Citation Nr: 21023074 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 16-26 554 DATE: April 20, 2021 ORDER The claim of entitlement to an initial compensable evaluation for left ear hearing loss is denied. REMANDED The claim of entitlement to an initial evaluation higher than 30 percent for migraine headaches is remanded. FINDING OF FACT Throughout the period on appeal, left ear hearing loss has been manifested by Level I hearing loss. CONCLUSION OF LAW The criteria to establish a compensable evaluation for left ear hearing loss have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.85, Tables VI, VIA, VII; 4.86; Diagnostic Code 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from August 2009 to November 2009, and from July 2011 to September 2012. This matter comes before the Board of Veterans’ Appeals (Board) from rating decisions by the Agency of Original Jurisdiction (AOJ). A May 2015 rating decision granted service connection for left ear hearing loss and assigned a noncompensable evaluation. A July 2015 rating decision granted service connection for migraine headaches and assigned a 30 percent evaluation. The Board remanded these issues for additional development of the record in December 2018. Evaluation of left ear hearing loss Disability evaluations are determined by the application of a schedule of ratings based on average impairment in earning capacity. 38 U.S.C. § 1155 (2012). Percentage evaluations are determined by comparing the manifestations of a particular disorder with the requirements contained in the VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can practically be determined, the average impairment in earning capacity resulting from such disease or injury and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Evaluations for hearing loss range from noncompensable to 100 percent, based upon organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests (Maryland CNC), together with the average hearing threshold level as measured by pure tone audiometry tests in the frequencies 1000, 2000, 3000, and 4000 cycles per second. 38 C.F.R. § 4.85(a) and (d). To evaluate the degree of disability for service-connected bilateral hearing loss, the rating schedule establishes eleven (11) auditory acuity levels, designated from level I, for essentially normal acuity, through level XI, for profound deafness. 38 C.F.R. § 4.85, Diagnostic Code 6100. The assignment of disability ratings for hearing impairment is 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). Where impaired hearing is service-connected in only one ear, in order to determine the percentage evaluation from Table VII, the non-service-connected ear will be assigned a designation for hearing impairment of I, subject to the provisions of 38 C.F.R. § 3.383. When the pure tone thresholds at each of the four specified frequencies (1000, 2000, 3000, and 4000 hertz) are 55 decibels or more, or when the pure tone thresholds are 30 decibels or less at 1000 Hz and 70 decibels or more at 2000 Hz, 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 highest Roman numeral. 38 C.F.R. § 4.86. As no such exceptional pattern of hearing loss is shown, § 4.86 does not apply. On VA examination in April 2015, the following puretone thresholds were reported: HERTZ 1000 2000 3000 4000 Average LEFT 15 5 5 55 20 The left ear speech recognition score was 100 percent. On VA examination in February 2019, the following puretone thresholds were reported: HERTZ 1000 2000 3000 4000 Average LEFT 25 20 35 60 35 The left ear speech recognition score was 100 percent. In July 2020, the following puretone thresholds were reported: HERTZ 1000 2000 3000 4000 Average LEFT 25 25 40 50 35 The left ear speech recognition score was 100 percent. The Board observes that application of the regulation to the findings of the examinations discussed above result in a numeric value of I for the left ear. A noncompensable evaluation results when that value, along with the numeric value of I for the right ear, is applied to Table VII. 38 C.F.R. § 4.85, Diagnostic Code 6100. As such, the currently assigned noncompensable evaluation is correct for the entire period of the appeal. The Board does not doubt the sincerity of the Veteran’s assertions regarding the severity of his hearing loss, or its functional impact. However, the Board must apply the regulation as it is currently written, which requires objective audiometric testing at certain levels to qualify for the various levels of compensation. The more probative evidence consists of that prepared by skilled audiologists, and such evidence demonstrates that the currently assigned evaluation for the Veteran’s left ear hearing loss is appropriate. The evidence preponderates against a finding that a higher evaluation is warranted. REASONS FOR REMAND Evaluation of migraine headaches In the December 2018 remand, the Board noted that there was evidence of an increase in the severity of the Veteran’s headaches. It directed that an examination be conducted, and that the examiner should elicit a complete history from the Veteran regarding the severity and frequency of his migraine headaches since 2015. In July 2020, a nurse practitioner reviewed the claims file. She indicated that an in-person examination was not conducted. No recitation of the Veteran’s history was included. Rather, the clinician indicated the date of diagnosis and noted the Veteran’s prescribed medication. The Board observes that the higher 50 percent evaluation for migraines requires evidence demonstrating very frequent, completely prostrating and prolonged attacks productive of severe economic inadaptability. Absent a current and complete history from the Veteran, the Board is unable to determine whether his headache disability meets the criteria for the higher evaluation. Thus, an examination must be conducted. The matter is REMANDED for the following action: 1. Schedule the Veteran for an examination to determine the severity of his service-connected migraine headache disability. The ACE process must not be used. The claims file must be made available to the examiner. All necessary tests and studies should be accomplished, and all clinical findings should be reported in detail. The examiner must elicit from the Veteran a complete history regarding the severity and frequency of his migraine headaches. All pertinent symptomatology and findings referable to the Veteran’s headache disability should be reported in detail. (Continued on the next page)   2. Then, readjudicate the Veteran’s claim. If the decision remains adverse to the Veteran, he and his representative should be furnished a supplemental statement of the case (SSOC) and afforded an appropriate period within which to respond thereto. DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Barone, 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.