Citation Nr: 22005366 Decision Date: 02/01/22 Archive Date: 02/01/22 DOCKET NO. 17-50 415A DATE: February 1, 2022 ORDER Prior to November 4, 2020, entitlement to an initial compensable rating for left ear hearing loss is denied. From November 4, 2020, entitlement to an initial compensable rating for bilateral hearing loss is denied. FINDINGS OF FACT 1. Prior to November 4, 2020, the Veteran was service connected only for left ear hearing loss, and the Veteran had Level I hearing loss in the left ear. 2. Since November 4, 2020, the Veteran has had Level I hearing loss bilaterally. CONCLUSIONS OF LAW 1. Prior to November 4, 2020, the criteria for entitlement to an initial compensable rating for left ear hearing loss were not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.85, Diagnostic Code (DC) 6100. 2. From November 4, 2020, the criteria for entitlement to an initial compensable rating for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.85, DC 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1965 to August 1969 and from May 1970 to May 1990. The case is on appeal from a December 2014 rating decision. In a December 2020 rating decision, service connection for right ear hearing loss was granted, effective November 4, 2020. Therein, the RO recharacterized the disability as bilateral hearing loss. Thus, the Board will now consider the rating assigned for left ear hearing loss prior to November 4, 2020 and for bilateral hearing loss thereafter. This case has been advanced on the Board's docket. 38 U.S.C. § 7107(a)(2). Increased Rating Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. 1. Entitlement to an initial compensable rating for left ear hearing loss prior to November 4, 2020 2. Entitlement to an initial compensable rating for bilateral hearing loss from November 4, 2020 The Veteran claims that the noncompensable ratings assigned for his left ear hearing loss prior to November 4, 2020 and bilateral hearing loss since November 4, 2020 do not reflect the severity of the symptoms he has experienced. Disability evaluations for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Examinations are conducted using the controlled speech discrimination tests together with the results of the pure tone audiometry test. See 38 C.F.R. § 4.85. The results are analyzed using tables contained in 38 C.F.R. § 4.85, DC 6100. The rating schedule for hearing loss provides that evaluations of hearing loss range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests together with average hearing threshold levels as measured by pure tone audiometry tests in the frequencies 1000, 2000, 3000, and 4000 cycles per second (Hertz). In December 2014, the Veteran was afforded a VA examination of his hearing loss, at which the following puretone thresholds were noted: HERTZ 1000 2000 3000 4000 Average RIGHT 15 25 25 30 24 LEFT 10 25 55 50 35 Speech discrimination scores were 100 percent bilaterally. This represents Level I hearing loss in the Veteran's service-connected left ear. A January 2020 VA treatment record notes that the Veteran deferred hearing aids as he did not have any significant communication difficulties. Puretone thresholds were tested during the appointment and were noted as: HERTZ 1000 2000 3000 4000 Average RIGHT 15 25 25 40 26 LEFT 10 25 55 55 36 On remand, it was indicated that the Maryland CNC Word List was not use for speech recognition testing at the January 2020 appointment. The Veteran was afforded another VA examination of his hearing loss in November 2020 at which the following puretone thresholds were noted: HERTZ 1000 2000 3000 4000 Average RIGHT 25 30 35 40 33 LEFT 20 35 60 55 43 Speech discrimination scores were 96 percent bilaterally. These results represent Level I hearing loss bilaterally. The Board finds that the December 2014 and November 2020 VA examinations are adequate to decide the claim as the examinations include the required audiological testing and reports of the Veteran's functional impairment due to hearing loss. The Board acknowledges the Veteran's representative's argument that the January 2020 treatment record is inadequate to rate the claim. However, the Board finds that additional remand is not necessary to afford the Veteran another VA examination of his hearing loss. The November 2020 VA examination is more recent, and there has been no indication of a worsening of the Veteran's hearing loss symptoms since November 2020. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) (holding that VA is to remand an increased rating claim for a new examination only when there is a compensable worsening of a Veteran's disability and not for the mere passage of time). The Board finds that, prior to November 4, 2020, an initial compensable rating for left ear hearing loss is not warranted. Prior to November 4, 2020, the Veteran had Level I hearing loss in the left ear and, under 38 C.F.R. § 4.85(f), hearing loss in the not-yet-service-connected right ear is to be assigned Level I. The Veteran's reported functional loss due to hearing was reported as difficulty hearing soft or distant speech and asking people to repeat themselves, particularly when he is teaching in a classroom, which is contemplated by the rating assigned. Doucette v. Shulkin, 28 Vet. App. 366 (2017). Further, the Veteran deferred hearing aids in January 2020 and denied any significant communication difficulties which also indicates that a compensable rating is not warranted. Finally, even if the Board were to consider the results of the January 2020 audiological testing based on puretone thresholds alone, the Veteran would still have Level I hearing loss bilaterally and a compensable rating for left ear hearing loss would not be warranted. 38 C.F.R. § 4.85, Table VIA (assigning Level I hearing loss where testing is based on puretone thresholds alone and puretone thresholds are 0-41 decibles). Therefore, the Board finds that an initial compensable rating prior to November 4, 2020 is not warranted. Similarly, from November 4, 2020, the Board finds that an initial compensable rating for bilateral hearing loss is not warranted. Hearing tests do show there was some increase in the puretone thresholds indicating a worsening of hearing loss. However, this testing shows that the Veteran has still had Level I hearing loss bilaterally. Further, the Veteran's functional loss was difficulty hearing with normal conversations, on the phone and in background noise, which are contemplated by the rating assigned. Doucette, supra. As a result, the Board finds that an initial compensable rating from November 4, 2020 is not warranted. Finally, the Board notes the Veteran's report from the December 2014 VA examination regarding difficulty hearing when teaching in a classroom. The Board has contemplated whether to address entitlement to total disability based on individual unemployability (TDIU) as part and parcel of the rating claim on appeal under Rice v. Shinseki, 22 Vet. App. 447 (2009). However, the Board finds that TDIU has not been raised as there is no report of unemployment, marginal employment, or employment in a protected environment that is related to the Veteran's hearing loss. In summary, an initial compensable rating for bilateral hearing loss is not warranted. C. CRAWFORD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. George 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.