HEARING LOSS

GRACE J. SUH · 2025 · Case ID: A25007419

DENIED

Summary

The veteran, who served from August 1968 to February 1970, appeals the denial of an initial compensable rating for bilateral hearing loss (BHL) prior to September 8, 2023, and an increased rating thereafter. The veteran elected the Direct Review docket, limiting the Board's review to evidence available at the time of the September 2022 rating decision. The Board found that a subsequent May 2024 rating decision from the AOJ granted an increased rating of 40 percent for BHL from September 8, 2023, but this decision is not before the Board. The Board reviewed a September 2022 VA examination, which indicated specific puretone thresholds and speech discrimination scores. Applying these results to the rating schedule, the Board determined the veteran qualified for a noncompensable rating based on the mechanical application of the audiometric data. The Board found the VA examination adequate and that the evidence did not support a higher rating or an initial compensable rating. Therefore, entitlement to an initial compensable rating for BHL is denied.

Rationale

September 2022 VA examination results applied to rating schedule; Mechanical application of audiometric data resulted in noncompensable rating; No evidence of record supported a higher rating or initial compensable rating

Special Benefit

NO SPECIAL BENEFIT

Diagnostic Code

6100

Docket No.

230908-375159

Full Decision Text

Citation Nr: A25007419
Decision Date: 01/28/25 Archive Date: 01/28/25

DOCKET NO. 230908-375159
DATE: January 28, 2025

ORDER

Entitlement to an initial compensable rating for bilateral hearing loss (BHL) prior to September 8, 2023, and an increased rating in excess of 40 percent thereafter, is denied.

FINDINGS OF FACT

1. Prior to September 8, 2023, audiometric examination corresponds to hearing acuity no greater than Level II hearing loss in the right ear and Level IV hearing loss in the left ear.

2. There is no evidence of record that the Board may consider for the period from September 8, 2023, given that the rating decision on appeal was issued in September 2022 and the Veteran elected the Direct Review docket before the Board of Veterans' Appeals (Board).

CONCLUSION OF LAW

The criteria for an initial compensable disability rating for BHL ) prior to September 8, 2023, and an increased rating in excess of 40 percent thereafter, have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.85, Diagnostic Code 6100.

REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veteran served on active duty from August 1968 to February 1970.

This matter comes before the Board on appeal from a September 2022 rating decision issued by a Department of Veterans Affairs (VA) regional office, an agency of original jurisdiction (AOJ), which awarded service connection for BHL and assigned a noncompensable initial rating. Thereafter, in a May 2024 rating decision, the AOJ granted an increased rating of 40 percent for the BHL from September 8, 2023.

In his September 2023 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time the AOJ issued the September 2022 rating decision on appeal. 38 C.F.R. § 20.301. Any evidence submitted after the September 2022 rating decision on appeal cannot be considered by the Board. 38 C.F.R. §§ 20.300, 20.301, 20.801.

Evidence was added to the claims file during a period of time when new evidence was not allowed. As the Board is deciding the claim herein, it may not consider this evidence in its decision. 38 C.F.R. § 20.300. The Veteran may file a Supplemental Claim (VA Form 20-0995, Decision Review Request: Supplemental Claim) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision.

When a veteran seeks an increased evaluation, it will generally be presumed that the maximum benefit allowed by law and regulation is sought, and it follows that such a claim remains in controversy where less than the maximum benefit available is awarded. See AB v. Brown, 6 Vet. App. 35, 38 (1993).

Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1.

When considering 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). However, 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). The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is
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 for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7.

Additionally, rating the same disability under multiple diagnoses is prohibited. See 38 C.F.R. § 4.14. However, when it is not possible to separate the effects of the service-connected disability from a nonservice-connected condition, such signs and symptoms must be attributed to the service-connected disability. Mittleider v. West, 11 Vet. App. 181, 182 (1998); see also 38 C.F.R. § 3.102.

Hearing loss is evaluated through the mechanical application of a veteran's audiometric test results to the rating tables set forth in the Rating Schedule under Diagnostic Code 6100. 38 C.F.R. § 4.85; Doucette v. Shulkin, 28 Vet. App. 366, 367 (2017).

For VA compensation purposes, an examination for hearing impairment must be conducted by a state-licensed audiologist and must include a puretone audiometry test as well as a controlled speech discrimination test (Maryland CNC), without the use of hearing aids. 38 C.F.R. § 4.85(a).

The Rating Schedule utilizes three tables to evaluate hearing impairment: Tables VI, VIA, and VII. Table VII is used to determine the percentage evaluation by combining Roman numeral designations for the level of hearing impairment in each ear. These Roman numeral designations are obtained from Tables VI or VIA. Table VI is based on a combination of puretone threshold average and speech discrimination percentage. The Roman numerals range from I to XI. A higher Roman numeral is assigned based on a combination of a higher puretone threshold average and a lower speech discrimination percentage. If the use of speech discrimination is not appropriate, then Table VIA is the appropriate source of the Roman numeral designation, which is based solely on puretone threshold average. 38 C.F.R. § 4.85(c). Puretone threshold average is the average of the puretone thresholds at the 1000, 2000, 3000, and 4000 Hertz (Hz) frequencies. 38 C.F.R. § 4.85(d).

Table VIA may be used for "exceptional patterns of hearing impairment," where the puretone thresholds at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hz) are 55 decibels (dB) or more, or where the puretone thresholds are 30 dB or less at 1000 Hz and 70 dB or more at 2000 Hz. 38 C.F.R. § 4.86.

Here, the Veteran underwent a September 2022 VA examination. At that time, he was given an audiometric evaluation which indicated puretone thresholds as follows:

HERTZ

1000 2000 3000 4000 Avg

Right 45 dB 65 dB 65 dB 70dB 61 dB

Left 40 dB 70 dB 70 dB 75 dB 64 dB

The average of the puretone thresholds findings at 1000, 2000, 3000, and 4000 Hz was 61 decibels in the right ear and 64 decibels in the left ear. The speech recognition scores on the Maryland CNC word list were 92 percent in the right ear and 80 percent in the left ear.

Left 40 dB 70 dB 70 dB 75 dB 64 dB

Applying the test results of the September 2022 audiological evaluation to Table VI of the Rating Schedule results in a Roman numeric designation of Level II in the right ear and Level IV in the left ear. 38 C.F.R. § 4.85, Table VI. Applying the Roman numeric designations to Table VII, the result is a noncompensable rating for the Veteran's service connected BHL. Table VIA was not used as no exceptional patterns of hearing impairment were noted.

The Board finds the September 2022 audiological evaluation is adequate for rating purposes and accurately reflects the current severity of the Veteran's BHL at that time. There is no other audiological evaluation within the relevant timeframe that is adequate for rating purposes and demonstrates a more severe hearing loss threshold. The mechanical application of the available audiological evaluation does not support a higher rating. The Veteran's symptoms are adequately contemplated by the rating schedule.

Accordingly, entitlement to an initial compensable rating is denied.

Grace J. Suh

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Johnson, Stephone B.

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.

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