Citation Nr: 21023673 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 17-38 307 DATE: April 21, 2021 ORDER Entitlement to an initial compensable rating for a left ear hearing loss disability is denied. FINDING OF FACT Audiometric testing revealed no greater than a level V left ear hearing loss. Service connection is in effect for only the left ear hearing loss. CONCLUSION OF LAW The criteria for entitlement to an initial compensable rating for a left ear hearing loss disability have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Army from March 1968 to February 1970. The Veteran appeals the denial of an initial compensable rating for his left ear hearing loss disability. Disability evaluations are determined 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 Schedule for Rating Disabilities (rating schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. 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 Fenderson v. West, 12 Vet. App. 119 (1999), the United States Court of Appeals for Veterans Claims (Court) held that evidence to be considered in the appeal concerning an initial assignment of a disability rating was not limited to that reflecting the then current severity of the disorder. The Court also discussed the concept of the ‘staging’ of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. Id. at 126-127; see also Hart v. Mansfield, 21 Vet. App. 505 (2007). 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. Lendenmann v. Principi, 3 Vet. App. 345 (1992). The severity of a hearing loss disability is determined by applying the criteria set forth at 38 C.F.R. § 4.85. Under these criteria, evaluations of bilateral 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 the average pure tone hearing threshold level, as measured by pure tone audiometry tests in the frequencies 1,000, 2,000, 3,000, and 4,000 Hertz, or cycles per second, divided by four. This average is used in all cases to determine the Roman numeral designation for hearing impairment from Table VI or VIa. 38 C.F.R. § 4.85(a), (d). Table VI, “Numeric Designation of Hearing Impairment Based on Pure tone Threshold Average and Speech Discrimination,” is used to determine a Roman numeral designation (I through XI) for hearing impairment based on a combination of the percent of speech discrimination (horizontal rows) and the pure tone threshold average (vertical columns). The Roman numeral designation is located at the point where the percentage of speech discrimination and pure tone threshold average intersect. 38 C.F.R. § 4.85(b). Table VII, “Percentage Evaluations for Hearing Impairment,” is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment of each ear. The horizontal rows represent the ear having the better hearing, while the vertical columns represent the ear having the poorer hearing. The percentage evaluation is located at the point where the row and column intersect. 38 C.F.R. § 4.85(e). In addition, 38 C.F.R. § 4.86 applies to exceptional patterns of hearing impairment. Under its provisions, 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 will be evaluated separately. When the pure tone 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 numeral. 38 C.F.R. § 4.86. If 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 Roman Numeral designation for hearing impairment of I. See 38 C.F.R. § 4.85(f). The law allows for compensation for hearing loss as if both ears were service-connected if the service-connected hearing loss is ratable as at least 10 percent disabling and the non service-connected hearing loss meets the standard for a hearing loss disability for VA purposes under 38 C.F.R. § 3.385 unless the non service-connected hearing loss is the result of the Veteran’s willful misconduct. See 38 C.F.R. § 3.383. Here, the Board notes that service connection is only in effect for a left ear hearing loss disability. The August 2016 VA audiological evaluation revealed the Veteran had a left ear average pure tone loss of 59 decibels with speech recognition of 88 percent. These findings are consistent with Level III hearing in the left ear. Because right ear hearing loss is not service-connected, a Level I hearing loss is assigned. 38 C.F.R. § 4.85(f). The left ear is considered the poorer ear and is the only service connected ear. Applying the Roman numeric designations of I and III to Table VII, the result is a noncompensable rating for the Veteran’s hearing loss in the left ear. 38 C.F.R. § 4.85, Table VII, Diagnostic Code 6100. The record shows that the Veteran was examined by a private examiner in June 2017. The audiological evaluation revealed an average left ear pure tone decibel loss of 60 (40 dbs at 1000 Hz, 65 dbs at 2000 Hz, 70 dbs at 3000 Hz and 65 dbs at 4000 Hz) with speech recognition of 100 percent using the Maryland CNC. These findings are consistent with Level II hearing in the left ear. Because right ear hearing loss is not service-connected, a Level I hearing loss is assigned. 38 C.F.R. § 4.85(f). The left ear is considered the poorer ear and is the only service-connected ear. Applying the Roman numeric designations of I and II to Table VII, the result is a noncompensable rating for the Veteran’s hearing loss in the left ear. 38 C.F.R. § 4.85, Table VII, Diagnostic Code 6100. The November 2020 VA audiological evaluation revealed the Veteran had a left ear average pure tone loss of 60 decibels with speech recognition of 72 percent. These findings are consistent with Level V hearing in the left ear. Because right ear hearing loss is not service connected, a Level I hearing loss is assigned. 38 C.F.R. § 4.85(f). The left ear is considered the poorer ear and is the only service connected ear. Applying the Roman numeric designations of I and V to Table VII, the result is a noncompensable rating for the Veteran’s hearing loss in the left ear. 38 C.F.R. § 4.85, Table VII, Diagnostic Code 6100. As shown above, the VA and private audiometric examinations support a noncompensable rating for left hearing loss and no more during this period of time. Furthermore, during this time the Veteran did not have an exceptional pattern of hearing as defined by 38 C.F.R. § 4.86 given that the results of audiology testing did not show puretone thresholds at all four of the specific frequencies of 55 decibels or more. The results also fail to show that the pure tone threshold were 30 decibels or less at 1,000 Hertz, and 70 decibels or more at 2,000 Hertz in the left ear. Accordingly, a compensable evaluation for left ear hearing loss is not warranted. The Board also notes that the VA examinations included discussion of the Veteran’s reported functional impacts which include social problems, avodiance of conversations and the inability to hear conversations. Martinak v. Nicholson, 21 Vet. App. 447 (2007). With regard to functional impairment, including the Veteran’s reports of difficulty hearing conversations, his speech discrimination abilities were specifically measured by VA audiological examinations and this functional impairment has thus been taken into account as part of the currently assigned evaluation. Martinak, 21 Vet. App. 455. Specifically, such criteria contemplate the difficulty the Veteran had hearing in all situations, even in background noise. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (holding that the rating criteria for hearing loss contemplate the functional effects of difficulty hearing and understanding speech). The Veteran’s assertions that he generally manifests decreased hearing acuity are credible. In determining the actual degree of disability, however, the examination findings are more probative of the degree of impairment. As stated above, the Court has noted that the assignment of disability ratings for hearing impairment is derived at by a mechanical application of the numeric designations assigned after audiometric evaluations are rendered. Lendenmann. In this case, the numeric designations warrant no more than a 0 percent evaluation. 38 C.F.R. §§ 4.85 and 4.86, Diagnostic Code 6100. Accordingly, the rating assigned for the Veteran’s left ear hearing loss disability accurately reflects the degree of his service- connected hearing impairment. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.85, Diagnostic Code 6100. (continued on the next page) The claim is denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable in the instant appeal. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1991). T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T.S. Willie 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.