Citation Nr: 21027117 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 16-35 247 DATE: May 4, 2021 ORDER Entitlement to a compensable rating for left ear hearing loss prior to October 1, 2019, and for bilateral hearing loss on and after that date is denied. FINDINGS OF FACT 1. Throughout the appeal, the Veteran's left ear hearing has been manifested by hearing acuity impairment of no worse than Level I. 2. Prior to October 1, 2019, the Veteran's right ear hearing impairment was not a disability for VA purposes. 3. On and after October 1, 2019, the Veteran's right ear hearing has been manifested by hearing acuity impairment of no worse than Level I. CONCLUSIONS OF LAW 1. Prior to October 1, 2019, the criteria for a compensable rating for left ear hearing loss are not met. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 3.383, 3.385, 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100 (2020). 2. On and after October 1, 2019, the criteria for a compensable rating for bilateral ear hearing loss are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Navy from December 1971 to December 1991. This case comes before the Board of Veterans' Appeals (Board) on an appeal from a May 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office. The Veteran's claim for increased rating for his left ear hearing loss has come before the Board before. In March 2019, the Board remanded the claims for service connection for right ear hearing loss and for an increased rating for left ear hearing loss for a VA examination. While the claim was in remand status, the agency of original jurisdiction (AOJ) granted the Veteran's claim for service connection for right ear hearing loss, effective October 1, 2019. A July 2020 supplemental statement of the case was most recently issued denying an increase for the Veteran's hearing loss, and the claim is once again before the Board. As left ear hearing loss must be rated as part of bilateral hearing loss when both ears are service-connected, the Board has modified the issue on appeal as of the effective date of service connection for the right ear. Entitlement to a compensable rating for left ear hearing loss prior to October 1, 2019, and for bilateral hearing loss on and after that date. The Veteran seeks a compensable rating for his service-connected left ear hearing loss. He contends that he finds himself zoning out during moderate level conversations around the dinner table because he is unable to hear certain voices well and finds himself asking people to repeat themselves often. Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. All reasonable doubt will be resolved in the claimant's favor. 38 C.F.R. § 4.3. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise the lower rating is to be assigned. 38 C.F.R. § 4.7. Separate ratings can be assigned for separate periods based on the facts found a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. Ratings for hearing loss are determined in accordance with findings obtained on an audiometric examination. Hearing loss disability evaluations range from noncompensable (0 percent) to a maximum of 100 percent based on organic impairment of hearing acuity, as measured by controlled speech discrimination tests (Maryland CNC) in conjunction with the average hearing threshold, as measured by pure tone audiometric tests in the frequencies 1000, 2000, 3000, and 4000 cycles per second (Hertz). The rating schedule establishes eleven auditory acuity levels, designated from Level I for essentially normal hearing through Level XI for profound deafness. 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, 349 (1992). The criteria for rating hearing impairment use controlled speech discrimination tests (Maryland CNC) together with the results of pure tone audiometry tests. These results are then charted on Table VI, or Table VIA in exceptional cases as described in 38 C.F.R. § 4.86, and Table VII, as set out in the Rating Schedule. 38 C.F.R. § 4.85. An exceptional pattern of hearing loss occurs when the pure tone threshold at 1000, 2000, 3000, and 4000 Hertz is 55 decibels or more, or when the pure tone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz. 38 C.F.R. § 4.86. If there is an exceptional pattern of hearing loss, the Board must apply both Table VI and the alternate table, Table VIA, to determine which is more beneficial to the Veteran. 38 C.F.R. § 4.86 (a). If impaired hearing is service-connected for 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 provided that the Veteran does not have a hearing loss disability non-service-connected ear as provided under 38 C.F.R. § 3.385. 38 C.F.R. §§ 3.383(a)(3), 4.85(f). Prior to October 1, 2019, the Veteran underwent audiograms in April 2002, May 2015, and November 2016. At each evaluation, the Veteran did not have a single puretone threshold between 500 and 4,000Hz with a dB score in excess of 40, or at least three thresholds greater than 25 dB. His word recognitions scores were all 94 percent or greater. As a result, the Veteran's right ear hearing loss was not a disability for VA purposes prior to October 1, 2019. 38 C.F.R. § 3.385. For this period, the Board assigns a Roman Numeral I for the right ear. 38 C.F.R. § 4.85(f). The Veteran underwent an audiogram in April 2002. The pure tone thresholds in decibels at the tested frequencies of 1000, 2000, 3000, and 4000 Hertz were 15, 25, 25, and 20 respectively in the left ear. No exceptional pattern of hearing was shown, and the pure tone threshold average was 21.25 decibels in the left ear. However, there is no indication the examiner used Maryland CNC Word List for the speech discrimination test; therefore, this examination does not meet the criteria for an examination for hearing impairment for VA purposes. The Veteran underwent another VA audiology exam in May 2015. The pure tone thresholds in decibels at the tested frequencies of 1000, 2000, 3000, and 4000 Hertz were 30, 35 35, and 40 respectively in the left ear. No exceptional pattern of hearing loss was shown. The examiner noted that the pure tone threshold average in the left ear was 35. Speech discrimination, using the Maryland CNC, was 94 percent in the left ear. Pursuant to Table VI, the audiometry test results equate to a Level I in the left ear. Applying the percentage ratings for hearing impairment found in Table VII, Level I in one ear and Level I in the other results in a 0 percent rating. In November 2016, the Veteran had an audiology consult and underwent an audiogram. The pure tone thresholds in decibels at the tested frequencies of 1000, 2000, 3000, and 4000 were 25, 35, 40, and 50 respectively in the left ear. The pure tone threshold average in the left ear was 37.5, and there was no exceptional pattern of hearing loss shown. Speech discrimination was 96 percent in the left ear. Pursuant to Table VI, the audiometry test results equate to a Level I in the left ear. Applying the percentage rating for hearing impairment found in Table VII, Level I in one ear and Level I in the other results in a 0 percent rating. The Board finds the preponderance of the evidence demonstrates that the Veteran's hearing impairment was no worse that Roman Numeral I in both ears prior to October 1, 2019. The Board concludes that a compensable rating is not warranted for this period. 38 C.F.R. §§ 4.85, 4.86. As discussed above, in a July 2020 rating decision, the Veteran was granted service connection for bilateral hearing loss effective October 1, 2019. Accordingly, the Board will evaluate hearing loss as bilateral, rating the ears together, as of October 1, 2019. Finally, the Veteran underwent another VA audiology examination in October 2019. During this examination, the pure tone thresholds in decibels at the tested frequencies of 1000, 2000, 3000, and 4000 were 30, 35, 40 and 45 respectively in the left ear, and 20, 35, 30, 35 respectively in the right ear. The pure tone threshold average was 37.5 in the left ear, 30 in the right ear, and no exceptional pattern of hearing loss was shown. The Veteran's speech discrimination score was 92 percent in the left ear and 94 in the right ear. The audiometry test results equate to a Level I in the left ear, and Level I in the right ear, according to Table VI. Applying the percentage rating for hearing impairment found in Table VII, Level I in one ear and Level I in the other results in a 0 percent rating. The Board finds that the evidence of record is adequate for rating purposes. The Board has carefully considered the lay assertions as to the severity of his hearing loss, and in no way discounts his assertions regarding his difficulty hearing or that his left ear hearing loss should be rated higher. However, as stated above, the assignment of schedular disability ratings for hearing impairment is derived by mechanical application of the rating schedule to the numeric designation assigned after audiometry results are obtained. Therefore, the Board has no discretion in this matter and must predicate its determination on the basis of the results of the audiology studies of record. See Lendenmann, 3 Vet. App. at 349. Based on the foregoing, the Board finds the VA examination competent and more probative and that the preponderance of the evidence is against the claim for an increased rating in excess of 0 percent for his bilateral hearing loss for the period beginning October 1, 2019. Therefore, the claim is denied. In reaching such determination, the Board has considered the benefit of the doubt doctrine; however, as the preponderance of the evidence is against the Veteran's claim, such doctrine is not applicable, and it must be denied. See 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. J. B. FREEMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Doerfler, 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.