210224-143276

Citation Nr: AXXXXXXXX Decision Date: 04/30/21 Archive Date: 04/30/21 DOCKET NO. 210224-143276 DATE: April 30, 2021 ORDER A rating in excess of 10 percent for bilateral hearing loss is denied. FINDING OF FACT The Veteran’s bilateral hearing loss was manifested by no worse than level IV hearing acuity in the right ear and level IV hearing acuity in the left ear. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155 , 5107; 38 C.F.R. §§ 4.7 , 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1952 to January 1975. This case comes before the Board of Veterans’ Appeals (Board) from a January 2021 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). On his February 2021 VA Form 10182, Decision Review Request: Board Appeal, (Notice of Disagreement (NOD)), the Veteran indicated that he did not want a hearing and would not be submitting any additional evidence. This case is being reviewed under the Appeals Modernization Act (AMA), which became effective February 19, 2019. Direct review of AMA appeals is limited to the evidence on record at the time of rating decision on appeal. Duties to Notify and Assist Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record an address procedural arguments when the veteran fails to raise them before the Board”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Increased Rating In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1 . Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 . Separate ratings can be assigned for separate periods based on the facts found. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). To evaluate the degree of disability from defective hearing, the rating schedule establishes eleven auditory acuity levels from level I for essentially normal acuity through level XI for profound deafness. 38 C.F.R. § 4.85 . To evaluate an individual’s level of disability, Table VI is used to assign a Roman numeral designation for hearing impairment based on a combination of the percent of speech discrimination and the pure tone threshold average. 38 C.F.R. § 4.85 (b). Table VII is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment for each ear. 38 C.F.R. § 4.85 (e). If impaired hearing is service-connected in only one ear, the nonservice-connected ear will be assigned a Roman numeral designation for hearing impairment of Level I. 38 C.F.R. § 4.85 . The rating criteria provide for alternative ratings when an exceptional pattern of hearing is met. If the puretone threshold at each of the specified frequencies of 1000, 2000, 3000, and 4000 Hertz is 55 decibels or more, an evaluation can be based either on Table VI or Table VIA, whichever results in a higher evaluation. 38 C.F.R. § 4.86 (a). When the puretone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz, the Roman numeral designation for hearing impairment will be chosen from either Table VI or Table VIA, whichever results in the higher numeral, and that numeral will then be elevated to the next higher Roman numeral. 38 C.F.R. § 4.86 (b). Facts and Analysis A March 2016 RO decision granted the Veteran service connection for bilateral hearing loss and assigned a noncompensable rating, effective August 17, 2015. On December 3, 2020, VA received the Veteran’s application, in part, seeking an increased rating. By January 2021 rating decision the RO increased the rating for the Veteran’s bilateral hearing loss to 10 percent disabling, effective November 30, 2020. In December 2020 the Veteran underwent a VA audiological examination. Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 55 60 60 55 LEFT 55 65 60 55 The average pure tone threshold was 57.5 (58) in the right ear and 58.75 (59) in the left ear. Speech recognition ability was 90 percent in the right ear and 88 percent in the left ear. The audiological findings correspond to a level III hearing in the right ear and level III hearing in the left ear. 38 C.F.R. § 4.85 , Table VI. Under Table VII, a designation of level III hearing in the right ear and level III hearing in the left ear yields a 0 percent evaluation. 38 C.F.R. § 4.85 , Diagnostic Code 6100. Consideration will now be given to 38 C.F.R. § 4.86 for exceptional patterns of hearing impairment, as pure tone threshold levels for both ears were 55 dB or higher at each of the four frequencies, i.e., at 1000, 2000, 3000 and 4000 hertz. Using Table VIA, the audiological findings correspond to a level IV hearing in the right ear and level IV hearing in the left ear. Under Table VII, a designation of level IV hearing in the right ear and level IV hearing in the left ear yields a 10 percent evaluation, the Veteran’s currently assigned disability evaluation. The Board notes that the December 2020 VA audiological examination report described the effects of the Veteran’s hearing impairments on his daily life. See Martinak v. Nicholson, 21 Vet. App. 447 (2007). The December 2020 VA examiner noted that the Veteran reported having difficulty understanding speech in the presence of background noise and group settings. The Veteran has made credible statements attesting to his hearing difficulties in his everyday life. The Board observes, however, that such reports of difficulties are consistent with the speech recognition percentage scores and audiometric decibel thresholds as measured, but the assignment of disability ratings for hearing impairment is derived by a mechanical application of the rating schedule to the numeric designation assigned after audiometry results are obtained. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). In sum, a rating in excess of 10 percent for service-connected hearing loss is not warranted. The Board has been mindful of the “benefit-of-the-doubt” rule, but, in this case, there is not such an approximate balance of the positive evidence and the negative evidence to permit a more favorable determination. The appeal is denied. C. CRAWFORD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board David Nelson 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 .