action shall be taken in accordance with paragraph (b) 38 C.F.R. § 3.655, as appropriate. Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant, death of an immediate family member, etc. 38 C.F.R. § 3.655(a). When a claimant fails to report for an examination scheduled in conjunction with a claim for increase, the claim shall be denied. 38 C.F.R. § 3.655(b). 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 June 2014 VA examination, which indicates 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.