Citation Nr: 18160635
Decision Date: 12/28/18	Archive Date: 12/27/18

DOCKET NO. 16-53 615A
DATE:	December 28, 2018
ORDER
Entitlement to an increased rating in excess of 0 percent for service-connected bilateral hearing loss.
FINDING OF FACT
The Veteran’s bilateral hearing impairment has been Level I for the right ear and Level I for the left ear, and Level I for the right ear and Level II for the left ear.
CONCLUSION OF LAW
The criteria for a compensable rating for a bilateral hearing loss disability have not been met or approximated.  38 U.S.C. § 1155 (West 2012); 38 C.F.R. § 3.321, 4.1, 4.3, 4.7, 4.10, 4.85, Diagnostic Code 6100, 4.86 (2017).
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran served on active duty in the United States Navy from November 1961 to October 1964.  
1. Entitlement to an increased rating in excess of 0 percent for service-connected bilateral hearing loss.
Increased Rating Claim
Disability ratings are determined by the application of a schedule of ratings that is based on average impairment of earning capacity.  38 U.S.C. § 1155 (West 2012).  Percentage ratings are determined by comparing the manifestations of a particular disability with the requirements contained in VA’s Schedule for Rating Disabilities.  The percentage ratings contained in the Rating Schedule represent, as far as can practically be determined, the average impairment in earning capacity resulting from a disease or injury and the residual conditions in civilian occupations.  38 U.S.C. § 1155; 38 C.F.R. § 4.1.
If two ratings are potentially applicable, the higher rating 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.  In view of the number of atypical instances, it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified.  38 C.F.R. § 4.21.  It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent with the facts shown in every case.  Any reasonable doubt regarding the degree of disability is resolved in favor of the Veteran.  38 C.F.R. § 3.102, 4.3.
In evaluating the severity of a particular disability, it is essential to consider its history.  38 C.F.R. § 4.1 (2017); Peyton v. Derwinski, 1 Vet. App. 282 (1991).  Where, as here, entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance.  Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  However, higher evaluations may be assigned for separate periods based on the facts found during the appeal period.  Hart v. Mansfield, 21 Vet. App. 505 (2008).  This practice is known as staged ratings.  Id.  
The assignment of a disability rating for hearing loss is derived by a mechanical application of the rating schedule to the specific numeric designations assigned after audiology testing is completed.  Lendenmann v. Principi, 3 Vet. App. 345 (1992).  An examination for hearing impairment for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a puretone audiometry test.  38 C.F.R. § 4.85. 
The rating schedule establishes 11 auditory hearing acuity levels based upon average puretone thresholds and speech discrimination.  See 38 C.F.R. § 4.85.  “Puretone threshold average” as used in Tables VI and VIa is the sum of the puretone thresholds at 1000, 2000, 3000 and 4000 Hertz and divided by four.  This average is used in all cases (including those of §4.86) to determine a Roman numeral designation from Tables VI and VIa.  38 C.F.R. §4.85 (d).
Table VI, “Numeric Designation of Hearing Impairment Based on Puretone Threshold Average and Speech Discrimination,” is used to determine a Roman numeral designation (I through XI) for hearing impairment based on a combination of the percent of speech discrimination (horizontal rows) and the puretone threshold average (vertical columns).  The Roman numeral designation is located at the point where the row and column intersect.  38 C.F.R. § 4.85 (b).
Table VIa, “Numeric Designation of Hearing Impairment Based Only on Puretone Threshold Average,” is used to determine a Roman numeral designation (I through XI) for hearing impairment based only on puretone threshold average.  Table VIa is used when the examiner certifies that the use of the speech discrimination test is not appropriate due to language difficulties, inconsistent speech discrimination scores, etc., or when indicated under the provisions of § 4.86.  38 C.F.R. § 4.85 (c).
Table VII, “Percentage Evaluations of Hearing Impairment,” is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment in each ear.  The horizontal rows represent the ear having better hearing and the vertical columns represent the ear having the poorer hearing.  The percentage evaluation is located at the point where the row and the column intersect.  38 C.F.R. § 4.85 (e).
Special provisions apply in instances of exceptional hearing loss.  See 38 C.F.R. § 4.86.  When the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) are all 55 decibels or more, the adjudicator must determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa in 38 C.F.R. § 4.85, whichever results in the higher numeral.  38 C.F.R. § 4.86 (a). 
Also, when the puretone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral.  That numeral will then be elevated to the next higher Roman numeral.  Each ear is evaluated separately.  38 C.F.R. § 4.86 (b).
Legal Analysis and Conclusion
The Veteran’s service-connected bilateral hearing loss symptomatology did not more nearly approximate that required for a higher rating in excess of 0 percent under Diagnostic Code 6100.
The Veteran was provided with a VA audiological examination in March 2013.  The results of the March 2013 audiological diagnostic test, as measured by puretone audiometry test, are: (1) for the Veteran’s right ear: 30, 30, 35, 65 and 65 decibels at 500, 1000, 2000, 3000 and 4000 Hertz, respectively, and (2) for the Veteran’s left ear, 20, 20, 20, 40, and 50 decibels at 500, 1000, 2000, 3000 and 4000 Hertz, respectively.  Based on these results, the average puretone threshold was 48.75 decibels for the right ear and 32.5 decibels for the left ear.  See 38 C.F.R. § 4.85 (d).  Speech recognition was 96 percent for the right ear and 92 percent for the left ear, as measured by the Maryland CNC test.  From applying these values to Table VI, the result is a Level I Roman numeral designation for the right ear and a Level I for the left ear.  When the designations of Level I for the right ear and Level I for the left ear are applied to Table VII, the result is a 0-percent rating.
The Veteran was provided with another VA audiological examination in April 2014.  The results of the April 2014 audiological diagnostic test, as measured by puretone audiometry test, are: (1) for the Veteran’s right ear: 35, 30, 45, 70 and 75 decibels at 500, 1000, 2000, 3000 and 4000 Hertz, respectively, and (2) for the Veteran’s left ear, 35, 30, 40, 65, and 65 decibels at 500, 1000, 2000, 3000 and 4000 Hertz, respectively.  Based on these results, the average puretone threshold was 52.5 decibels for the right ear and 50 decibels for the left ear.  See 38 C.F.R. § 4.85 (d).  Speech recognition was 92 percent for the right ear and 90 percent for the left ear, as measured by the Maryland CNC test.  From applying these values to Table VI, the result is a Level I Roman numeral designation for the right ear and a Level II for the left ear.  When the designations of Level I for the right ear and Level II for the left ear are applied to Table VII, the result is a 0-percent rating.
The Veteran was provided with another VA audiological examination in January 2017.  The results of the January 2017 audiological diagnostic test, as measured by puretone audiometry test, are: (1) for the Veteran’s right ear: 25, 35, 40, 70 and 70 decibels at 500, 1000, 2000, 3000 and 4000 Hertz, respectively, and (2) for the Veteran’s left ear, 25, 35, 30, 50, and 55 decibels at 500, 1000, 2000, 3000 and 4000 Hertz, respectively.  Based on these results, the average puretone threshold was 54 decibels for the right ear and 42 decibels for the left ear.  See 38 C.F.R. § 4.85 (d).  Speech recognition was 92 percent for the right ear and 92 percent for the left ear, as measured by the Maryland CNC test.  From applying these values to Table VI, the result is a Level I Roman numeral designation for the right ear and a Level I for the left ear.  When the designations of Level I for the right ear and Level I for the left ear are applied to Table VII, the result is a 0-percent rating.
VA treatment records from December 2012 forward reflect on-going audiological treatment.  However, no further adequate objective audiometric testing results are of record.  
The Board has also considered the Veteran’s lay statements, in which he generally contends that his hearing is worse than currently rated.  However, as indicated above, rating a hearing loss disability involves the mechanical application of rating criteria to the results of specified audiometric studies.  Here, the objective medical evidence of record consists of the March 2013, April 2014 and January 2017 VA audiological examinations, which show that the Veteran’s hearing loss approximates a 0 percent rating.  See 38 C.F.R. § 4.85.  
Based on the objective medical evidence of record, specifically the VA audiological examinations dated March 2013, April 2014 and January 2017, the Board finds that the Veteran’s service-connected bilateral hearing loss does not rise to a compensable disability rating.  The preponderance of the evidence is against entitlement to a higher rating.  The benefit-of- the-doubt rule is not applicable here.
Furthermore, all potentially applicable codes have been considered, and there is no basis to assign an evaluation in excess of the currently assigned ratings for the Veteran’s bilateral hearing loss.  See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991).  
Additionally, staged ratings are not warranted, as any increases in severity were not sufficient for a higher rating for the reasons discussed above.  See Fenderson, 12Vet. App. at 126-27.
In this regard, the Board in no way discounts the difficulties that the Veteran experiences as a result of his hearing loss.  However, it must be emphasized, as previously noted, that the disability ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designation assigned after audiometry results are obtained.  Hence, the Board must base its determination on the results of the pertinent VA audiology studies.  See Lendenmann, 3. Vet. App. at 345.  In other words, the Board is bound by law to apply VA’s rating schedule based on the Veteran’s audiometry results.  See 38 U.S.C. § 1155; 38 C.F.R. § 4.1.  Under these circumstances, the Board finds that the record presents no basis for assignment of a disability rating higher than the 0 percent disability rating assigned for the Veteran’s service-connected hearing loss.  Therefore, the Veteran’s claim for an evaluation in excess of 0 percent for bilateral hearing loss is denied.  See Lendenmann, 3 Vet. App. at 349.
Extraschedular & Other Considerations
Moreover, consideration has been given regarding whether the schedular rating is inadequate for these disabilities, requiring that the RO refer a claim to the Chief Benefits Director or the Director of the Compensation and Pension Service for consideration of extraschedular rating under 38 C.F.R. § 3.321(b)(1).  See also December 2018 Appellate Brief (requesting extraschedular rating consideration).
First, a determination must be made as to whether the schedular criteria reasonably describe the severity and symptoms of the claimant’s disability.  If the schedular rating criteria reasonably describe the severity and symptoms of the Veteran’s disability, referral for extraschedular consideration is not required and the analysis stops.  Second, if the schedular rating criteria do not reasonably describe a veteran’s level of disability and symptomatology, a determination must be made as to whether an exceptional disability picture includes other “related factors,” such as marked interference with employment and frequent periods of hospitalization.  If an exceptional disability picture including such factors as marked interference with employment and frequent periods of hospitalization exists, the matter must be referred to the Under Secretary for Benefits or the Director of the Compensation Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating.  Thun v. Peake, 22 Vet. App. 111 (2008).
The Board finds that the first Thun element is not satisfied here.  Throughout the appeal period the Veteran has reported decreased hearing in the ears.  However, these signs and symptoms, and their resulting impairment, are explicitly contemplated by the rating schedule under Diagnostic Code 6100 (for hearing loss), for which the Veteran is currently service-connected.  See Doucette v. Shulkin, 28 Vet. App. 366, 369-7 (2017) (“[W]hen a claimant's hearing loss results in an inability to hear or understand speech or to hear other sounds in various contexts, those effects are contemplated by the schedular rating criteria.”  In short, there is nothing exceptional or unusual about the Veteran’s hearing loss.  Accordingly, referral for extraschedular consideration is not required and the analysis stops under Thun.  
The Board also finds that neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record.  See Doucette v. Shulkin, 28 Vet. App. at 369-7 (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).


 
YVETTE R. WHITE
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	C. J. Cho, 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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