Citation Nr: 21039781 Decision Date: 07/01/21 Archive Date: 07/01/21 DOCKET NO. 19-37 297 DATE: July 1, 2021 ORDER Entitlement to an initial compensable rating for bilateral hearing loss is denied. FINDING OF FACT During the period of the appeal, the Veteran's hearing loss manifested on separate occasions not worse than Level III acuity in the right ear and Level III acuity in the left ear. CONCLUSION OF LAW The criteria for a compensable rating for bilateral hearing loss have not been met. 38 U.S.C. §§ 5107 (2012); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.21, 4.85, DC 6100 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from July 1963 to July 1965 as a radio teletype operator. This appeal comes before the Board of Veterans' Appeals (Board) from a June 2018 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In November 2020 the Veteran testified before the undersigned Veterans Law Judge. The transcript of the proceeding has been associated with the claims file. The Board issued a remand order in January 2021. There has been substantial compliance with remand directives. See Stegal v. West, 11 Vet. App. 268, 271 (1998). Increased Ratings 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. 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 appellant working or seeking work. 38 C.F.R. § 4.2. 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. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as "staging the ratings." Hart v. Mansfield, 21 Vet. App. 505 (2008). The assignment of disability ratings for hearing impairment are derived by the mechanical application of the Ratings Schedule to the numeric designations assigned after audiometry evaluations are rendered. See Lendenmann v. Principi, 3 Vet. App. 345. In Martinak v. Nicholson, 21 Vet. App. 447, 455, the Court held that, relevant to VA audiological examinations, 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. An examination for hearing impairment for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a pure tone audiometry test. 38 C.F.R. § 4.85(a). To evaluate the degree of disability from defective hearing, the rating schedule establishes 11 auditory acuity levels from Level I through Level XI. These are assigned based on a combination of the percent of speech discrimination and the pure-tone threshold average, as contained in a series of tables within the regulations. The pure-tone threshold average is the sum of the pure tone thresholds at 1000, 2000, 3000, and 4000 Hertz, divided by four. 38 C.F.R. § 4.85(d). This average is used in all cases to determine the Roman numeral designation for hearing impairment. Average pure-tone decibel loss for each ear is located on Table VI ("Numeric Designation of Hearing Impairment Based on Pure-tone Threshold Average and Speech Discrimination") along a horizontal axis, and percent of discrimination is located along a vertical axis. 38 C.F.R. § 4.85, Table VI (2016). The results are then matched between the "better" ear and the "poorer" ear on Table VII ("Percentage Evaluation for Hearing Impairment (Diagnostic Code 6100)") to produce a disability rating under Diagnostic Code 6100. Additional tables are available for use in cases with exceptional patterns of hearing loss. Table VIa will be used when the examiner certifies that the use of speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc., or when indicated under the provisions of 38 C.F.R. § 4.86. See 38 C.F.R. § 4.85(c). 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. Each ear will be evaluated separately. 38 C.F.R. § 4.86(a). Entitlement to a compensable rating for bilateral hearing loss In May 2018 the Veteran submitted a claim for an increased rating for bilateral hearing loss. In doing so, the Veteran described worsening symptomatology, to include difficulty with background noise, hearing female and child voices and needing to turn up the volume of his television. See May 2018 VA 21-526EZ, see also May 2018 VA 21-4138. A VA examination was provided in June 2018 and based upon the results the Veteran's noncompensable rating was continued in June 2018. HERTZ 1000 2000 3000 4000 Average RIGHT 25 60 65 65 54 LEFT 25 40 65 65 49 Speech audiometry revealed speech discrimination of 90 percent in the right ear and of 82 percent in the left ear. These results, when applied to Table VI correspond to a Level II designation for the right ear, and a Level III designation for the left ear. The Veteran reported an inability to hear conversations from others nearby. Under Table VII, Level II hearing for the "better" (right) and Level III hearing for the "worse" (left) ear warrants the assignment noncompensable disability rating. 38 C.F.R. § 4.85. The Veteran subsequently submitted a timely notice of disagreement in July 2018. He reported that the testing did not adequately address his hearing loss and that he had difficulty hearing female and children's voices in background noise, had to turn up the volume on a television, and had to read lips to understand conversation. He underwent a second VA examination in October 2019. HERTZ 1000 2000 3000 4000 Average RIGHT 40 65 70 75 63 LEFT 40 60 75 75 63 Speech audiometry revealed speech discrimination of 84 percent in the right ear and of 96 percent in the left ear. These results, when applied to Table VI correspond to a Level III designation for the right ear, and a Level II designation for the left ear. Under Table VII, Level II hearing for the "better" (left) and Level III hearing for the "worse" (right) ear warrants the assignment of a noncompensable disability rating. 38 C.F.R. § 4.85. Based upon the results of the examination, a Statement of the Case (SOC) was provided in December 2019, continuing the Veteran's noncompensable rating. The Veteran submitted a timely VA Form 9 in which he requested a Board hearing. In October 2020, the Veteran testified at a Board hearing as to a worsening of symptoms since his last VA examination, to include not understanding what people are saying when talking to him. The Veteran testified as to undergoing another VA audiogram at the time he was provided new hearing aids. See November 2020 Hearing Transcript. He submitted VA outpatient treatment records that included a report of a June 2020 audiometric examination in which there was some worsening of puretone thresholds. However, the speech recognition testing was performed using the CIDW-22 method and not the requited Maryland CNC method. As such, the Board issued a remand order in January 2021 ordering a new VA examination. See January 2021 BVA Decision. As per Board remand directives, a VA examination was provided in April 2021. Upon testing, pure-tone thresholds, in decibels, were: HERTZ 1000 2000 3000 4000 Average RIGHT 45 75 70 85 68.75 LEFT 40 65 70 75 62.50 Speech audiometry revealed speech discrimination of 88 percent in the right ear and of 84 percent in the left ear. These results, when applied to Table VI correspond to a Level III designation for the right ear, and a Level III designation for the left ear. Under Table VII, Level III hearing for the "better" (right) and Level III hearing for the "worse" (left) ear warrants the assignment of a noncompensable disability rating. 38 C.F.R. § 4.85. A supplemental statement of the case (SSOC) was provided in April 2021 explaining the denial of an increased rating. The Veteran's representative filed a June 2021 appellate brief, asserting that an increased rating was warranted without argument. The claim is now properly before the Board. The Board acknowledges the lay evidence of record when adjudicating this claim, including that the Veteran sensed a worsening of his hearing acuity. The Veteran is competent to report difficulty with his hearing and the effects of his disability; however, disability ratings for hearing loss are derived from an application of the rating schedule to the numeric designations resulting from audiometric testing. See Lendenmann, supra. The functional effects of bilateral hearing loss are considered in the rating criteria. As the weight of competent and credible evidence is against the claim for a compensable rating for bilateral hearing loss, the "benefit of the doubt" doctrine is not for application, and the Board must deny the claim. See 38 U.S.C. § 5107(b). J.W. FRANCIS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P. Abels, 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.