Citation Nr: 22017289 Decision Date: 03/24/22 Archive Date: 03/24/22 DOCKET NO. 16-08 253 DATE: March 24, 2022 ORDER Entitlement to a compensable rating for bilateral hearing loss is denied. FINDING OF FACT Throughout the period on appeal, audiometric examination has corresponded to no greater than Level II hearing loss in the right ear and Level II hearing loss in the left ear CONCLUSION OF LAW The criteria for entitlement to a compensable rating for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.385, 4.85, 4.86. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1978 to August 1991. He appeals a February 2015 rating decision granting entitlement to service connection for bilateral hearing loss with a noncompensable evaluation. Increased Ratings Disability ratings are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The Veteran's entire history is reviewed when making disability evaluations. See generally, Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 4.1. Where the question for consideration is the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection is required. See Fenderson v. West, 12 Vet. App. 199, 125-26 (1999). Where entitlement to compensation already has 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). Further, "[w]here 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. Evaluations of defective hearing range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of a controlled Maryland CNC speech discrimination test together with the average hearing threshold level measured by pure tone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hertz). 38 C.F.R. § 4.85, Diagnostic Code 6100. 1. Entitlement to a compensable rating for bilateral hearing loss. The Veteran seeks a compensable rating for his bilateral hearing loss. After a review of the evidence, the Board finds that a compensable rating is not warranted. The Veteran underwent a VA examination (with audiometric evaluations) in November 2014 to evaluate the severity of his bilateral hearing loss. On that occasion, the Veteran reported that his right ear is his better ear. He also reported difficulty locating sounds at a distance, was unable to hear certain alarms, and did not hear certain voices. The Maryland CNC Word List speech recognition scores and pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 40 40 65 75 55 LEFT 40 35 45 65 46 The speech recognition scores on the Maryland CNC word list were 88 percent for the right ear, and 88 percent for the left ear. An exceptional pattern of hearing loss was not shown. Applying the test results of the June 2018 VA examination report to Table VI of the Rating Schedule results in a Roman numeric designation of Level II for the right ear and Level II for the left ear. The result corresponds with a noncompensable disability rating for bilateral hearing loss. The Veteran underwent another VA examination (with audiometric evaluations) in February 2015. On that occasion, the Veteran reported difficulty hearing alarms, certain voices and speakers, and had trouble hearing cars as they passed. The Maryland CNC Word List speech recognition scores and pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 30 35 65 75 51 LEFT 35 30 45 65 44 The speech recognition scores on the Maryland CNC word list were 88 percent for the right ear, and 94 percent for the left ear. An exceptional pattern of hearing loss was not shown. Applying the test results of the June 2018 VA examination report to Table VI of the Rating Schedule results in a Roman numeric designation of Level II for the right ear and Level I for the left ear. The result corresponds with a noncompensable disability rating for bilateral hearing loss. The Veteran was afforded another VA examination in May 2019. On that occasion, the examiner determined the test results were not valid for rating purposes. Specifically, the right levels were likely impacted by cerumen (earwax) that could not be removed without pain. Given the flat tympanogram and conductive overlay, cerumen removal may improve the right ear's thresholds via air conduction. The Board observes that the Veteran was treated for increased hearing loss due to excessive cerumen in June and September 2015. On both occasions, the Veteran's hearing aids were cleaned and baseline hearing loss was restored. Indeed, in December 2020, the Veteran reported significant right ear hearing improvement after having his right ear canal cleaned. The Veteran was scheduled for a follow-up VA examination after having the cerumen removed from his right ear but chose to not to attend. As such, evidence that may have been material to the Veteran's claim is unavailable for review. Based on the medical evidence as it stands, a compensable rating for bilateral hearing loss is not warranted. The Board has also considered the Veteran's statements that his hearing loss is worse than the ratings he receives. Martinak v. Nicholson, 21 Vet. App. 447 (2007). As such, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. While the Veteran is competent to report symptoms of hearing loss because this requires only personal knowledge as it comes to him through his senses, he is not competent to identify a specific level of his disorder according to the appropriate diagnostic code. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). On the other hand, such competent evidence concerning the nature and extent of the Veteran's disorder have been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports) directly address the criteria under which this disability is evaluated. In summation, the Board finds that audiometric evaluations of record show that a compensable rating for bilateral hearing loss is not warranted. 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. B.T. KNOPE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Daniel Ballinger, Associate Counsel