Citation Nr: 21026194 Decision Date: 04/30/21 Archive Date: 04/30/21 DOCKET NO. 15-09 981 DATE: April 30, 2021 ORDER Entitlement to a compensable rating for sensorineural hearing loss of the left ear prior to November 8, 2019 is denied. Entitlement to a compensable rating for bilateral hearing loss from November 8, 2019 is denied. FINDINGS OF FACT 1. Prior to November 8, 2019, audiometric examination corresponds to a level I hearing loss for the non-service connected right ear and a level I hearing loss for the left ear. 2. From November 8, 2019, audiometric examination corresponds to a level I hearing loss for the right ear and a level I hearing loss for the left ear. CONCLUSIONS OF LAW 1. Prior to November 8, 2019, the criteria for an evaluation in excess of a noncompensable rating for a sensorineural hearing loss of the left ear disability have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.85, Diagnostic Code 6100. 2. From November 8, 2019, the criteria for an evaluation in excess of a noncompensable rating for a bilateral hearing loss disability have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.85, Diagnostic Code 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1972 to June 1975; and from February 2004 to February 2009. Prior to the December 2018 Board of Veterans Appeals (Board) decision, the Veteran was service-connected with a noncompensable rating for a hearing loss disability of the left ear. Additionally, although the Veteran demonstrated diminished hearing acuity in the right ear, which the December 2011 VA examiner opined was at least as likely as not caused by or the result of noise exposure in active service, the severity of hearing loss in his right ear was not shown to reach the level required to qualify as a disability by VA regulation. 38 C.F.R. § 3.385; see also November 2008 Line of Duty Determination, and December 2011 VA audiological evaluation. The issues currently before the Board were previously remanded in the December 2018 Board decision. After that decision, the Agency of Original Jurisdiction (AOJ) granted service connection for sensorineural hearing loss of the right ear in an August 2020 ratings decision. The AOJ merged sensorineural hearing loss of the right ear with sensorineural hearing loss of the left ear and called the new claim “bilateral hearing loss.” The AOJ noted that sensorineural hearing loss of the right ear was granted effective November 8, 2019. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), found in 38 C.F.R., Part 4. The ratings are intended to compensate impairment in earning capacity due to a service-connected disease or injury. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. In general, to evaluate the degree of disability from defective hearing, the Rating Schedule establishes eleven auditory acuity levels from Level I for essentially normal acuity through Level XI for profound deafness. 38 C.F.R. §§ 4.85, 4.87, Tables VI, VIa, VII. Organic impairment of hearing acuity is measured by the results of controlled speech discrimination tests together with the average hearing threshold level as measured by a pure tone audiometry test in the frequencies of 1,000, 2,000, 3,000, and 4,000 cycles per second. See 38 C.F.R. § 4.85(a), (d). Ratings of hearing loss disability involve mechanical application of the rating criteria to the findings on official audiometry. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). Exceptional patterns of hearing impairment are rated under 38 C.F.R. § 4.86. Specifically, an exceptional pattern of hearing loss is hearing loss of 55 decibels or more in each of the four specified frequencies (i.e. 1000, 2000, 3000, and 4000 Hertz), and hearing loss with a pure tone threshold of 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz. 38 C.F.R. § 4.86(a), (b). Staged ratings are appropriate 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); see also Fenderson v. West, 12 Vet. App. 119 (1999). 1. Entitlement to a compensable rating for sensorineural hearing loss of the left ear prior to November 8, 2019 At a December 2011 VA examination, pure tone thresholds, in decibels, and Maryland CNC speech discrimination results were as follows: HERTZ CNC 1000 2000 3000 4000 Avg RIGHT 15 15 30 35 24 100 LEFT 10 15 40 50 29 100 There is not an exceptional pattern of hearing loss in either ear. The Board notes that under 38 C.F.R. § 4.85(f), the Veteran’s non-service connected right ear is assigned a Roman Numeral designation for hearing impairment of I. Applying 38 C.F.R. § 4.85, Table VI to the above audiological findings, the Veteran has a numeric designation of I for his right ear and I for his left ear. Application of 38 C.F.R. § 4.85, Table VII, results in a noncompensable evaluation. The preponderance of the evidence is against an evaluation in excess of a noncompensable evaluation for sensorineural hearing loss of the left ear prior to November 8, 2019. The evidence of record does not more nearly reflect the criteria for a higher evaluation. 38 C.F.R. § 4.7. To the extent that the Veteran reports that his hearing acuity is worse than evaluated during this period, the Board has considered his statements. This evidence is competent. However, far more probative of the degree of the disability are the results of testing prepared by a skilled professional since the schedular criteria are predicated on audiological findings rather than subjective reports of severity of hearing loss. In essence, lay statements are of limited probative value. As a layperson, the Veteran is competent to report difficulty with his hearing; however, he is not competent to assign particular speech recognition scores or puretone decibel reading to his current acuity problems. As indicated above, ratings of hearing loss disability involve mechanical application of the rating criteria to the findings on official audiometry. See Lendenmann, supra. In reaching this finding, the Board notes the objective medical findings of the November 8, 2019 VA audiological evaluation as detailed below. The Board notes that from a practical standpoint it is highly unlikely that the Veteran’s hearing loss in his right ear increased in severity on the specific day of the November 2019 evaluation in order for hearing loss in the right ear to reach the level required to qualify as a disability by VA regulation. However, there is no objective evidence of hearing impairment in the right ear permitting service connection for the period prior to November 8, 2019 that would allow it to reach the level required to qualify as a disability by VA regulation. The preponderance of the evidence is against a compensable evaluation for a sensorineural hearing loss of the left ear disability. The evidence of record does not more nearly reflect the criteria for a higher evaluation. 38 C.F.R. § 4.7. The claim must be denied. 2. Entitlement to a noncompensable rating for bilateral hearing loss from November 8, 2019 At a November 2019 VA examination, pure tone thresholds, in decibels, and Maryland CNC speech discrimination results were as follows: HERTZ CNC 1000 2000 3000 4000 Avg RIGHT 15 25 40 45 31 96 LEFT 15 25 45 50 34 92 There is not an exceptional pattern of hearing loss in either ear. Applying 38 C.F.R. § 4.85, Table VI to the above audiological findings, the Veteran has a numeric designation of I for his right ear and I for his left ear. Application of 38 C.F.R. § 4.85, Table VII, results in a noncompensable evaluation. The preponderance of the evidence is against an evaluation in excess of a noncompensable evaluation for bilateral hearing loss from November 8, 2019. The evidence of record does not more nearly reflect the criteria for a higher evaluation. 38 C.F.R. § 4.7. To the extent that the Veteran reports that his hearing acuity is worse than evaluated during this period, the Board has again considered his statements and they are competent. However, far more probative of the degree of the disability are the results of testing prepared by a skilled professional since the schedular criteria are predicated on audiological findings rather than subjective reports of severity of hearing loss. See Lendenmann, supra. The preponderance of the evidence is against a compensable evaluation for a bilateral hearing loss disability. The evidence of record does not more nearly reflect the criteria for a higher evaluation. 38 C.F.R. § 4.7. The claim must be denied. N. RIPPEL Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Jonah Nelson, Associate 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.