Citation Nr: 22017554 Decision Date: 03/25/22 Archive Date: 03/25/22 DOCKET NO. 17-54 789 DATE: March 25, 2022 ORDER Entitlement to an initial compensable disability rating for service-connected bilateral hearing loss, from February 17, 2015, is denied. FINDING OF FACT Throughout the appellate period the Veteran right and left ear hearing loss were no worse than Level I hearing in each 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; 38 C.F.R. § 4.85, Diagnostic Code 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 2001 to August 2010. This matter comes before the Board of Veterans' Appeals (Board) from a decision by a Department of Veterans Affairs (VA) agency of original jurisdiction (AOJ). The Board previously remanded this matter in June 2019. The Veteran contends that his bilateral hearing loss is more severe than initially rated. The AOJ awarded service connection bilateral hearing loss effective February 17, 2015. The only issue before the Board is only whether the Veteran is entitled to a higher initial disability rating for his service-connected hearing loss. The Veteran contends that the Board should not provide a decision on his disability rating for his hearing loss because he has several other claims pending. The Board finds that the Veteran does not have any other pending issues before the Board. The Board notes that an April 2019 decision by the AOJ denied several claims; however, the Veteran did not submit a notice of disagreement to this April 2019 decision. VA has met all statutory and regulatory notice and duty-to-assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. Neither the Veteran nor his representative has advanced any procedural arguments in relation to VA's duty to notify or assist. See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015) (holding that "absent extraordinary circumstances... we think it is appropriate for the Board and the Veterans Court to address only those procedural arguments specifically raised by the veteran"). Disability evaluations 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. 38 C.F.R. Part 4. When an appeal arises from the initial rating assigned, consideration must be given as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. See Fenderson v. West, 12 Vet. App. 119 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2007). A rating for hearing loss is determined by a mechanical application of the rating schedule to the numeric designations assigned based on audiometric test results. Lendenmann v. Principi, 3 Vet. App. 345 (1992). Evaluations of defective hearing range from noncompensable to 100 percent. The basic method of rating hearing loss involves audiological test results of organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests (Maryland CNC), together with the average hearing threshold level as measured by puretone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 Hertz. Puretone threshold average is the sum of puretone thresholds at 1000, 2000, 3000, and 4000 Hertz divided by four. To evaluate the degree of disability of service-connected hearing loss, the rating schedule establishes eleven auditory acuity levels ranging from numeric level I for essentially normal acuity, through numeric level XI for profound deafness. See 38 C.F.R. § 4.85, Diagnostic Code 6100. VA rating criteria for evaluating hearing loss disability provide ratings from 0 (noncompensable) to 100 percent, based on the results of controlled speech discrimination tests together with the results of puretone audiometry tests. 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100. The numeric level of hearing loss in each ear are then matched between the "better" ear and the "poorer" ear on Table VII to produce a disability rating under Diagnostic Code 6100. For exceptional patterns of hearing loss, when the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more, Table VI or Table VIa is to be used, whichever results in the higher numeral. 38 C.F.R. § 4.86 (a). Additionally, when the puretone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, Table VI or Table VIa is to be used, whichever results in the higher numeral. Thereafter, that numeral will be elevated to the next higher numeral. 38 C.F.R. § 4.86 (b). In May 2017, the Veteran underwent a VA audiological examination. The Veteran's puretone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Avg. RIGHT 5 10 30 55 25 LEFT 5 10 40 55 28 Speech audiometry revealed speech recognition ability of 100 percent in the right ear and of 100 in the left ear. The examiner found the Veteran's hearing loss impacted the Veteran's ordinary conditions of daily life, to include ability to work. The Veteran described his impact as people have to repeat things in order for him to understand. In November 2018, the Veteran underwent another VA audiological examination. The Veteran's puretone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Avg. RIGHT 5 15 25 55 25 LEFT 0 20 30 60 28 Speech audiometry revealed speech recognition ability of 98 percent in the right ear and of 96 in the left ear. The examiner found the Veteran's hearing loss impacted the Veteran's ordinary conditions of daily life, to include ability to work. The Veteran reported he had difficulty hearing and understanding speech. The Veteran stated he had to increased volume on the TV and cell phone. The Veteran noted he had to focus during meetings. In January 2020, the Veteran underwent another a VA audiological examination. The Veteran's puretone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Avg. RIGHT 5 15 55 55 33 LEFT 10 15 50 65 35 Speech audiometry revealed speech recognition ability of 98 percent in the right ear and of 96 in the left ear. The examiner found the Veteran's hearing loss impacted the Veteran's ordinary conditions of daily life, to include ability to work. The Veteran reported that clarity of speech was difficult and that noisy environments were bothersome. Upon review of the evidence, the Board finds that an initial compensable disability rating is not warranted at any time throughout the appellate period. None of the VA examinations documented exceptional patterns of hearing loss. The Veteran's hearing loss in his right ear was never greater than Level I hearing loss. The Veteran's hearing loss in the left ear was never greater than Level I hearing loss. The Veteran's VA treatment records do not indicate the Veteran's hearing loss is more severe than demonstrated in the VA audiological examinations. Therefore, under Table VII, the Veteran's hearing loss does not warrant a compensable rating. See 38 C.F.R. § 4.85. The Board considered the Veteran statements regarding the impact of the Veteran's hearing loss. However, the reported symptoms of difficulty with difficulty understanding people, increasing the volume on the television, and having to focus more during meetings are the very symptoms considered in the rating criteria and do not represent an exceptional or unusual disability picture. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). The inherent purpose of the schedular rating criteria is to determine, as far as practicable, the severity of functional impact resulting from a service-connected disability, including any resultant occupational and social impairment, and therefore contemplates the Veteran's difficulties functioning in social and occupational environments due to hearing loss. See also Doucette, 28 Vet. App. at 369. As such, the Board finds that a compensable disability rating is not warranted. Accordingly, the evidence is persuasively against the claim. As there is not an approximate balance of positive and negative evidence, the benefit-of-the-doubt doctrine is not applicable and a compensable disability rating for bilateral hearing loss is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Robert Batten 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.