Citation Nr: 21041513 Decision Date: 07/09/21 Archive Date: 07/09/21 DOCKET NO. 17-14 223 DATE: July 9, 2021 ORDER Entitlement to an initial compensable rating for bilateral hearing loss is denied. FINDING OF FACT The Veteran's bilateral hearing has been manifested by hearing acuity of no worse than Level IV in the right ear and no worse than Level II 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. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran was a member of the California National Guard and had active duty for training in the United States Army from February 1982 to May 1982. The Veteran testified before the Board at a March 2020 videoconference hearing. A transcript has been associated with the claims file. By way of background, the agency of original jurisdiction (AOJ) granted entitlement to service connection for a bilateral hearing loss disability, effective November 6, 2015 at a noncompensable (zero percent) level, in a March 2016 rating decision, for which the Veteran received notice in a March 10, 2006 letter. Within one year, the Veteran submitted new and material evidence in the form of a statement received March 6, 2017, noting that he had experienced more difficulty hearing the various ranges of the human voice and sounds from electronic audio equipment. He noted extreme difficulty distinguishing voices in a crowded room, and put VA on notice of additional medical treatment from VA for his hearing loss. The AOJ scheduled a new examination and readjudicated the Veteran's hearing loss rating in a May 2017 rating decision. The Veteran disagreed with the denial, and perfected this appeal. Per the provisions of 38 C.F.R. § 3.156(b), the Board finds that the March 2016 rating decision initially awarding service connection and assigning an initial rating for hearing loss did not become final. As such, the issue before the Board is entitlement to a compensable initial rating, from the effective date of service connection to the present. Entitlement to an initial compensable rating for bilateral hearing loss is denied. Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), 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. § § 3.321(a), 4.1. Where entitlement to compensation has already 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 entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. The relevant temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period, which began one year before the claim was filed until the VA makes a final decision on the claim. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Ratings for hearing loss are determined in accordance with the findings obtained on audiometric examinations. Hearing loss disability evaluations range from noncompensable, or 0 percent, to a maximum of 100 percent based on the degree of hearing impairment. In disability examinations, the VA measures the degree of hearing loss with a controlled speech discrimination test, the Maryland CNC test, along with an average hearing threshold test, known as the puretone audiometric test, in the frequencies, or pitches, of 1000, 2000, 3000, and 4000 vibrations per second (Hertz, which is abbreviated as Hz). To evaluate the degree of disability from bilateral service-connected hearing loss, the schedule establishes 11 auditory hearing acuity levels designated from Level I for essentially normal hearing acuity through Level XI for profound deafness. 38 C.F.R. § 4.85, Tables VI and VII. An exceptional pattern of hearing impairment occurs when the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more. 38 C.F.R. § 4.86(a). In that situation, 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. Further, when the average puretone 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, and that numeral will then be elevated to the next higher numeral. 38 C.F.R. § 4.86(b). Pursuant to his claim, the Veteran underwent a VA hearing loss examination in January 2016. The VA audiometric evaluation identified puretone thresholds, in decibels, as follows: 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz Avg. 1000 Hz 4000 Hz Right Ear 40 45 50 60 80 59 (rounded up) Left Ear 35 40 35 60 75 53 (rounded up) Speech audiometry revealed speech recognition ability of 84 percent in the right ear and 84 percent in the left ear. The average of the 1000-4000 Hz thresholds is 59 decibels for the right ear and 53 decibels for the left ear. Under 38 C.F.R. § 4.85 and Table VI, these results correspond to Level III acuity in the right ear and Level II acuity in the left ear. Those levels warrant a noncompensable, or 0 percent rating, under Table VII. The Veteran's test results do not demonstrate an exceptional pattern of hearing loss, as per 38 C.F.R. § 4.86. The Veteran sought care from VA for his hearing loss in March 2017, at which time it was noted the Veteran exhibited mild to moderate low frequency sensorineural hearing loss sloping upward to within normal limits in midrange frequencies, and then sloping to a severe high frequency sensorineural hearing loss with word recognition ability of 100 percent in both ears. The Veteran was promptly scheduled for a VA examination in April 2017 and the audiometric evaluation identified puretone thresholds, in decibels, as follows: 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz Avg. 1000 Hz 4000 Hz Right Ear 45 40 35 60 75 53 (rounded up) Left Ear 45 45 35 55 75 53 (rounded up) Speech audiometry revealed speech recognition ability of 80 percent in the right ear and 88 percent in the left ear. The average of the 1000-4000 Hz thresholds is 53 decibels for the right ear and 53 decibels for the left ear. Under 38 C.F.R. § 4.85 and Table VI, these results correspond to Level IV acuity in the right ear and Level II acuity in the left ear. Those levels warrant a noncompensable, or 0 percent rating, under Table VII. The Veteran's test results do not demonstrate an exceptional pattern of hearing loss, as per 38 C.F.R. § 4.86. During the Veteran's hearing in March 2020, the Veteran testified that he currently wears hearing aids, that he can't hear phones ringing anymore, and that he has had to increase the volume on his hearing aids to compensate for his increased hearing loss. Following the Board's April 2021 remand, the Veteran's underwent a VA examination to assess his hearing in May 2021. The VA audiometric evaluation identified puretone thresholds, in decibels, as follows: 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz Avg. 1000 Hz 4000 Hz Right Ear 50 50 50 70 80 63 (rounded up) Left Ear 45 45 40 65 75 56 (rounded down) Speech audiometry revealed speech recognition ability of 84 percent in the right ear and 84 percent in the left ear. The average of the 1000-4000 Hz thresholds is 63 decibels for the right ear and 56 decibels for the left ear. Under 38 C.F.R. § 4.85 and Table VI, these results correspond to Level III acuity in the right ear and Level II acuity in the left ear. Those levels warrant a noncompensable, or 0 percent rating, under Table VII. The Veteran's test results do not demonstrate an exceptional pattern of hearing loss, as per 38 C.F.R. § 4.86. The Board acknowledges the Veteran's statements regarding the difficulty his hearing loss has caused in his daily life. The Board has carefully considered these statements, and in no way discounts the Veteran's asserted hearing difficulties. The Veteran's additionally reported complaints, although understandably difficult, are nevertheless representative of sensorineural hearing loss and are therefore contemplated by the rating schedule. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). It must be emphasized that schedular disability ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numerical designation assigned after audiometric results are obtained. Hence, the Board must predicate its determination on the basis of the results of the audiometric studies in the record. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). Based on the evidence described above, the Board finds that the disability is simply not severe enough to warrant a compensable disability rating under the rating criteria, and the benefit sought must be denied. Should the Veteran's disability worsen in severity, he may file a new claim for increase. V. Chiappetta Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Hennessy, 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.