Citation Nr: 18154149
Decision Date: 11/29/18	Archive Date: 11/29/18

DOCKET NO. 13-25 441A
DATE:	November 29, 2018
ORDER
An initial compensable rating for bilateral hearing loss is denied.
FINDING OF FACT
For the entire appeal period, the Veteran’s bilateral hearing loss is manifested by no worse than Level II hearing in the right ear and no worse than Level III hearing in the left ear.
CONCLUSION OF LAW
The criteria for an initial compensable rating for bilateral hearing loss have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R §§ 4.1, 4.2, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100.
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran served on active duty service from January 1967 to January 1970.  This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO).  In July 2017, the Board remanded the case for additional development and it now returns for further appellate review.  
Entitlement to an initial compensable rating for bilateral hearing loss. 
The Veteran claims that his bilateral hearing loss is more severe than as reflected by the currently assigned noncompensable rating.  Therefore, he contends that he is entitled to a higher rating for such disability. 
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.  Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work.  38 C.F.R. § 4.2.  All reasonable doubt will be resolved in the claimant’s favor. 38 C.F.R. § 4.3.  Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating is to be assigned.  38 C.F.R. § 4.7.
Separate ratings can be assigned for separate periods based on the facts found - a practice known as “staged” ratings.  Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).  Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings.  Id.
The Veteran’s service-connected bilateral hearing loss has been assigned a noncompensable rating under 38 C.F.R. § 4.85, Diagnostic Code 6100, as of January 18, 2011.  
Ratings of hearing loss range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of speech discrimination tests combined with the average hearing threshold levels as measured by pure tone audiometry tests in the frequencies 1000, 2000, 3000, and 4000 cycles per second.  To rate the degree of disability for service-connected hearing loss, the Rating Schedule has established eleven auditory acuity levels, designated from level I, for essentially normal acuity, through level XI, for profound deafness.  38 C.F.R. § 4.85(h), Table VI.  In order to establish entitlement to a compensable rating for hearing loss, it must be shown that certain minimum levels of the combination of the percentage of speech discrimination loss and average pure tone decibel loss are met.  The assignment of disability ratings for hearing impairment is derived by a mechanical application of the Rating Schedule to the numeric designations assigned after audiometric evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992).
The criteria for rating hearing impairment use controlled speech discrimination tests (Maryland CNC) together with the results of pure tone audiometry tests.  These results are then charted on Table VI, Table VIA, in exceptional cases as described in 38 C.F.R. § 4.86, and Table VII, as set out in the Rating Schedule.  38 C.F.R. § 4.85.  An exceptional pattern of hearing loss occurs when the pure tone threshold at 1000, 2000, 3000, and 4000 Hertz is 55 decibels or more, or when the pure tone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz. 38 C.F.R. § 4.86.
VA treatment records dated throughout the appeal period reflect the Veteran’s complaints of bilateral hearing loss and the receipt of hearing aids.  However, the audiometric findings noted therein are consistent with those documented upon VA examination in March 2012, August 2013, and September 2017, and do not include audiometric findings that suggest that a higher degree of impairment of hearing acuity exists at any point during the appeal period. 
In this regard, at a VA audiological examination in March 2012, the pure tone thresholds in decibels at the tested frequencies of 1000, 2000, 3000, and 4000 Hz were 20, 35, 85, and 80, respectively, in the right ear, and were 25, 40, 70, and 70, respectively, in the left ear.  The examiner noted that the pure tone threshold average in the right ear was 55 decibels and the average in the left ear was 51 decibels.  Speech discrimination was 96 percent in the right ear and 92 percent in the left ear.  At such time, the examiner indicated that the Veteran reported difficulty with communicating and understanding individuals in crowds, especially individuals with high-pitched voices.  
For the right ear, the average pure tone threshold of 55 decibels, along with a speech discrimination percentage of 96, warrants a designation of Roman Numeral I under Table VI of 38 C.F.R. § 4.85.  For the left ear, the average pure tone threshold of 51 decibels, along with a speech discrimination percentage of 92, warrants a designation of Roman Numeral I under Table VI of 38 C.F.R. § 4.85.  No exceptional pattern of hearing loss is shown.  Under Table VII of 38 C.F.R. § 4.85, where the right ear is Roman Numeral I, and the left ear is Roman Numeral I, the appropriate rating is 0 percent under Diagnostic Code 6100.
On VA audiological examination in August 2013, the pure tone thresholds in decibels at the tested frequencies of 1000, 2000, 3000, and 4000 Hz were 20, 45, 75, and 80, respectively, in the right ear, and were 25, 50, 70, and 75, respectively, in the left ear.  The examiner noted that the pure tone threshold average in the right ear was 55 decibels and the average in the left ear was 55 decibels.  Speech discrimination was 96 percent in the right ear and 92 percent in the left ear.  At such time, the examiner indicated that the Veteran reported difficulty with hearing his wife and others during conversation.  
For the right ear, the average pure tone threshold of 55 decibels, along with a speech discrimination percentage of 96, warrants a designation of Roman Numeral I under Table VI of 38 C.F.R. § 4.85.  For the left ear, the average pure tone threshold of 55 decibels, along with a speech discrimination percentage of 92, warrants a designation of Roman Numeral I under Table VI of 38 C.F.R. § 4.85.  No exceptional pattern of hearing loss is shown.  Under Table VII of 38 C.F.R. § 4.85, where the right ear is Roman Numeral I, and the left ear is Roman Numeral I, the appropriate rating is 0 percent under Diagnostic Code 6100.
In accordance with the Board’s July 2017 remand, the Veteran underwent a VA audiological examination in September 2017.  The pure tone thresholds in decibels at the tested frequencies of 1000, 2000, 3000, and 4000 Hz were 20, 45, 90, and 85, respectively, in the right ear, and were 25, 55, 75, and 80, respectively, in the left ear.  The pure tone threshold average in the right ear was 60 decibels and the average in the left ear was 59 decibels.  Speech discrimination was 96 percent in the right ear and 84 percent in the left ear.  At such time, the examiner indicated that the Veteran reported that he felt his hearing was worse as he had more difficulty understanding speech, especially when background noise was present, which impacted his ability to work.    
For the right ear, the average pure tone threshold of 60 decibels, along with a speech discrimination percentage of 96, warrants a designation of Roman Numeral II under Table VI of 38 C.F.R. § 4.85.  For the left ear, the average pure tone threshold of 59 decibels, along with a speech discrimination percentage of 84, warrants a designation of Roman Numeral III under Table VI of 38 C.F.R. § 4.85.  No exceptional pattern of hearing loss is shown.  Under Table VII of 38 C.F.R. § 4.85, where the right ear is Roman Numeral II, and the left ear is Roman Numeral III, the appropriate rating is 0 percent under Diagnostic Code 6100.
To the extent that the Veteran contends that his bilateral hearing loss is more severe than currently evaluated, the Board observes that the Veteran, while competent to report symptoms capable of lay observation, to include difficulty with communicating and understanding individuals, especially those with high-pitched voices, when background noise was present or in a crowd, he is not competent to report that his hearing acuity is of sufficient severity to warrant a 10 percent or greater evaluation under VA’s tables for rating hearing loss disabilities because such an opinion requires medical expertise (training in evaluating hearing impairment), which he has not been shown to have.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2006); Charles v. Principi, 16 Vet. App. 370 (2002); Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). 
Despite the foregoing, the Board acknowledges the Veteran’s aforementioned reports of the difficulties associated with his bilateral hearing loss.  However, even after considering such contentions as to the effects of the disability on his daily life, the Board finds that the criteria for a compensable evaluation are not met.  See Lendenmann, supra (assignment of disability ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered).  
In this regard, in Doucette v. Shulkin, 28 Vet. App. 366 (2017), the United States Court of Appeals for Veterans Claims held that the rating criteria for hearing loss contemplate the functional effects of decreased hearing and difficulty understanding speech in an everyday work environment as these are the effects that VA’s audiometric tests are designed to measure.  The Veteran has not otherwise described functional effects that are considered exceptional, or that are not otherwise contemplated by the assigned evaluation. Id.  Thus, his complete disability picture is compensated under the rating schedule.  
The Board also acknowledges the Veteran’s report that his hearing loss impacted his ability to work at the September 2017 VA examination; however, as noted previously, at such time, the effects of such disability were described as difficulty understanding speech, especially when background noise was present, which are entirely contemplated by the rating criteria. Id.  Furthermore, a December 2017 VA treatment record reflects that the Veteran is currently a full-time evangelist and part-time mechanic.  Consequently, the Board finds that neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record.  Id. (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record); Rice v. Shinseki, 22 Vet. App. 447 (2009).
The Board has also considered whether staged ratings under Fenderson, supra, are appropriate for the Veteran’s service-connected bilateral hearing loss; however, the Board finds that his symptomatology has been stable throughout the appeal period.  Therefore, assigning staged ratings for such disability is not warranted. 
Therefore, the Board finds that an initial compensable rating for bilateral hearing loss is not warranted.  In reaching such determination, the Board has considered the applicability of the benefit of the doubt doctrine.  However, the preponderance of the evidence is against the Veteran’s claim.  Therefore, the benefit of the doubt doctrine is not applicable in the instant appeal and his initial rating claim must be denied.  See 38 U.S.C. § 5107; 38 C.F.R. §§4.3, 4.7. 
 
A. JAEGER
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	Koria B. Stanton, Associate Counsel 

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

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