Citation Nr: 21039741 Decision Date: 07/01/21 Archive Date: 07/01/21 DOCKET NO. 20-08 508A DATE: July 1, 2021 ORDER An initial compensable disability rating for the service-connected bilateral hearing loss disability is denied. FINDING OF FACT During the entire period on appeal, the Veteran's service-connected bilateral hearing loss disability has been manifested by no worse than Level III hearing acuity in the right ear and no worse than Level II hearing acuity in the left ear. CONCLUSION OF LAW The criteria for an initial compensable disability rating for the service-connected bilateral hearing loss disability have not been met. U.S.C. §§ 1155, 5103, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.7, 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1964 to November 1966. This case is before the Board of Veterans' Appeals (Board) on appeal from a January 2017 Department of Veterans Affairs (VA) Regional Office (RO) rating decision. In that decision, the RO granted service connection for a bilateral hearing loss disability and assigned an initial noncompensable disability rating, effective from August 22, 2016 and granted service connection for tinnitus and assigned an initial disability rating of 10 percent, effective from August 22, 2016. In January 2017, VA received the Veteran's Notice of Disagreement (NOD). In November 2017, the RO issued a Statement of the Case (SOC); however, this SOC did not address the issue of an increased rating for the service-connected bilateral hearing loss disability. In November 2017, VA received the Veteran's VA Form 9 appeal to the Board. In January 2019 the Board remanded the issue of an increased rating for the service-connected bilateral hearing loss for further development and adjudicative action. In pertinent part, the Board required the RO to issue a SOC addressing the issue. Furthermore, the Board denied assignment of an initial disability rating in excess of 10 percent for the service-connected tinnitus and the Veteran did not appeal the decision. In March 2020, the RO issued a SOC for the issue of increased rating for the service-connected bilateral hearing loss disability. In March 2020, VA received the Veteran's VA Form 9 appeal to the Board. In the VA Form 9, the Veteran requested a hearing before a Veterans Law Judge (VLJ). However, the Veteran failed to appear for his scheduled hearing on May 19, 2021 and has not submitted a request to reschedule the hearing. Accordingly, the hearing request is deemed withdrawn. 38 C.F.R. § 20.704(d). Increased Rating 1. Entitlement to an initial compensable disability rating for the service-connected bilateral hearing loss disability. The Veteran seeks a compensable initial disability rating for his bilateral hearing loss disability. Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 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. See 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. When the evidence is in relative equipoise, the veteran is accorded the benefit of the doubt. 38 U.S.C. § 5107(b). When an appeal arises from the initially assigned disability rating, consideration must be given as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). Moreover, staged ratings are appropriate in any increased-rating claim in which distinct time periods with different ratable symptoms or differing levels of severity can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). In general, when 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). Where, the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. See Fenderson v. West, 12 Vet. App. 119 (1999). Moreover, staged ratings are appropriate in any increased-rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). Impaired hearing is defined as a disability under VA law when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels (dB) or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The threshold for normal hearing is from 0 to 20 decibels; higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). Relevant laws and regulations stipulate that evaluations of defective hearing range from noncompensable to 100 percent based on the organic impairment of hearing acuity. Hearing impairment is measured by the results of controlled speech discrimination tests together with the average hearing threshold levels (which in turn, are measured by pure tone audiometric tests in the frequencies of 1000, 2000, 3000 and 4000 cycles per second (Hertz)). See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992) (defective hearing is rated based on a mere mechanical application of the rating criteria). The provisions of 38 C.F.R. § 4.85 establish eleven auditory acuity levels from I to XI. If hearing loss 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. 38 C.F.R. § 4.85(f). Tables VI and VII as set forth in section 4.85(h) are used to calculate the rating to be assigned. In guidance for cases involving exceptional patterns of hearing impairment, the schedular criteria stipulates that, when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000 and 4000 Hertz) is 55 decibels 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. 38 C.F.R. § 4.86(a). Each ear is evaluated separately. Additionally, when the pure tone 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. 38 C.F.R. § 4.86(b). The numeral will then be elevated to the next higher Roman numeral. Id. Each ear will be evaluated separately. In addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in his or her final report. See Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). The Veteran received an initial VA examination for his bilateral hearing loss disability in December 2016. The puretone thresholds in decibels recorded during the examination were as follows: Hertz (Hz) 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz Right 15 15 20 40 30 Left 20 15 20 30 40 Average puretone thresholds were 28.25 decibels for the right ear and 26.25 decibels for the left ear. Speech discrimination testing using the Maryland CNC word list revealed scores of 80 percent for the right ear and 84 percent for the left ear. The examiner certified that use of speech discrimination testing was appropriate. Finally, functional impairments documented by the examiner included, "difficulty understanding people when they talk, clarity problem. He has to ask people to speak louder when he's talking on the phone." The Veteran next received a VA examination for his bilateral hearing loss disability in October 2020. The puretone thresholds recorded during the examination were as follows: Hertz (Hz) 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz Right 20 20 20 30 45 Left 25 25 25 40 50 Average puretone thresholds were 28.75 decibels for the right ear and 35.00 decibels for the left ear. Speech discrimination testing using the Maryland CNC word list revealed scores of 80 percent for the right ear and 84 percent for the left ear. The examiner certified that use of speech discrimination testing was appropriate. Lastly, the examiner indicated that the Veteran's bilateral hearing loss had no functional impact on his daily activities and occupational functioning. Based on the foregoing, a compensable disability rating is not warranted for the service-connected bilateral hearing loss disability. Initially, there is no evidence that the Veteran suffers from an exceptional pattern of hearing impairment as defined by 38 C.F.R. § 4.86. Furthermore, application of the Veteran's puretone threshold averages and speech discrimination scores from the December 2016 and October 2020 VA exams to 38 C.F.R. § 4.85, Table VI, results in numerical hearing impairments of Level III for the right ear and Level II for the left ear. Combining Level III impairment in the right ear and Level II impairment for the left ear results using 38 C.F.R. § 4.85, Table VII results in a noncompensable disability rating. (Continued on the next page) Importantly, as noted above, the assignment of disability ratings for hearing impairment is derived primarily from a mechanical formula based on levels of puretone threshold average and speech discrimination. See Lendenmann, 3 Vet. App. at 345. Both the December 2016 and October 2020 examiners recorded findings regarding the functional impact of the Veteran's bilateral hearing loss disability on his daily life and occupational functioning. Martinak, 21 Vet. App. at 455-56. In particular, functional impairments recorded during the December 2016 examination included difficulty understanding speech, especially over the phone. However, functional impairment such as difficulty hearing speech is contemplated by the schedular criteria for hearing loss. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). Accordingly, there is no basis for consideration of an extraschedular rating. Given the above, the preponderance of the evidence shows that the criteria for an initial compensable disability rating for the service-connected bilateral hearing loss disability have not been met. Accordingly, an initial compensable disability rating for the bilateral hearing loss disability is not warranted. Z. SAHRAIE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Small, Attorney Advisor 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.