Citation Nr: 1320187	
Decision Date: 06/21/13    Archive Date: 07/02/13

DOCKET NO.  09-37 085A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Lincoln, Nebraska


THE ISSUES

1.  Entitlement to an initial disability evaluation in excess of 50 percent for bilateral hearing loss disability prior to November 1, 2009.

2.  Entitlement to a disability evaluation in excess of 40 percent for bilateral hearing loss disability, to include restoration of a 50 percent disability evaluation, from November 1, 2009 to August 17, 2011.

3.  Entitlement to a disability evaluation in excess of 60 percent for a bilateral hearing loss disability from August 18, 2011.


REPRESENTATION

Appellant represented by:	The American Legion



WITNESS AT HEARING ON APPEAL

Veteran and spouse


ATTORNEY FOR THE BOARD

C.A. Skow, Counsel


INTRODUCTION

The Veteran served on active duty from January 1946 to April 1947.

This matter has come before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decisions of the Department of Veterans Affairs (VA) Regional Office in Lincoln, Nebraska (the RO).

In March 2010, the Veteran and his spouse testified at hearing before the undersigned Veterans Law Judge (VLJ).  A hearing transcript is associated with the claims files.

In July 2010 and January 2012, the Board remanded the case for additional evidentiary development.

It is noted that the RO granted in February 2013 the Veteran's claim for a total rating based on individual unemployability due to service-connected disability.  This is considered a full grant of the benefit sought and, therefore, there remains no controversy in this regard for the Board's consideration.  Cf. AB v. Brown, 6 Vet. App. 35 (1993).  Additionally, the record does not reflect that the Veteran has expressed disagreement with the effective date assigned for TIDU. 

In addition to the paper claims files, there is a Virtual VA electronic claims file associated with the Veteran's claim.  A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims files or are irrelevant to the issues on appeal.

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  38 U.S.C.A. § 7107(a)(2) (West 2002).


FINDINGS OF FACT

1.  Prior to November 1, 2009, the Veteran's hearing loss disability was manifested at worst by an average pure tone decibel loss of 73 with 72 percent speech discrimination in the right ear, and an average pure tone decibel loss of 121 with 0 percent speech discrimination in the left ear.

2.  From November 1, 2009 to August 17, 2011, the Veteran's hearing loss disability was manifested by an average pure tone decibel loss of 63.75 with 72 percent speech discrimination in the right ear, and an average pure tone decibel loss of 93.75 with 0 percent speech discrimination in the left ear.

3.  From August 18, 2011, the Veteran's hearing loss disability was manifested by an average pure tone decibel loss of 64 with 56 percent speech discrimination in the right ear, and an average pure tone decibel loss of 92 with 0 percent speech discrimination in the left ear.


CONCLUSIONS OF LAW

1.  The criteria for an initial evaluation in excess of 50 percent for bilateral hearing loss disability prior to November 1, 2009, are not met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.85, Tables VI, VIA, VII, Diagnostic Code 6100, 4.86 (2012).

2.  The criteria for an evaluation in excess of 40 percent, to include restoration of a 50 percent rating, for bilateral hearing loss disability from November 1, 2009, to August 17, 2011, are not met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.105. 4.85, Tables VI, VIA, VII, Diagnostic Code 6100, 4.86 (2012).

3.  The criteria for an evaluation in excess of 60 percent for bilateral hearing loss disability from August 18, 2011, are not met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.85, Tables VI, VIA, VII, Diagnostic Code 6100, 4.86 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Duties to Notify and Assist

The Veterans Claims Assistance Act (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim.  They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim.

As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant.  Although the regulation previously required VA to request that the claimant provide any evidence in the claimant's possession that pertains to the claim, the regulation has been amended to eliminate that requirement for claims pending before VA on or after May 30, 2008.

The Board also notes the United States Court of Appeals for Veterans Claims (Court) has held the plain language of 38 U.S.C.A. § 5103(a) requires notice to a claimant pursuant to the VCAA be provided "at the time" or "immediately after" VA receives a complete or substantially complete application for VA-administered benefits.  Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004).

VA has satisfied its duty to notify.  The Veteran's claims arise from his disagreement with the initial disability evaluation assigned following the grant of service connection for bilateral hearing loss disability.  The Veteran filed his claim in October 2008.  The RO provided him with a fully adequate VCAA letter in October 2008 prior rating decision on appeal.  In cases where service connection has been granted and an initial rating and effective date have been assigned, the typical service connection claim has been more than substantiated, it has been proven.  As a result, no additional 38 U.S.C.A. § 5103(a) notice is required because the purpose that the notice is intended to serve has been fulfilled.  Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007).  See also Overton v. Nicholson, 20 Vet. App. 427, 437 (2006) (A timing error may be cured by a new VCAA notification followed by readjudication of the claim).

VA further satisfied its duty to assist the Veteran in substantiating his claims.  All relevant medical records have been obtained and associated with the record.  It is noted that this case was remanded twice to obtain a copy of an audiological report dated June 1, 2009, as the VA treatment records included in the claims file referenced audiogram findings in a note dated on June 1, 2009-the Board presumed that the findings referenced were contemporaneous with the date of the examination report and findings.  However, a report of contact dated in February 2012 reflects that a representative of the RO contacted the Veteran who indicated that he had not undergone an audiological study on June 1, 2009.  Therefore, given the clarification now provided by the Veteran, the Board finds that all evidence potentially helpful to the Veteran and known to VA has been obtained in this matter.  Thus, the Board finds substantial compliance with the requirements articulated in the Board's prior remand decisions.  See Dyment v. West, 13 Vet. App. 141, 146-47 (1999).

Also, VA afforded the Veteran VA medical examinations.  The reports of examination described the hearing loss disability in sufficient detail so that the Board's "evaluation of the claimed disability will be a fully informed one."  Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (quoting Green v. Derwinski, 1 Vet. App. 121, 124 (1991).  See also, Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008); D'Aries v. Peake, 22 Vet. App. 97, 104 (2008).  In this regard, the Board observes that the VA examinations conducted during the course of the appeal, to include the most recent examination in August 2011, were performed by a neutral, skilled provider who reviewed the file and offered sufficient rationale for the conclusions reached.  The Board observes that in Martinak v. Nicholson, 21 Vet. App. 447   (2007), the Court noted that VA had revised its hearing examination worksheets to include the effect of the Veteran's hearing loss disability on occupational functioning and daily activities.  See Revised Disability Examination Worksheets, Fast Letter 07-10 (Dep't of Veterans Affairs Veterans Apr. 24, 2007); see also 38 C.F.R. § 4.10  (2011).  Here, the August 2011 examiner included a discussion of the effects of the Veteran's hearing loss, and the record otherwise includes the Veteran's statements concerning its effects.  The Veteran has not asserted that there is any deficiency in the VA examination. 

Lastly, VA afforded the Veteran a hearing on appeal.  A hearing transcript is associated with the claims file.  In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the VLJ who conducts a hearing fulfill two duties to comply with the above the regulation.  These duties consist of (1) the duty to fully explain the issue(s) and (2) the duty to suggest the submission of evidence that may have been overlooked.   Here, prior to going on the record the VLJ explained the issues on appeal.  It is noted that the Veteran was assisted at the hearing by an accredited representative from the American Legion who asked questions intended to elicit answers supporting the Veteran's claim for increase to include restoration of a 50 percent evaluation for hearing loss disability.  The VLJ further asked questions concerning outstanding evidence that may support the Veteran's assertion that a higher evaluation was warranted to include restoration of the 50 percent evaluation.  No pertinent evidence that might have been overlooked and that might substantiate the claim for restoration was identified by the Veteran or his representative.  Notwithstanding, the claims were subsequently remanded for further evidentiary development.  Therefore, the Board finds substantial compliance with 38 C.F.R. § 3.102(c)(2).

Accordingly, the Board will address the merits of the claim.

II.  Claims for Increase and Restoration

The Veteran seeks a rating to an initial disability rating in excess of 50 percent for bilateral hearing loss disability prior to November 1, 2009; in excess of 40 percent to include restoration of a 50 percent disability evaluation from November 1, 2009 to August 17, 2011; and in excess of 60 percent from August 18, 2011.

The record shows that the VA received an original claim for compensation in October 2008.  VA treatment records show that the Veteran presented to establish VA care for various conditions in November 2008, and that he sought to obtain hearing aids.  The Veteran underwent a VA audiological examination in February 2009.  A VA treatment note dated April 15, 2009, reflects findings for severe sensorineural hearing loss of both ears.  The speech discrimination findings noted speech discrimination of 72 percent in the right ear and 0 percent in the left ear.  The Veteran underwent another VA audiological examination in April 2009 and again in September 2009.  A June 2009 ENT consultation note reflects hearing loss and speech discrimination findings of 72 percent in the right ear and 0 percent in the left ear.  A June 2009 imaging study indicated asymmetric hearing loss and an impression for temporal lobe encephalomalacia, prior infarct or trauma.

It is noted that the RO assigned an initial 50 percent disability evaluation for bilateral hearing loss effective from October 9, 2008.  The Veteran appealed this initial evaluation.  Subsequently, in May 2009, the RO proposed to reduce the 50 percent evaluation to 30 percent and notified the Veteran by letter dated in May 2009.  VA received no response from the Veteran in regard to this notice.  In an August 2009 rating decision, the RO reduced the evaluation for bilateral hearing loss disability to 30 percent effective from November 1, 2009.  The RO notified the Veteran by letter dated in August 2000.  However, in a September 2009 Statement of the Case, the RO awarded a 40 percent evaluation effective from November 1, 2009.

Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary.  The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary.  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2012); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).  To deny a claim on its merits, the evidence must preponderate against the claim.  Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54.

      
Legal Criteria

Disability evaluations are determined by the application of the VA Schedule for Rating Disabilities (Rating Schedule).  38 C.F.R. Part 4.  The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.  If two evaluations are potentially applicable, the higher evaluation 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 evaluations may be assigned for separate periods of time based on the facts found.  In other words, the evaluations may be "staged."  Hart v. Mansfield, 21 Vet. App. 505 (2007) (staged ratings are appropriate when the factual findings show distinct period where the service- connected disability exhibits symptoms that would warrant different ratings.); see also Fenderson v. West, 12 Vet. App. 119, 126 (2001).  A disability may require re-evaluation in accordance with changes in a veteran's condition.  It is thus essential, in determining the level of current impairment, that the disability be considered in the context of the entire recorded history.  38 C.F.R. § 4.1.

In general, 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, 4.87, Tables VI, VIa, VII.  Organic impairment of hearing acuity is measured by the results of controlled speech discrimination tests together with the average hearing threshold level as measured by a pure tone audiometry test in the frequencies of 1,000, 2,000, 3,000, and 4,000 cycles per second.  See 38 C.F.R. § 4.85(a), (d).  Ratings of hearing loss disability involve mechanical application of the rating criteria to the findings on official audiometry.  See Lendenmann v. Principi, 3 Vet. App. 345 (1992).  The schedular evaluations are intended to make proper allowance for improvement by hearing aids.  38 C.F.R. § 4.86.  Exceptional patterns of hearing impairment are rated under 38 C.F.R. § 4.86.  An exceptional pattern of hearing exists where there is hearing loss of 55 decibels or more in each of the four specified frequencies (i.e. 1000, 2000, 3000, and 4000 Hertz), or where there is hearing loss with a pure tone threshold of 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz.  38 C.F.R. § 4.86(a), (b).

      Rating in Excess of 50 Percent Prior to November 1, 2009

After carefully reviewing the evidence of record, the Board finds that the preponderance of the evidence is against an initial rating in excess of 50 percent for bilateral hearing loss disability.  The evidence does not more nearly reflect the criteria for the next higher rating.  38 C.F.R. § 4.7.

The record includes several VA audiological studies.  The pure tone thresholds, in decibels, were as follows for the right and left ear (R/L), respectively:




HERTZ (dB)



Date of Test
1000
(R/L)
2000
(R/L)
3000
(R/L)
4000
(R/L)
Average
(R/L)
Speech
Discrimination
2/21/2009
65/90
70/95
80/105
75/105
73/121
72/0%
4/16/2009
50/75
55/80
70/105+
75/105+
62.5/91.25
80/0%
9/23/2009
55/85
60/80
70/105+
70/105+
63.75/93.75
72/0%

Applying 38 C.F.R. § 4.85, Table VI, to the February 2009 audiological findings, the Veteran has a numeric designation of VI for his right ear and XI for his left ear.  Application of 38 C.F.R. § 4.85, Table VII results in a finding that a 50 percent disability evaluation for the service-connected bilateral hearing loss is warranted.  

Applying 38 C.F.R. § 4.85, Table VI, to the April and September 2009 audiological findings, the Veteran has a numeric designation of V for his right ear and XI for his left ear.  Application of 38 C.F.R. § 4.85, Table VII results in a finding that a 40 percent disability evaluation for the service-connected bilateral hearing loss is warranted.

While an exceptional pattern of hearing loss as contemplated by 38 C.F.R. § 4.86(b) is not shown, the pure tone thresholds in February 2009 and September 2009 reflect an exceptional pattern of hearing loss as contemplated by 38 C.F.R. § 4.86(a) because the pure tone threshold at each of the four specified frequencies (1,000, 2,000, 3,000, and 4,000 Hertz) is 55 decibels or more.  When applying the results from the February 2009 audiological findings to Table VIA (level VI hearing in the right ear and level XI hearing in the left ear), the Board observes that the result is a 50 percent evaluation.  When applying the results from the September 2009 audiological findings to Table VIA (level V hearing in the right ear and level IX hearing in the left ear), the Board observes that the result is a 40 percent evaluation.

The medical findings of record do not support the assignment of an initial disability evaluation in excess of 50 percent for bilateral hearing loss for the period prior to November 1, 2009, under the applicable schedular criteria, discussed above.

      Rating in Excess of 40 Percent from November 1, 2009 to August 17, 2011

When the RO seeks to reduce a disability evaluation, certain procedural requirements must be followed as set out at 38 C.F.R. § 3.105(e).  As an initial matter, the Board finds that the RO complied with the procedural requirements of 38 C.F.R. § 3.105(e).  The RO provided the Veteran proper notice of the proposed rating action, including the overall combined rating reduction, and the Veteran was given the opportunity to respond.  The reduction was accomplished in an August 2009 rating decision, effective November 1, 2009.  Thus, the RO complied with the provisions of 38 C.F.R. § 3.105(e).

Because the Veteran's hearing loss disability rating was in effect less than five years, the provisions of 38 C.F.R. § 3.344 pertaining to stabilized ratings are not applicable.  See 38 C.F.R. § 3.344(c) (2012) (reexaminations disclosing improvement in disabilities that have not become stabilized will warrant reduction in rating).

Furthermore, the Board notes that this appeal arises from the initial disability evaluation assigned for the Veteran's hearing loss disability.  The United States Court of Appeals for Veterans Claims (Court) has held that in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings.  See Hart v. Mansfield, 21 Vet. App. 505 (2007).  In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. 

Having reviewed the evidence of record, the Board finds that the preponderance of the evidence is against the assignment of a rating in excess of 40 percent to include the restoration of a 50 percent rating for the period from November 1, 2009, to August 17, 2011.  The evidence does not more nearly reflect the criteria for the next higher rating.  38 C.F.R. § 4.7.  As explained above, the audiological findings dated in April and September 2009 correspond to 40 percent rating under 38 C.F.R. § 4.85, Table VII.  Also, when applying the results from the September 2009 audiological findings to Table VIA (level V hearing in the right ear and level IX hearing in the left ear), the Board observes that the result is a 40 percent evaluation.

Accordingly, the claim for an evaluation in excess of 40 percent to include restoration of a 50 percent evaluation for the period from November 1, 2009, to August 18, 2011, is denied.  As the evidence is not in equipoise, the benefit-of-the-doubt doctrine does not apply.  38 U.S.C.A. § 5107(b); Gilbert, supra.

      Rating in Excess of 60 Percent from August 18, 2011

After carefully reviewing the evidence of record, the Board finds that the preponderance of the evidence is against a disability rating in excess of 60 percent for bilateral hearing loss disability from August 18, 2011.  The evidence does not more nearly reflect the criteria for the next higher rating.  38 C.F.R. § 4.7.

Report of VA audiological examination dated in August 2011 reflects that audiometric findings for pure tone thresholds, in decibels, were as follows:





HERTZ



1000
2000
3000
4000
Average
RIGHT
55
60
70
70
64
LEFT
80
80
105+
105+
92

Speech audiometry revealed speech recognition ability of 56 percent in the right ear and of 0 percent in the left ear.

Applying 38 C.F.R. § 4.85, Table VI, to the August 2011 audiological findings, the Veteran has a numeric designation of VII for his right ear and XI for his left ear.  Application of 38 C.F.R. § 4.85, Table VII results in a finding that a 60 percent disability evaluation for the service-connected bilateral hearing loss is warranted.

While an exceptional pattern of hearing loss as contemplated by 38 C.F.R. § 4.86(b) is not shown, the pure tone thresholds in August 2011 reflect an exceptional pattern of hearing loss as contemplated by 38 C.F.R. § 4.86(a) because the pure tone threshold at each of the four specified frequencies (1,000, 2,000, 3,000, and 4,000 Hertz) is 55 decibels or more.  When applying the results from the August 2011 audiological findings to Table VIA (level V hearing in the right ear and level XI hearing in the left ear), the Board observes that the result is a 40 percent evaluation.

Accordingly, the claim is denied.  Absent a relative balance of the evidence, the evidence is not in equipoise and the benefit-of-the-doubt doctrine does not apply.  38 U.S.C.A. § 5107(b); Gilbert, supra.

      Extraschedular Consideration

The Board has also considered whether the case should be referred to the Director of the VA Compensation and Pension Service for extra-schedular consideration under 38 C.F.R. § 3.321(a).  In determining whether a case should be referred for extra-schedular consideration, the Board must compare the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for disability.
In Martinak v. Nicholson, 21 Vet. App. 447, 453-4   (2007), the Court held that a VA audiologist must fully describe the functional effects caused by a hearing disability in the final report of the examination to facilitate determinations regarding extraschedular consideration.  The Court noted that, unlike the rating schedule for hearing loss disability, 38 C.F.R. § 3.321(b) does not rely exclusively on objective test results to determine whether an extraschedular rating is warranted.  See Martinak, 21 Vet. App. at 455. 

Notably, the August 2011 VA examiner specified that the Veteran's hearing loss impacted his ordinary conditions of daily life.  He stated that he had a great deal of difficulty understanding conversation speech, even with his hearing aids.  Likewise, the September 2009 examiner noted that the Veteran reported no significant problems at work regarding his hearing as he worked primarily by himself.  The April 2009 examination noted significant effects on the Veteran's occupation with the impact being identified as "hearing difficulty."   Similarly, the February 2009 examiner noted that the Veteran had difficulty daily due to the severity of his hearing loss and lack of localization of sound.  Based on these reported descriptions of the functional effects of the Veteran's hearing loss disability, the Board finds that the VA examination reports are in compliance with Martinak, and that the evidence of record is sufficient for the Board to consider whether referral for an extraschedular rating is warranted under 38 C.F.R. § 3.321(b)  .

Under Thun v. Peake, 22 Vet App 111 (2008), decided after the Court's decision in Martinak, there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating.  First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.  Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms."  Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the veteran's disability picture requires the assignment of an extraschedular rating.

With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the service-connected bilateral hearing loss disability is inadequate.  A comparison between the levels of severity and symptomatology of the Veteran's hearing loss with the established criteria found in the rating schedule for hearing loss shows that the rating criteria reasonably describes the Veteran's disability level and symptomatology; as discussed above, the rating criteria considers puretone decibel hearing loss and speech discrimination hearing loss.  

The Board acknowledges that the Veteran has significant impairment due to his hearing loss disability.  The available schedular evaluation adequately contemplates the Veteran's level of disability and symptomatology.  Thus, the second and third questions posed by Thun become moot.  In any event, the Board observes that, even if the available schedular evaluation for the Veteran's hearing loss disability were inadequate [which it manifestly is not], the Veteran does not exhibit other related factors such as those provided by the regulation as "governing norms," nor does he so contend. 

The Board has been unable to identify an exceptional or unusual disability picture, and neither has the Veteran.  As noted above, the Veteran has reported that he has trouble hearing even with his hearing aids, difficulty hearing in crowds, and difficulty hearing other cars while driving.   The Board however finds that these functional effects caused by the Veteran's hearing disability, which undoubtedly exist, do not constitute any exceptional or unusual disability picture warranting consideration of an extraschedular rating.

In short, there is nothing in the record to indicate that the Veteran's service-connected hearing loss disability causes impairment with employment over and above that which is contemplated in the assigned schedular rating. The Board therefore has determined that referral of this case for extraschedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted.

	Lay Statements

In reaching the above conclusions, the Board has considered the Veteran's statements and sworn testimony.  In this regard, the Veteran is competent to report on factual matters of which he had firsthand knowledge, e.g., difficulty hearing.  See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005).  Lay evidence was provided by the Veteran during the course of his VA examinations as well as his hearing before the Board.  The Veteran is competent to report his current symptomatology as it pertains to his hearing loss and the Board finds that the Veteran's statements are credible.  With respect to the Rating Schedule, where the criteria set forth therein require medical expertise, or in this case audiological expertise, which the Veteran has not been shown to have or where these types of findings are not readily observable by a lay person, the Board has accorded greater probative weight to objective medical findings and opinions provided by the Veteran's VA examination report.  See Espiritu v. Derwinski, 2 Vet. App. 492   (1992); see also Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993) ("[t]he probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches. . . the credibility and weight to be attached to these opinions [are] within the province of the adjudicator.").  The Board has considered the Veteran's reports with respect to experiencing symptoms in evaluating his disability rating in this decision. 

The Board recognizes the Veteran's apparent dissatisfaction with the disability ratings assigned.  However, pursuant to the dictates of 38 C.F.R. § 4.85  and Lendenmann, in determining the above rating, the Board has engaged in, as it must, a "mechanical," objective application of the numerical data generated from the veteran's audiological examinations. See Lendenmann, 3 Vet. App. at 349. In this regard, the Board exercises no discretion, and simply must apply the test score numbers to the relevant Tables.  See 38 C.F.R. § 4.85(b)-(e); accord Lendenmann, supra, at 349.  As noted above, the Board lacks the authority to operate outside the bounds of applicable regulatory provisions, including the guidelines for the assignment of disability ratings set forth in 38 C.F.R. § 4.85 . See 38 U.S.C.A. § 7104; 38 C.F.R. § 20.101(a).

While the Board empathizes with the Veteran's impairment, and does not dispute the fact that he has a bilateral hearing loss disability, the Board must conclude, based on the results of mandatory auditory tests and the mechanical application of relevant regulations by which the Board is bound, that the level of his disability does not rise to a rating higher than 0 percent at any time in the period prior to November 29, 2009.  See 38 C.F.R. § 4.85(b)-(e); see also 38 U.S.C.A. § 7104; 38 C.F.R. § 20.101(a); see Hart v. Mansfield, 21 Vet. App. 505 (2007).  That is to say, the Veteran's disability has been no more than 50 percent disabling during the period prior to November 1, 2009.  Absent a relative balance of the evidence, the evidence is not in equipoise and the benefit-of-the-doubt doctrine does not apply.  38 U.S.C.A. § 5107(b); Gilbert, supra.


ORDER

An initial disability rating in excess of 50 percent for bilateral hearing loss disability prior to November 1, 2009, is denied.

A disability rating in excess of 40 percent for bilateral hearing loss disability, to include restoration of a 50 percent disability evaluation, from November 1, 2009 to August 17, 2011, is denied.

A disability rating in excess of 60 percent for a bilateral hearing loss disability from August 18, 2011, is denied.



____________________________________________
DAVID L. WIGHT
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs