Citation Nr: 21029647 Decision Date: 05/14/21 Archive Date: 05/14/21 DOCKET NO. 18-10 600 DATE: May 14, 2021 ORDER Entitlement to an initial compensable rating for bilateral hearing loss is denied. The claim of entitlement to a total disability rating based on individual unemployability (TDIU) is dismissed. FINDINGS OF FACT 1. Throughout the appeal period, the Veteran's bilateral hearing loss has been manifested by, at worst, Level II hearing acuity in both the right and left ears. 2. Prior to promulgation of a decision in the appeal, in September 2020 correspondence, the Veteran withdrew his appeal concerning the issue of entitlement to a TDIU. CONCLUSIONS OF LAW 1. The criteria for entitlement to a compensable rating for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.3, 4.7, 4.85, 4.86, Diagnostic Code (DC) 6100. 2. The criteria for withdrawal of the claim of entitlement to a TDIU have been met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. §§ 20.202, 20.204. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably on active duty from October 1971 to April 1972, and from July 1972 to June 1977. These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2016 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). A Travel Board hearing was held on February 6, 2020 before the undersigned Veterans Law Judge. A transcript of this hearing has been associated with the claims file. The Board notes that these matters were previously before the Board in March 2020, at which time they were remanded to the Agency of Original Jurisdiction (AOJ) for further evidentiary development. The Board finds that there has been substantial compliance with the March 2020 remand directives, and as such, will proceed with appellate review. 1. Entitlement to a compensable rating for bilateral hearing loss is denied. The Veteran contends that he should be awarded an initial compensable rating for his service-connected bilateral hearing loss from February 19, 2016, the effective date for the grant of service connection. Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained 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 the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Ratings of hearing loss range from non-compensable to 100 percent based on organic impairment of hearing acuity as measured by the results of speech discrimination tests combined with the average hearing threshold levels as measured by pure tone audiometry tests in the frequencies 1000, 2000, 3000, and 4000 cycles per second. To rate the degree of disability for service-connected hearing loss, the Rating Schedule has established 11 auditory acuity levels, designated from Level I, for essentially normal acuity, through Level XI, for profound deafness. 38 C.F.R. § 4.85(h), Table VI. In order to establish entitlement to a rating for hearing loss, it must be shown that certain minimum levels of the combination of the percentage of speech discrimination loss and average pure tone decibel loss are met. 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, 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. Applying the rating criteria to the facts of this case, the Board finds that the criteria for an initial compensable rating have not been met. The evidence establishes that throughout the appeal period, the Veteran's service-connected bilateral hearing loss was manifested by Level II hearing acuity in both the right and left ears, at its worst. Turning to the evidence of record, the Veteran was first afforded a VA examination July 2016. The Veteran's pure tone thresholds for the right ear were 25, 25, 40, and 40 decibels at 1000, 2000, 3000, and 4000 Hertz, respectively. This averages to 33. Pure tone thresholds for the left ear were 20, 25, 45, and 40 decibels at 1000, 2000, 3000, and 4000 Hertz, respectively. This also averages to 33. Speech discrimination scores, using the Maryland CNC word list, were 90 percent for the right ear and 86 percent for the left ear. These audiological findings show Level II hearing acuity in the right ear, as well as Level II hearing acuity in the left ear under Table VI. Applying the percentage ratings for hearing impairment found in Table VII, the July 2016 VA audiogram results correspond to a 0 percent, or non-compensable, disability rating. See 38 C.F.R. § 4.85. The Veteran was afforded a second VA examination April 2017. The Veteran's pure tone thresholds during this examination for the right ear were 30, 35, 40, and 40 decibels at 1000, 2000, 3000, and 4000 Hertz, respectively. This averages to 36. Pure tone thresholds for the left ear were 30, 30, 45, and 40 decibels at 1000, 2000, 3000, and 4000 Hertz, respectively. This also averages to 36. Speech discrimination scores, using the Maryland CNC word list, were 92 percent for both the right and left ear. These audiological findings show Level I hearing acuity in both the right and left ears under Table VI. Applying the percentage ratings for hearing impairment found in Table VII, the April 2017 VA audiogram results correspond to a 0 percent, or non-compensable, disability rating. See 38 C.F.R. § 4.85. Most recently, the Veteran was afforded a VA examination in August 2020, after he testified at the February 2020 Travel Board hearing that his bilateral hearing loss had worsened. During this examination, the Veteran's pure tone thresholds for the right ear were 25, 30, 40, and 30 decibels at 1000, 2000, 3000, and 4000 Hertz, respectively. This averages to 31. Pure tone thresholds for the left ear were 30, 30, 40, and 30 decibels at 1000, 2000, 3000, and 4000 Hertz, respectively. This averages to 33. Speech discrimination scores, again using the Maryland CNC word list, were 96 percent for the right and left ears. These audiological findings continue to show Level I hearing acuity in both the right and left ears under Table VI. Applying the percentage ratings for hearing impairment found in Table VII, the August 2020 VA audiogram results again correspond to a non-compensable disability rating. 38 C.F.R. § 4.85. The Board has considered the Veteran's symptomology and functional impact. The Veteran's complaints of increased hearing difficulty have been considered under the numerical criteria set forth in the rating schedule, which take into consideration such impacts. In short, the rating criteria reasonably describe the Veteran's disability levels and symptomatology. The Board in no way discounts the difficulties that the Veteran experiences because of his hearing loss. However, it must be emphasized, as previously noted, that the disability ratings for hearing impairment are derived by a mechanical application of the rating schedule to numeric designation assigned after audiometry results are obtained. The hearing loss must become more severe before it is considered a compensable disability for VA purposes. The Board must base its determination on the results of the pertinent audiological evaluations of record. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). In other words, the Board is bound by law to apply VA's rating schedule based on the Veteran's audiometry results. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Under these circumstances, the Board finds that the record has presented no basis for the initial assignment of a compensable disability rating for the Veteran's service-connected bilateral hearing loss. Accordingly, the claim is denied. Absent a relative balance of the evidence for and against the claim, the evidence is not in equipoise and the benefit-of-the-doubt doctrine does not apply. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). (CONTINUED ON NEXT PAGE) 2. The claim of entitlement to a TDIU is dismissed. Under 38 U.S.C. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. A substantive appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. § 20.202. Withdrawal may be made by the Veteran or by his or her authorized representative. 38 C.F.R. § 20.204. In September 2020 correspondence, the Veteran indicated that he requested "that the unemployability appeal be removed because I never said I was not able to work." The Veteran's statement referenced withdrawal of his claim for entitlement to a TDIU that was pending before the Board. Hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal and it is dismissed. Bethany L. Buck Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. M. Lowman, 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.