Citation Nr: 21027907 Decision Date: 05/07/21 Archive Date: 05/07/21 DOCKET NO. 19-29 449 DATE: May 7, 2021 ORDER Entitlement to a compensable rating for bilateral hearing loss (BHL) is denied. FINDING OF FACT Audiometric examination corresponds to no greater than Level III hearing loss in the right ear and Level II hearing loss in the left ear. CONCLUSION OF LAW The criteria for a compensable disability rating for BHL have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.85, Diagnostic Code 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1955 to March 1958. The Veteran appealed a September 2018 rating decision by the Agency of Original Jurisdiction (AOJ). In June 2020, the Board of Veterans' Appeals (Board) remanded the Veteran's claim to the AOJ for further action consistent with the Board's remand directives. The claim is back before the Board for further appellate proceedings. The Board finds there has been substantial compliance with its remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). When, as here, a Veteran seeks an increased evaluation, it will generally be presumed that the maximum benefit allowed by law and regulation is sought, and it follows that such a claim remains in controversy where less than the maximum benefit available is awarded. See AB v. Brown, 6 Vet. App. 35, 38 (1993). Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the 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. Where the question to consider is the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection and consideration of the appropriateness of a "staged" rating are required. See Fenderson v. West, 12 Vet. App. 199, 125-26 (1999). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial rating case or not. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Evaluations for defective hearing are based upon organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests, along with the average hearing threshold level as measured by pure tone audiometric tests in the frequencies of 1000, 2000, 3000, and 4000 Hertz. 38 C.F.R. § 4.85, Tables VI, VIA, VII. To evaluate the degree of disability for service-connected bilateral hearing loss, the rating schedule establishes eleven auditory acuity levels, designated from Level I for essentially normal acuity, through Level XI for profound deafness. Table VI is used to determine the Roman numeric designation, based on test results consisting of pure tone thresholds and Maryland CNC test speech discrimination scores. The numeric designations are then applied to Table VII to determine the appropriate rating for hearing impairment. Id. Ratings for hearing impairment are 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). On the authorized audiological evaluation in January 2017, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 30 35 55 60 65 LEFT 25 25 35 55 65 The average of the pure tone thresholds findings at 1000, 2000, 3000, and 4000 Hertz was 54 in the right ear and 45 in the left ear. The speech recognition scores on the Maryland CNC word list were 92 percent for the right ear and 96 percent for the left ear. Applying the test results of the January 2017 VA examination report to Table VI of the Rating Schedule results in a Roman numeric designation of Level I in both ears. 38 C.F.R. § 4.85, Table VI. Applying the Roman numeric designations to Table VII, the result is a noncompensable rating for the Veteran's service-connected BHL. On the authorized audiological evaluation in March 2021, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 30 50 60 60 65 LEFT 30 45 50 60 60 The average of the pure tone thresholds findings at 1000, 2000, 3000, and 4000 Hertz was 59 decibels in the right ear and 54 decibels in the left ear. The speech recognition scores on the Maryland CNC word list were 88 percent in both ears. Applying the test results of the March 2021 VA examination report to Table VI of the Rating Schedule results in a Roman numeric designation of Level III in the right ear and Level II in the left ear. 38 C.F.R. § 4.85, Table VI. Applying the Roman numeric designations to Table VII, the result is a noncompensable rating for the Veteran's service-connected BHL. The Board finds that the VA examinations are adequate for rating purposes. Apart from these two VA examinations, there are no other adequate audiometric testing results for the remainder of the appeal period which comply with the requirements of 38 C.F.R. § 4.85 for rating purposes. Overall, the Veteran contends he warrants a higher rating and that he has hearing aids. However, based on the adequate audiological assessments of record and mechanical application of the rating criteria, a higher rating is not warranted. (Continued on the next page) Accordingly, the evidence of record does not support a compensable disability rating for BHL and the appeal is denied. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). DONNIE R. HACHEY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Zheng, 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.