Citation Nr: 21025745 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 16-28 204 DATE: April 28, 2021 ORDER Entitlement to a compensable rating for the bilateral hearing loss is denied. FINDING OF FACT Audiometric findings revealed no worse than Level III hearing in each ear for the entire appeal period. CONCLUSION OF LAW The criteria for a compensable rating for bilateral hearing loss for the entire appeal period have not been met. 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the Navy from July 1965 to October 1967. The Veteran’s bilateral hearing loss disability was initially granted with a noncompensable effective June 30, 2014 under Diagnostic Code 6100. 38 C.F.R. § 4.85. Since the Veteran filed a claim for an increased evaluation for his service-connected bilateral hearing loss in September 2015 and he reported that his hearing loss became worse at that time, the Board looks to the evidence to evaluate the current severity of his hearing loss since September 2015. A VA examination was scheduled for October 2018, but it was noted that the Veteran failed to report to the examination. However, in a November 2018 report of contact, the Veteran explained that he only received notification of the examination after it was to occur. He stated that he would attend a rescheduled examination. Nothing further transpired regarding this aspect of the claim. The Board remanded the claim in April 2019 to make another attempt to schedule the Veteran for a VA examination to assess the severity of his service-connected bilateral hearing loss. The Veteran attended examination in November 2019. The matter has now returned to the Board for review. Entitlement to a compensable rating for bilateral hearing loss Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2016). The percentage ratings in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1 (2016). In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of a veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where the appellant has expressed dissatisfaction with the assignment of an initial rating 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 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2007). Ratings for hearing loss are determined in accordance with findings obtained on audiometric evaluation. Ratings for hearing impairment range from 0 percent to 100 percent based on organic impairment of hearing acuity, as measured by the results of the controlled speech discrimination tests, 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. To evaluate the degree of disability from hearing impairment, the rating schedule establishes eleven auditory acuity levels designated from Level I for essentially normal acuity through Level XI for profound deafness. Diagnostic Code 6100. Hearing tests are to be conducted without hearing aids, and the results of the testing are applied to Table VI and Table VII. 38 C.F.R. § 4.85. When the puretone threshold at each of the four specified frequencies of 1000, 2000, 3000, and 4000 Hertz is 55 decibels (dB) 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). In the present case, the Veteran is requesting a higher rating for his already established service-connected bilateral hearing loss. The present disability level is the primary concern and past medical reports do not take precedence over current findings. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, "staged" ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). There is, however, no evidence here than an exceptional drumming of hearing loss has been shown, so § 4.86(a) and (b) does not apply. March 2016 VA examination findings showed the Veteran’s left ear with 96 percent discrimination. Decibel loss at the puretone threshold of at 1000 Hertz (Hz) was 10, at 2000 Hz was 30, at 3000Hz was 60, and at 4000 Hz was 80. The average decibel loss was 45 in the left ear. The right ear also showed a speech discrimination of 96 percent. The Veteran’s right ear Decibel loss at the puretone threshold of at 1000 Hz was 10, at 2000 Hz was 30, at 3000 Hz was 80, and at 4000 Hz was 75. The average decibel loss was 49 in the right ear. The examiner reported sensorineural hearing loss (in the frequency range of 500-4000 Hz) and remarked that the Veteran would likely benefit from amplification as well as assistive devices. The examiner suggested that the hearing loss experienced would not prevent gainful employment for the Veteran. November 2019 VA examination findings showed the Veteran’s left ear with 84 percent discrimination. Decibel loss at the puretone threshold at 1000 Hz was 40, at 2000 Hz was 45, at 3000 Hz was 70, and at 4000 Hz was 80. The average decibel loss was 59 in the left ear. The right ear showed a speech discrimination of 88 percent. The Veteran’s right ear Decibel loss at the puretone threshold at 1000 Hz was 35, at 2000 Hz was 50, at 3000 Hz was 85, and at 4000 Hz was 80. The average decibel loss was 63 in the right ear. The examiner reported sensorineural hearing loss (in the frequency range of 500-4000 Hz). Applying the 2016 audiological results to Table VI yields Roman numeral designation I for each ear, while the 2019 results yield Level III hearing loss in each ear. See 38 C.F.R. § 4.85. While these results do demonstrate a worsening of the Veteran’s hearing over time, applying either results to Table VII correlates to a noncompensable rating. Id. In VA audiology examinations, the audiologist must describe the functional effects caused by a hearing loss disability in the final report. See Martinak v. Nicholson, 21 Vet. App. 447, 455-456 (2007). In this regard, the Veteran stated that he has trouble understanding conversation in all listening situations. Furthermore, in a 2016 lay statement, the Veteran’s wife stated that the Veteran watches television very loud, a situation that has been going on for several years and getting worse. These complaints are symptoms of hearing loss and contemplated by the schedular criteria. Therefore, they do not provide a basis for any rating higher than what is assigned based on application of 38 C.F.R. § 4.85. The Board recognizes the Veteran's reports of his symptoms, and the difficulties he experiences as a result of his hearing loss. However, the Rating Schedule requires specific diagnostic testing in order to assign a rating under DC 6100. As a layman, the Veteran is not competent to opine on the severity of his bilateral hearing loss in relation to the criteria of the Rating Schedule which as mentioned, instead, required objective testing of his hearing acuity in certain, specific frequencies, and on speech discrimination. Accordingly, the preponderance of the evidence is against his claim, so the benefit of the doubt rule is inapplicable. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Omosegbon, Babalakin O. 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.