Citation Nr: 21022980 Decision Date: 04/19/21 Archive Date: 04/19/21 DOCKET NO. 15-32 049 DATE: April 19, 2021 ORDER An increased, compensable evaluation for bilateral hearing loss is denied. FINDING OF FACT No worse than Level II hearing loss in the right ear and no worse than Level II hearing loss in the left ear is shown throughout the entire period on appeal. CONCLUSION OF LAW The criteria for a compensable evaluation for bilateral hearing loss are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85, Diagnostic Code 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran was a member of the Army National Guard from August 1974 to August 1977. He had a period of initial active duty training October 1974 to March 1975. This appeal comes before the Board of Veterans Appeals (Board) from a December 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). This case was remanded in March 2019 for further development. While on remand, a March 2020 rating decision granted service connection for degenerative arthritis of the spine and left lower extremity radiculopathy. Evaluations of 40 percent and 20 percent, respectively, were granted effective in September 2012. The issue of service connection for a back disability is therefore no longer before the Board. The Board finds that the agency of original jurisdiction (AOJ) has fulfilled the duty to notify and assist the Veteran in substantiating his claim for VA benefits, as prescribed in 38 U.S.C. §§ 5100, 5102, 5103, 5109A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). All identified and relevant records, including records from the Social Security Administration, have been obtained or appropriate efforts to secure them have been undertaken. VA examination was accorded the Veteran as a result of the March 2019 remand. See 38 U.S.C. § 5103A(d), 38 C.F.R. § 3.159(c)(4), and McLendon v. Nicholson, 20 Vet. App. 79 (2006). Neither the Veteran nor his representative have argued against a finding that the AOJ has not ultimately met its duty to assist. The Board thus finds that the AOJ has met its duty to assist and further remand is not required. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Disability ratings are assigned in accordance with VA’s Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. See 38 U.S.C. § 1155; 38 C.F.R. § § 3.321(a), 4.1. Separate diagnostic codes identify the various disabilities. 38 U.S.C. Part 4. “Staged” ratings are appropriate for any rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Disability evaluations for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Examinations are conducted using the controlled speech discrimination tests together with the results of the pure tone audiometry test. See 38 C.F.R. § 4.85. The results are analyzed using tables contained in 38 C.F.R. § 4.85, Code 6100. The rating schedule for hearing loss provides that evaluations of hearing loss range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests together with average hearing threshold levels as measured by pure tone audiometry tests in the frequencies 1000, 2000, 3000 and 4000 cycles per second (Hertz). To evaluate the degree of disability from defective hearing, the rating schedule established eleven auditory acuity levels designated from Level I for essentially normal acuity through Level XI for profound deafness. 38 C.F.R. § 4.85, Code 6100. The Veteran asserts his hearing loss impairment has increased in severity. A June 2014 examination report reflects puretone thresholds, in decibels: Hertz 1000 2000 3000 4000 Avg Right 30 40 60 60 50 Left 20 50 65 65 50 Speech discrimination score was 96 percent in the right ear and 90 percent in the left ear using the Maryland CNC list. These results correspond to a Level I hearing impairment in the right ear and a Level II hearing impairment in the left ear. This equates to a noncompensable rating for bilateral hearing loss. 38 C.F.R. § 4.85, Code 6100. The November 2019 examination report reflects puretone thresholds, in decibels: Hertz 1000 2000 3000 4000 Avg Right 50 50 65 65 58 Left 40 50 65 65 55 Speech discrimination score was 96 percent in the right ear and 94 percent in the left ear using the Maryland CNC list. These results correspond to a Level II hearing impairment in the right ear and a Level I hearing impairment in the left ear. This equates to a noncompensable percent rating for bilateral hearing loss. 38 C.F.R. § 4.85, Code 6100. The medical evidence does not support an evaluation greater than zero percent for the service-connected bilateral hearing loss, as the medical evidence does not show findings of greater than Level II hearing loss in either ear at any time throughout the appeal period. Alternative methods for determining hearing acuity are provided in 38 C.F.R. §§ 4.85 and 4.86. However, the alternate method is not for application in the Veteran’s case, because no VA examiner has certified that the use of the speech discrimination test is not appropriate, and because the medical evidence does not show the Veteran has Puretone thresholds at 30 decibels or less at 1000 Hz and 70 decibels or more at 2000 Hz in either ear, or at 55 or more in each of the four frequencies (1000, 2000, 3000, 4000 Hz) in either ear. The Veteran has reported that his hearing loss makes it difficult for him to hear from a distance, in noisy environments, where there is background noise, or in group situations. He cannot understand clearly what is said, and he has to have people repeat themselves to him. In addition, he stated he struggles to hear over the phone and needs to have the television volume up loud at home. However, 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, discussed and applied above. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). Accordingly, a compensable rating for the Veteran’s bilateral ear hearing loss is not warranted. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Bakke, Lila J. 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.