Citation Nr: 21021368 Decision Date: 04/12/21 Archive Date: 04/12/21 DOCKET NO. 17-67 315 DATE: April 12, 2021 ORDER Entitlement to an initial compensable disability rating for right ear hearing loss is denied. FINDING OF FACT For the entire initial rating period on appeal from April 28, 2010, the Veteran's right ear hearing loss has been manifested by hearing acuity of no worse than Level VII, which when associated with a non-service-connected left ear, yields a noncompensable disability rating. CONCLUSION OF LAW The criteria for an initial compensable disability rating for right ear hearing loss have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ § 3.383, 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code (DC) 6100 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1957 to March 1961. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2016 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In April 2019, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the proceeding has been associated with the record. In June and October 2019, the Board remanded the claim for further development. The matter has now been returned to the Board for further adjudicative action. The Board observes that there has been substantial compliance with the remand directives. Disability Rating Legal Criteria Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated based on specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The degrees of disability specified are considered adequate to compensate for a loss of working time proportionate to the severity of the disability. 38 C.F.R. § 4.1. The Veteran's entire history is to be considered when making disability evaluations. 38 C.F.R. § 4.1. If, as here, there is disagreement with the initial rating assigned following a grant of service connection, separate ratings can be assigned for separate periods, based upon the facts found. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). See also AB v. Brown, 6 Vet. App. 35 (1993) (a claim for an original rating remains in controversy when less than the maximum available benefit is awarded); Hart v. Mansfield, 21 Vet. App. 505 (2007). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Rating Right Ear Hearing Loss For the entire initial rating period on appeal from April 28, 2010, the Veteran's service-connected right ear hearing loss has been assigned a noncompensable rating under 38 C.F.R. § 4.85, Diagnostic Code (DC) 6100. The Rating Schedule provides rating tables for the evaluation of hearing impairment. Table VI assigns a Roman numeral designation (I through XI) for hearing impairment based on the pure tone threshold average and controlled speech discrimination (Maryland CNC) testing. Table VIA assigns a Roman numeral designation for hearing impairment based only on the pure tone threshold average and is used when speech discrimination testing is not appropriate or when indicated under the provisions of 38 C.F.R. § 4.86, which relate to exceptional patterns of hearing impairment. The "pure tone threshold average" is the sum of the pure tone thresholds at 1000, 2000, 3000, and 4000 Hertz, divided by four. 38 C.F.R. § 4.85 (d). Table VII is used to determine the rating assigned by combining the Roman numeral designations for hearing impairment of each ear. 38 C.F.R. § 4.85(e). Exceptional patterns of hearing impairment are provided for in 38 C.F.R. § 4.86. When the pure tone 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 is evaluated separately. 38 C.F.R. § 4.86(a). The ratings for disability compensation for hearing loss are determined by the mechanical, meaning nondiscretionary, application of the criteria in Table VI and Table VII. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Pursuant to 38 C.F.R. § 4.85(f) for instances where only one ear is service-connected, in order to determine the percentage evaluation from Table VII, the non-service-connected ear will be assigned a Roman Numeral designation of I for hearing impairment. The Veteran contends that his right ear hearing loss is more severe than contemplated by a noncompensable disability rating for his service-connected right ear hearing loss. After a review of all the lay and medical evidence of record, the Board finds that a higher initial (compensable) disability rating for right ear hearing loss is not warranted. In the Veteran’s December 2019 bilateral ear audiometric examination yielded the following results: HERTZ 500 1000 2000 3000 4000 RIGHT 65 65 90 90 5 LEFT 105+ 105+ 105+ 105+ 105+ Speech audiometry revealed speech recognition ability of 44% percent in the right ear and 0% in the left ear. As it was suspected that there was a transcription error in the value recorded at 4000 Hz, the examination was repeated. In a January 2021 audiometric examination, the Veteran's bilateral ear audiometric examination yielded the following results: HERTZ 500 1000 2000 3000 4000 RIGHT 55 65 80 85 90 LEFT 105+ 105+ 105+ 105+ 105+ Speech audiometry revealed speech recognition ability of 82 percent in the right ear and 0 percent in the left ear. The average pure tone threshold in the right ear was 80. As the Veteran’s hearing shows an exceptional pattern of hearing loss as detailed in 38 C.F.R. § 4.86, these results were applied to both Table VI and Table VIa. A designation of V is obtained from Table VI based on the combination of the Veteran’s pure tone threshold average and speech discrimination score. A designation of VII is obtained from Table VIa based on a pure tone threshold range of 77 to 83. Thus, application of Table VIa affords the higher designation. The non-service-connected left ear hearing loss is assigned a designation of I in Table VII. See 38 C.F.R. § 4.85(f). The point where designations VII and I intersect in Table VII yields a rating of 0 percent. 38 C.F.R. § 4.85, DC 6100. As noted above, the Veteran is not service connected for left ear hearing loss as he entered service with left ear deafness since childhood. However, in accordance with the paired organs provision of 38 C.F.R. § 3.383(a)(3), if there is hearing impairment in one ear compensable to a degree of 10 percent or more as a result of service-connected disability and hearing impairment meeting the provisions § 3.385 in the other ear as a result of nonservice-connected disability, then compensation is payable for the combination of the service-connected and nonservice-connected hearing loss as if both disabilities were service-connected. In determining whether a compensable rating may be assigned the service-connected ear, the nonservice-connected ear is initially assigned a value of Roman numeral I in Table VII. 38 C.F.R. § 4.85(f). The service-connected ear must then have a numeric value of either X or XI, as determined by Table VI or Table VIa (as applicable), in order to be assigned a compensable rating. 38 C.F.R. § 4.85, DC 6100, Table VII (combination of Level I and either Level X or Level XI results in a 10 percent rating). As discussed above, the right ear hearing loss is assigned a Roman Numeral VII from Table VIa, and once intersected with a Roman Numeral I assigned for the non-service-connected left ear hearing loss in Table VII, yields a noncompensable (0 percent) rating. (CONTINUED ON NEXT PAGE)   Accordingly, the Board finds that, for the entire initial rating period on appeal from April 28, 2010, the criteria for a higher initial (compensable) rating for the Veteran’s right ear hearing loss have not been met. Because it is noncompensable, special consideration of the Veteran’s right ear hearing loss based on paired organs is not warranted. 38 U.S.C. § 1160(a)(3); 38 C.F.R. § 3.383(a)(3). E. Choi Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Adams Hill, 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.