Citation Nr: 22015175 Decision Date: 03/16/22 Archive Date: 03/16/22 DOCKET NO. 20-00 328 DATE: March 16, 2022 ORDER Entitlement to a rating in excess of 40 percent for bilateral hearing loss is denied. FINDING OF FACT The evidence of record persuasively weight against the assignment of a disability rating in excess of 40 percent for the Veteran's service-connected bilateral hearing loss. CONCLUSION OF LAW The criteria for a rating in excess of 40 percent for bilateral hearing loss are not met. 38 U.S.C. §§ 1155, 5103, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.400, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.85 4.86, (Diagnostic Code 6100). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1967 to September 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2019 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran provided testimony at a November 2021 videoconference hearing before the undersigned Veterans Law Judge at the RO. A transcript of the hearing is associated with the claims folder. The Veteran seeks a rating in excess of 40 percent, contending that his bilateral hearing loss is more severe than the rating assigned. Disability ratings are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. See 38 C.F.R. § 4.3. A disability rating may require re-evaluation in accordance with changes in a veteran's condition. Thus, it is essential that the disability be considered in the context of the entire recorded history when determining the level of current impairment. See 38 C.F.R. § 4.1. See also Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Nevertheless, where a veteran is appealing the rating for an already established service-connected condition, his present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, when an appeal is based on the assignment of an initial rating for a disability, following an initial award of service connection for this disability, the rule articulated in Francisco does not apply. Fenderson v. West, 12 Vet. App. 119 (1999). Instead, the evaluation must be based on the overall recorded history of a disability, giving equal weight to past and present medical reports. Id. Staged ratings are appropriate for an increased-rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). After the evidence has been assembled, it is the Board's responsibility to evaluate the entire record. 38 U.S.C. § 7104(a) (West 2014). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.3 (2017). A VA claimant need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the weight of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). A February 2019 rating decision increased the Veteran's bilateral hearing loss to 40 percent, effective October 11, 2018, assigned under Diagnostic Code 6100. Mechanical application of the Rating Schedule to the numeric designations for audiometry evaluations determines disability ratings for hearing impairment. Lendenmann v. Principi, 3 Vet. App. 345 (1992). An examination for VA compensation purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a puretone audiometry test. 38 C.F.R. § 4.85(a). Table VI, "Numeric Designation of Hearing Impairment Based on Puretone Threshold Average and Speech Discrimination," determines a Roman numeral designation (I through XI) for hearing impairment based on a combination of the percent of speech discrimination (horizontal rows) and the puretone threshold average (vertical columns). The Roman numeral designation is located at the point where the percentage of speech discrimination and puretone threshold average intersect. 38 C.F.R. § 4.85(b). "Puretone threshold average," as used in Tables VI and VIa, is the sum of the puretone thresholds at 1000, 2000, 3000 and 4000 Hertz, divided by four. This average is used in all cases (including those in § 4.86) to determine the Roman numeral designation for hearing impairment from Table VI or VIa. 38 C.F.R. § 4.85(d). Table VII, "Percentage Evaluations for Hearing Impairment," determines a percentage evaluation by combining the Roman numeral designations for hearing impairment of each ear. The vertical rows represent the ear having the better hearing and the horizontal columns represent the ear having the poorer hearing. The percentage evaluation is located at the point where the row and column intersect. 38 C.F.R. § 4.85(e). When the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more, or the 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. That numeral will then be elevated to the next higher Roman numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86. Table VIa, "Numeric Designation of Hearing Impairment Based Only on Puretone Threshold Average," is used to determine a Roman numeral designation (I through XI) for hearing impairment based only on the puretone threshold average. Table VIa will be used when the examiner certifies that use of the speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc., or when indicated under the provisions of § 4.86. 38 C.F.R. § 4.85(c). Regulations also provide that in cases of exceptional hearing loss, i.e., when the puretone 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). The provisions of 38 C.F.R. § 4.86(b) further provide that when the puretone threshold is 30 decibels or less at 1000 hertz and 70 decibels or more at 2000, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or VIa, whichever results in the higher numeral. That numeral will then be evaluated to the next higher Roman numeral. Upon VA audiological examination in November 2018, the Veteran's puretone thresholds in decibels, were as follows: HERTZ 1000 2000 3000 4000 AVG RIGHT 60 65 85 95 76.25 LEFT 80 95 100 110 96.25 The speech discrimination score was 88 percent for the right ear and the examiner could not test the left ear, noting word discrimination scores were not appropriate for the left ear. The audiometric findings, as applied to Table VI, yielded a Roman numeral designation of III for the right ear. The audiometric findings, as applied to Table VIA, yielded a Roman numeral designation of IX for the left ear. The Roman numeral designation for the right ear (III) along with the assigned Roman numeral designation for the left ear (IX), entered into Table VII produce a 20 percent disability rating for hearing impairment. Audiometric testing results from the VA examinations are probative and appear valid for rating purposes. The examiner found there is a functional impact as the Veteran reported that he experiences problems understanding conversations and has to turn towards the source of the sound. In this case the RO assigned a 40 percent evaluation using Table VIA. The audiometric findings, as applied to Table VIA, yielded a Roman numeral designation of VI for the right ear and IX for the left ear. The Roman numeral designation for the right ear (VI) along with the assigned Roman numeral designation for the left ear (IX), entered into Table VII produce a 40 percent disability rating for hearing impairment. During the November 2021 Board hearing the Veteran indicated his doctor told him he only had about 5 percent hearing capacity remaining on his left ear. The Veteran indicated his hearing has worsened as his left ear has almost total hearing loss, but he can hear some from his right ear. The Board has reviewed all of the lay and medical evidence of record in conjunction with the applicable laws and regulations and finds a rating in excess of 40 percent is not warranted for the service-connected bilateral hearing loss. The Veteran is competent to describe the effects of his hearing loss in his daily functioning, such as having difficulty understanding other people. However, disability ratings are derived by a mechanical application of the rating schedule. Lendenmann, 3 Vet. App. at 349. Thus, the Board has no discretion in this matter and must predicate its determination on the basis of the results of the audiological examinations of record. Here, mechanical application of the Rating Schedule to the audiometric findings establishes entitlement to a 40 percent evaluation in accordance with 38 C.F.R. § 4.86(a)., Table VIA. Although the Veteran indicated his hearing has worsened the Board finds remand for a new VA examination is not warranted. There must be evidence that the disability had worsened since the last examination. See Palczewski v. Nicholson, 21 Vet. App. 174, 181-83 (2007); VAOPGCPREC 11-95 (1995). Here, since the November 2018 VA examination, other than the blanket statement included in the November 2021 Board hearing, the evidence of record is devoid of any treatment for, or complaints related to a worsening of his hearing loss. Indeed, the Veteran indicated he would provide treatment records from a private audiologist as he was scheduled for a follow up appointment after the Board hearing. However, the Veteran has not provided any records. Accordingly, a rating in excess of 40 percent is not warranted. [SIGNATURE ON NEXT PAGE] JONATHAN B. KRAMER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Jackman, Bridget 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.