Citation Nr: 21022309 Decision Date: 04/15/21 Archive Date: 04/15/21 DOCKET NO. 18-48 368 DATE: April 15, 2021 ORDER Entitlement to a compensable rating for bilateral hearing loss, prior to September 7, 2018, is denied. Entitlement to a rating in excess of 20 percent for bilateral hearing loss, from September 7, 2018, is denied. FINDINGS OF FACT 1. Prior to September 7, 2018, the Veteran had no worse than Level II hearing loss in his right ear and no worse than Level III hearing loss in his left ear. 2. From September 7, 2018, the Veteran had no worse than Level V bilateral hearing loss. CONCLUSIONS OF LAW 1. Prior to September 7, 2018, the criteria for a compensable rating for bilateral hearing loss are not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2018); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.7, 4.10, 4.21, 4.85, Diagnostic Code 6100 (2020). 2. From September 7, 2018, the criteria for a rating in excess of 20 percent for bilateral hearing loss are not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1-4.7, 4.10, 4.21, 4.85, Diagnostic Code 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from August 1964 to August 1968. This appeal comes before the Board of Veterans’ Appeals (Board) from a July 2016 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO), in Pittsburgh, Pennsylvania which granted service connection for bilateral hearing loss with a non-compensable rating. The Board remanded the case in August 2019 for a new VA examination and the RO issued an April 2020 supplemental statement of case (SSOC) denying a compensable rating prior to September 7, 2018 for bilateral hearing loss and denying a rating in excess of 20 percent from September 7, 2018 for bilateral hearing loss. While this case was on remand, the Veteran’s representative withdrew from the appeal. August 9, 2019, Correspondence. The Veteran has not appointed a new representative. Increased Rating Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. See 38 U.S.C. § 1155; 38 C.F.R. Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted considering the entire recorded history, and each disability must be considered from the viewpoint of the Veteran working or seeking wok. 38 C.F.R. § 4.2. If two evaluations are potentially applicable, the higher evaluation 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. In all increased rating claims, staged ratings must be considered for the entire period on appeal. A staged rating is appropriate when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings under the applicable diagnostic code(s). Hart v. Mansfield, 21 Vet. App. 505, 509 (2007), Fenderson v. West, 12 Vet. App. 119 (1999). To evaluate the degree of disability for bilateral service-connected hearing loss, the rating schedule establishes auditory hearing acuity levels designated from Level I for essentially normal hearing acuity through Level XI for profound deafness. 38 C.F.R. § 4.85, Tables VI and VII. Disability ratings for hearing loss are derived from a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). The 38 C.F.R. § 4.85 provides Table VI to determine a Roman numeral designation (I through XI) for hearing impairment for each ear based on puretone thresholds and Maryland CNC testing. Table VII is then utilized to determine the rating assigned by combining the Roman numeral designations for hearing impairment of each ear. The “puretone threshold average” as used in Table VI is the sum of the puretone thresholds at 1000, 2000, 3000, and 4000 Hz, divided by four. This average is used in all cases to determine the Roman numeral designation for hearing impairment from Table VI or VIA. Where there are one of two exceptional patterns of hearing impairment as defined in 38 C.F.R. § 4.86, the rating may be based solely on puretone threshold testing. The first is where the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hz) is 55 dB or more. 38 C.F.R. § 4.86(a). The second is where the puretone threshold is 30 decibels or less at 1000 Hz and 70 dB or more at 2000 Hz. 38 C.F.R. § 4.86 (b). When the evidence fails to show an exceptional pattern of hearing impairment is present, then Table VI will be used to assign a Roman numeral designation. In describing the evidence, the Board refers to the frequencies of 1000 Hz, 2000 Hz, 3000 Hz, and 4000 Hz, as the frequencies of interest. 1. Entitlement to a compensable rating for bilateral hearing loss prior to September 7, 2018 The Veteran filed an April 2016 claim for increased rating for bilateral hearing loss because he was having increased difficulty deciphering words. During the May 2016 VA examination, puretone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 AVG RIGHT 35 40 70 65 52.5 LEFT 35 55 70 70 57.5 The speech recognition score using the Maryland CNC Test revealed speech recognition ability of 86 percent in the right ear and of 84 percent in the left ear. Applying the above test results under 38 C.F.R. § 4.85, Table VI and Table VII, the Veteran’s right ear hearing loss is assigned a numeric designation of II, and the left ear hearing loss is assigned a numeric designation of III. A numeric designation of II and III according to Table VII does not show that the Veteran meets the criteria for a compensable rating for his bilateral hearing loss. Therefore, the claim for a compensable rating for his service-connected bilateral hearing loss, prior to September 7, 2018, is not warranted under Table VII. See 38 C.F.R. § 4.85, DC 6100. For the foregoing reasons, the preponderance of the evidence is against the claim for a compensable rating for bilateral hearing loss prior to September 7, 2018. The benefit of the doubt doctrine is therefore not for application. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. 2. Entitlement to a rating in excess of 20 percent for bilateral hearing loss from September 7, 2018 In September 2018, while the current appeal was still pending, the Veteran reported at an informal conference with a Decision Review Officer that his hearing loss interfered with his employment and activities of daily living because of his difficulty communicating. During a September 2018 hearing evaluation conducted in the course of regular medical care, the examiner indicated that the Veteran’s word recognition using NU6 stimuli was 72 percent for the right ear and 68 percent for the left ear. See September 2018 Medical Treatment Records. However, the examiner did not provide puretone thresholds. Id. The RO assigned a 20 percent as of the date of this examination report. In August 2019, the Board remanded the case for a new VA examination to determine the current severity of the Veteran’s bilateral hearing loss. A December 2019 VA examination indicated puretone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 AVG RIGHT 40 55 60 70 56.25 LEFT 40 55 65 75 58.75 The speech recognition score using the Maryland CNC Test revealed speech recognition ability of 68 percent in the right ear and of 72 percent in the left ear. Applying the above test results under 38 C.F.R. § 4.85, Table VI and Table VII, the Veteran’s right ear hearing loss is assigned a numeric designation of V, and the left ear hearing loss is assigned a numeric designation of V. A numeric designation of V for both ears according to Table VII indicates that the Veteran meets the criteria for a rating of 20 percent for his bilateral hearing loss. Therefore, the claim for a rating in excess of 20 percent for his service-connected bilateral hearing loss, from September 7, 2018, is not warranted under Table VII. See 38 C.F.R. § 4.85, DC 6100. For the foregoing reasons, the preponderance of the evidence is against the claim for a rating in excess of 20 percent for bilateral hearing loss from September 7, 2018. The benefit of the doubt doctrine is therefore not for application. 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3. J. B. FREEMAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Aubee, 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.