Citation Nr: 21023132 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 17-64 441 DATE: April 20, 2021 ORDER Entitlement to a disability rating higher than 10 percent for bilateral hearing loss is denied. FINDING OF FACT The Veteran’s bilateral hearing loss produces hearing impairment levels no worse than XI in his right ear and II in his left ear. CONCLUSION OF LAW The criteria for an increased disability rating in excess of 10 percent for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. Part 4, including §§ 4.1, 4.2, 4.7, 4.10, 4.85, 4.86, Diagnostic Code 6100, Tables VI, VIa, and VII (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from October 1968 to February 1990. In February 2015 he sought service connection for bilateral hearing loss. In a September 2015 rating decision, a Department of Veterans Affairs (VA) Regional Office (RO) granted service connection, effective February 13, 2015, for bilateral hearing loss. The RO assigned a disability rating of 10 percent. The RO appealed to the Board of Veterans’ Appeals, seeking a higher rating. In January 2020 the Veteran had a Travel Board hearing before the undersigned Veterans Law Judge. In March 2020 the Board remanded the hearing loss rating issue to the RO for additional action. Disability rating for bilateral hearing loss The Veteran appealed the initial 10 percent rating that the RO assigned for his hearing loss. VA assigns disability ratings by evaluating the extent to which a veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the VA Schedule for Rating Disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4, including §§ 4.1, 4.2, 4.10. In determining the current level of impairment, the disability must be considered in the context of the whole recorded history, including service medical records. 38 C.F.R. § 4.2. If two disability ratings are potentially applicable, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The United States Court of Appeals for Veterans Claims (Court) has held that, at the time of the assignment of an initial rating for a disability following an initial award of service connection for that disability, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as staged ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999). The Court also has held that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the claim for an increased rating was filed until a final decision is made. See Hart. v. Mansfield, 21 Vet. App. 505 (2007). The Court has indicated that the Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a claim, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Under the rating schedule, hearing impairment is evaluated based on audiological testing, including a puretone audiometry test and the Maryland CNC controlled speech discrimination test. 38 C.F.R. § 4.85. The puretone threshold average is the average of the puretone thresholds, in decibels, at 1000, 2000, 3000, and 4000 Hertz, shown on a puretone audiometry test. 38 C.F.R. § 4.85. To find the appropriate disability rating based on test results, the puretone threshold average for each ear is considered in combination with the percentage of speech discrimination to establish a hearing impairment level, labeled from I to XI. See 38 C.F.R. § 4.85, Table VI. The hearing impairment levels of both ears are then considered together to establish a disability rating for the hearing loss. See 38 C.F.R. § 4.85, Table VII. Regulations at 38 C.F.R. § 4.86 provide for exceptional patterns of hearing impairment. When the puretone 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 will be evaluated separately. 38 C.F.R. § 4.86(a). 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 will be evaluated separately. 38 C.F.R. § 4.86(b). Tables VI, Via, and VII are reproduced below. TABLE VI NUMERIC DESIGNATION OF HEARING IMPAIRMENT BASED ON PURETONE THRESHOLD AVERAGE AND SPEECH DISCRIMATION Puretone Threshold Average % of discrimination 0-41 42-49 50-57 58-65 66-73 74-81 82-89 90-97 98+ 92-100 I I I II II II III III IV 84-90 II II II III III III IV IV IV 76-82 III III IV IV IV V V V V 68-74 IV IV V V VI VI VII VII VII 60-66 V V VI VI VII VII VIII VIII VIII 52-58 VI VI VII VII VIII VIII VIII VIII IX 44-50 VII VII VIII VIII VIII IX IX IX X 36-42 VIII VIII VIII IX IX IX X X X 0-34 IX X XI XI XI XI XI XI XI   TABLE VIa NUMERIC DESIGNATION OF HEARING IMPAIRMENT BASED ONLY ON PURETONE THRESHOLD AVERAGE Puretone Threshold Average 0-41 42-48 49-55 56-62 63-69 70-76 77-83 84-90 91-97 98-104 105+ I II III IV V VI VII VIII IX X XI Continued on next page   TABLE VII PERCENTAGE EVALUATION FOR HEARING IMPAIRMENT (DIAGNOSTIC CODE 6100) Better ear XI 100* X 90 80 IX 80 70 60 VIII 70 60 50 50 VII 60 60 50 40 40 VI 50 50 40 40 30 30 V 40 40 40 30 30 20 20 IV 30 30 30 20 20 20 10 10 III 20 20 20 20 20 10 10 10 0 II 10 10 10 10 10 10 10 0 0 0 I 10 10 0 0 0 0 0 0 0 0 0 XI X IX VIII VII VI V IV III II I Poorer ear *Review for entitlement to special monthly compensation under § 3.350 of this chapter. On VA audiological evaluation in September 2015, puretone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 15 70 85 105+ LEFT 20 40 55 55 The puretone threshold averages were 69 decibels in the right ear and 43 decibels in the left ear. Speech recognition scores were 36 percent in the right ear and 92 percent in the left ear. Under Table VI, the hearing impairment level in the right was IX under Table VI. Under Table VIa, it was V. Raising the number in accordance with 38 C.F.R. § 4.86(b), the hearing impairment level was X. In the left ear the hearing impairment level was I. The test results were consistent with a 10 percent rating for the bilateral hearing loss. On VA audiological evaluation in February 2018, puretone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 80 70 90 90 LEFT 30 50 60 60 The puretone threshold averages were 83 decibels in the right ear and 50 decibels in the left ear. Speech recognition scores were 0 percent in the right ear and 100 percent in the left ear. In the right ear, the hearing impairment level was XI under Table VI and II under Table VIa, so the level was XI. In the left ear the hearing impairment level was I. The test results were consistent with a 10 percent rating for the bilateral hearing loss. In the January 2020 Board hearing, the Veteran reported that his difficulty hearing had increased since the February 2018 examination. He stated that his family members had to shout for him to hear. In March 2020, the Board remanded the case for a new examination. On VA audiological evaluation in July 2020, puretone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 85 85 100 105+ LEFT 35 60 70 70 The puretone threshold averages were 94 decibels in the right ear and 59 decibels in the left ear. Speech recognition scores were 16 percent in the right ear and 98 percent in the left ear. In the right ear the hearing impairment level was XI under Table VI and XI under Table VIa, so the level was XI. In the left ear the hearing impairment level was II. The test results were consistent with a 10 percent rating for the bilateral hearing loss. The Veteran’s bilateral hearing loss has not been manifested by hearing impairment levels worse than XI in the right ear and II in the left ear. It has not met the criteria for a rating higher than 10 percent. The Board denies a rating higher than 10 percent. The VA examinations provided adequate descriptions of the functional effects of the Veteran's hearing loss. Martinak, 21 Vet. App. at 447. His hearing loss disability has manifested in difficulty hearing or understanding speech and has been evaluated under the applicable diagnostic code that has specifically contemplated the level of occupational impairment caused by hearing loss disabilities. The schedular rating criteria specifically provide for ratings based on all levels of hearing loss, including exceptional hearing patterns. Doucette v. Shulkin, 28 Vet. App. 366 (2017); Rossy v. Shulkin, 29 Vet. App. 142, 145 (2017). The claim for an increased rating is denied. K. PARAKKAL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. J. Kunz, 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.