Citation Nr: 21042361 Decision Date: 07/12/21 Archive Date: 07/12/21 DOCKET NO. 18-37 025 DATE: July 12, 2021 ORDER Entitlement to an initial evaluation in excess of 40 percent for bilateral hearing loss is denied. FINDING OF FACT The Veteran has, at worst, Level V hearing impairment in the right ear and Level XI hearing impairment in the left ear. CONCLUSION OF LAW The criteria for an initial evaluation in excess of 40 percent for bilateral hearing loss are not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.7, 4.10, 4.85, Diagnostic Code 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1960 to April 1964. This matter comes before the Board of Veterans' Appeals (Board) on appeal from September 2017 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). During the pendency of the appeal, the Veteran was granted service connection for left ear hearing loss and his evaluation for bilateral hearing loss was increased to 40 percent effective May 30, 2017. Entitlement to an initial evaluation in excess of 40 percent for bilateral hearing loss is denied. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of, or incident to, military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 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. 38 C.F.R. § 4.7. Evaluations of defective hearing are based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination testing together with the average hearing threshold level as measured by puretone audiometric tests in the frequencies 1000, 2000, 3000, and 4000 Hertz (Hz). To evaluate the degree of disability from defective hearing, the rating schedule requires assignment of a Roman numeral designation, ranging from I to XI. Other than exceptional cases, VA arrives at the proper designation by mechanical application of Table VI, which determines the designation based on results of standard test parameters. Table VII is then applied to arrive at a rating based upon the respective Roman numeral designations for each ear. Where impaired hearing is service connected in only one ear, the non-service-connected ear will be assigned a Roman numeral I for rating purposes. 38 C.F.R. § 4.85, Diagnostic Code 6100. Under 38 C.F.R. § 4.86, when the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hz) is 55 decibels (dB) or more, the rating specialist will determine the Level designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. Each ear will be evaluated separately. Further, when the average puretone threshold is 30 dB or less at 1000 Hertz, and 70 dB or more at 2000 Hz, the rating specialist will determine the Level designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. That numeral will then be elevated to the next higher level. Each ear will be evaluated separately. 38 C.F.R. § 4.86(b). During the appellate period, the Veteran underwent audiological examination in September 2017 and December 2020. See September 2017 Examination; see also December 2020 Examination. The September 2017 examination did not include puretone threshold results for the left ear. Without these readings, this report is not considered adequate for adjudication purposes. It also contains findings for the right ear which are less favorable to the Veteran than the December 2020 report and it is to the Veteran's benefit to determine the appropriate evaluation based on the most recent findings. During the December 2020 examination, audiological testing was performed. The results of the puretone threshold testing were in the right ear at 1000, 2000, 3000, and 4000 Hz of 60, 75, 65, and 70 dB, respectively, for an average over the four frequencies of interest of 67.5 dB. Test results of puretone thresholds were in the left ear at 1000, 2000, 3000, and 4000 Hz of 105, 105, 105, and 105 dB, respectively, for an average over the four frequencies of interest of 105 dB. Speech audiometry revealed speech recognition scores of 96 percent in the right ear and 0 percent in the left ear. The results show that the Veteran has exceptional hearing loss in both ears as contemplated in 38 C.F.R. § 4.86. Given the Veteran's exceptional hearing loss patterns, application of 38 C.F.R. § 4.85 Table VIa to the December 2020 measurements results in the assignment of Roman Numeral V in the right ear and a Roman Numeral XI in the left ear. Application of Table VI results in a Roman Numeral II in the right ear and a Roman Numeral XI in the left ear. The Table VIa results reflect greater impairment and will be used to rate the Veteran. 38 C.F.R. § 4.86. Using the Roman Numeral V and XI levels of hearing impairment, a 40 percent evaluation is derived from the application of Table VII of 38 C.F.R. § 4.85. In summary, the Board finds the December 2020 objective examination is most probative of the degree of the Veteran's impairment, the opinions and observations of the Veteran alone cannot necessarily meet the burden imposed by the rating criteria under 38 C.F.R. § 4.85, Diagnostic Code 6100 with respect to determining the severity of his service-connected bilateral hearing loss disability. Accordingly, the Veteran's bilateral hearing loss does not warrant an initial evaluation in excess of 40 percent and the appeal is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. J. B. FREEMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Trickey 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.