Citation Nr: 1342956 Decision Date: 12/26/13 Archive Date: 01/07/14 DOCKET NO. 09-22 205 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to a compensable disability evaluation for bilateral hearing loss. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Kristi L. Gunn, Counsel INTRODUCTION The Veteran served on active duty from March 1963 to January 1967. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The Board notes that during the course of the appeal, the Veteran's claims file was temporarily brokered to the St. Louis, Missouri, VA Regional Office. The Board has reviewed the contents of the Veteran's Virtual VA file and found that it contains additional medical evidence that has been considered by the RO in the most recent supplemental statement of the case (SSOC) dated September 2012. In July 2013, the Veteran testified at a personal hearing before the undersigned Veterans Law Judge. A copy of the transcript is of record. At the hearing, the Veteran waived initial RO consideration of the new evidence submitted in conjunction with the hearing. 38 C.F.R. § 20.1304 (c). In August 2012 and February 2013, the Board remanded the claim for additional development and adjudicative action. The case has been returned to the Board for further appellate review. FINDING OF FACT At worst, the Veteran has Level II hearing loss in the right ear and Level I hearing loss in the left ear. CONCLUSION OF LAW The criteria for a compensable disability evaluation for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.85, 4.86, Diagnostic Code 6100 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Introductory Matters In this decision, the Board will discuss the relevant law which it is required to apply. This includes statutes enacted by Congress and published in Title 38, United States Code ("38 U.S.C.A."); regulations promulgated by VA under the law and published in the Title 38 of the Code of Federal Regulations ("38 C.F.R.") and the precedential rulings of the United States Court of Appeals for the Federal Circuit (Federal Circuit) (as noted by citations to "Fed. Cir.") and the United States Court of Appeals for Veterans Claims (Court) (as noted by citations to "Vet. App."). The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. 38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); see also Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990) (the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction. The Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts). Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 ("VCAA") describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim, and to indicate which information and evidence VA will obtain and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VA has satisfied its duty to notify by issuing a pre-adjudication notice letter in February 2007. This letter advised the Veteran of what evidence was required to substantiate his claim, and of his and VA's respective duties for obtaining evidence. This letter provided notice informing the Veteran that to substantiate his increased evaluation claim, he needed to submit evidence that his service-connected disability had increased in severity. The letter also advised him as to how disability ratings and effective dates are assigned. With regard to the notice requirements pertaining to an increased-rating claim, there need only be generic notice advising the Veteran of the evidentiary and legal criteria for establishing his entitlement to a higher rating, not also citation to alternative diagnostic codes or potential "daily life" evidence, etc. See Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1277 (2009), overruling Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). With respect to the timing of VCAA notice, the United States Court of Appeals for Veterans Claims (Court) and Federal Circuit Court have held that VCAA notice should be provided to a claimant before the initial unfavorable RO decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006) (Mayfield II); Pelegrini II, 18 Vet. App. at 120. In the present case, the RO issued the required VCAA notice prior to the May 2007 rating decision on appeal. Thus, there is no timing error. With respect to the duty to assist, the RO has secured the Veteran's service treatment records (STRs), VA treatment records, and reports of VA examinations in March 2007, July 2008, February 2011, and August 2012. Although the March 2007 and February 2011 examiners were not provided with the Veteran's claims file to review, and they did not indicate that his medical records were reviewed. However, the examinations are adequate because the examiners' findings reflect the current severity of his disability and the medical evidence in his claims file is not such that it would change the outcome of the examiners' findings. The evidence in the claims file reflects treatment for bilateral hearing loss, but the examiners obtained this history accurately from the Veteran during his examinations. The Veteran testified at a July 2013 travel board hearing before a VLJ. Under 38 C.F.R. § 3.103(c)(2) (2012), it is the responsibility of the hearing officer to explain fully the issues and suggest the submission of evidence which the claimant may have overlooked and which would be of advantage to the claimant's position. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that the hearing officer has two distinct duties under section 3.103(c)(2). First, the hearing officer must explain fully the issues still outstanding that are relevant and material to substantiating the claim by explicitly identifying them for the claimant. Id. at 496 (finding that a hearing officer's inquiries regarding the existence of a current disability and a nexus to service did not equate to explaining to the claimant that these issues were material to substantiating the claim). Second, the hearing officer must suggest that a claimant submit evidence on an issue material to substantiating the claim when such evidence is missing from the record or when the testimony at the hearing raises an issue for which there is no evidence in the record. Id. at 496-97. The Court also observed that the rule of prejudicial error applies in assessing any deficiency with respect to the hearing officer's duties under section 3.103(c). Id. at 498. Citing Sanders, 556 U.S. at 407, 410, the Court noted that the rule of prejudicial error requires a case-by-case determination as to whether the error in question was harmless. Id. Thus, in Bryant, 23 Vet. App. at 498-99, the Court held that although the hearing officer did not explicitly explain the material issues of medical nexus and current disability, the "clarity and completeness of the hearing record was intact" and the purpose of section 3.103(c)(2) fulfilled because the record reflected that these issues were developed by VA, including the provision of a VA examination, and there was no indication that the appellant had any additional information to submit. At the hearing, the Veteran testified as to the current severity of his bilateral hearing loss. Any deficiencies in the July 2013 Board hearing under section 3.103(c)(2) were not prejudicial, and no deficiencies have been shown or alleged. Through several remands and notice letters, the Veteran has been advised of what evidence would substantiate his claim, and accorded opportunities to provide substantiating evidence. VA has otherwise developed this claim, including obtaining records on the Veteran's behalf and providing VA examinations which specifically address the outstanding issue in this case, as discussed above with regard to VA's duty to assist under the VCAA. Moreover, the Veteran did not raise any new issues relevant to his claim for an increased rating at the hearing, and there is also no indication of any outstanding evidence he might submit. Id. at 499. Thus, given the development undertaken by VA with respect to this claim, and in light of the Veteran's testimony at the hearing, the "clarity and completeness of the hearing record [is] intact" and the purpose of section 3.103(c)(2) to develop the record has been fulfilled. Id. at 498-99. Accordingly, the Veteran's right to a Board hearing has been satisfied and no prejudicial error exists with regard to the hearing officer's duties under section 3.103(c)(2). See id.; see also Sanders, 556 U.S. at 407, 410. The RO/AMC substantially complied with the Board's August 2012 and February 2013 remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). See also D'Aries v. Peake, 22 Vet. App. 97 (2008) (finding that only substantial compliance, rather than strict compliance, with the terms of a Board engagement letter requesting a medical opinion is required). The RO/AMC secured additional VA treatment records, afforded the Veteran a new examination to determine the severity of his service-connected bilateral hearing loss, and rescheduled the Veteran for a Board hearing at his local RO. The RO/AMC has substantially complied with the Board's instructions. In summary, the duty to assist has been met. 38 U.S.C.A. § 5103A (West 2002 & Supp. 2012). Increased Evaluation Claim The Veteran contends that his bilateral hearing loss is more severe than is contemplated by the currently-assigned rating, and asserts that a compensable rating is warranted. Because his hearing loss does not meet the schedular criteria for a higher rating (it is at worst, a Level II in the right ear and a Level I in the left ear), his claim will be denied. The Veteran filed an increased rating claim in January 2007. The Veteran's entire history is reviewed when assigning a disability evaluation per 38 C.F.R. § 4.1. However, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The 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, 509-510 (2007). That is to say, the Board must consider whether there have been times when his bilateral hearing loss disability has been more severe than at others, and rate it accordingly. Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. If there is a question as to which evaluation to apply to the Veteran's disability, 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. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of his disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of the facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). In essence, lay testimony is competent when it regards the readily observable features or symptoms of injury or illness. Layno v. Brown, 6 Vet. App. 465, 469 (1994). Once a service-connected hearing disability is established, levels of hearing loss are determined by considering the puretone threshold average and speech discrimination percentage scores, resulting in a Roman numeral designation for hearing loss. 38 C.F.R. §§ 4.85(b), Table VI. Disability ratings are assigned by combining the level of hearing loss in each ear. 38 C.F.R. § 4.85(e), Table VII. See Lendenmann v. Principi, 3 Vet. App. 345 (1992) (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). 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 in each ear based on consideration of speech discrimination as well as puretone threshold averages, unless the examiner certifies that use of the speech discrimination test is not appropriate. In that case, table VIa, "Numeric Designation of Hearing Impairment Based Only on Puretone Threshold Average" is used. Table VII, "Percentage Evaluation for Hearing Impairment" is then used to determine the percentage evaluation by combining the Roman numeral of each ear. 38 C.F.R. §§ 3.383, 3.385, 4.85(b). If the Veteran has either of two exceptional pattern of hearings impairment, the Roman numeral value is determined using both Table VI and VIa. 38 C.F.R. § 4.86. This method is used if the Veteran's puretone threshold at each of the four specified frequencies is 55 decibels or more, or if the Veteran's puretone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz. Whichever table results in a higher Roman numeral value is used to calculate a disability evaluation using Table VII. Id. The Veteran's puretone thresholds do not meet the standard for an exceptional pattern of hearing, and therefore Table VIa will not be used to calculate his disability. The Veteran underwent four VA audiological examinations over the course of his appeal. In March 2007, via QTC Medical Services (QTC), his puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 35 25 25 45 LEFT 15 20 25 45 55 The average puretone threshold was 33 decibels in the right ear and 36 decibels in the left ear. Speech audiometry revealed speech recognition ability of 86 percent in the right ear and 94 percent in the left ear. The examiner diagnosed the Veteran with bilateral hearing loss, and noted that the functional impairment is difficulty hearing normal conversation speech. Applying the results of the March 2007 QTC examination to Table VI of the VA regulations yields a Roman numeral II in the right ear and a Roman numeral I in the left ear. In July 2008, the Veteran's puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 30 25 35 50 LEFT 25 25 30 45 50 The average puretone threshold was 35 decibels in the right ear and 38 decibels in the left ear. Speech audiometry revealed speech recognition ability of 98 percent in the right ear and 94 percent in the left ear. The examiner diagnosed the Veteran's right ear with normal to mild hearing loss to the 3000 hertz frequency range and moderate to moderately severe sensorineural loss above the 3000 hertz frequency range in the right ear. He was diagnosed with normal hearing to the 1000 hertz frequency range and mild to severe sensorineural loss above the 1000 hertz frequency range in the left ear. Applying the results of the July 2008 VA examination to Table VI of the VA regulations yields a Roman numeral I in the right ear and a Roman numeral I in the left ear. In February 2011, the Veteran's puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 30 30 40 50 LEFT 25 20 30 40 50 The average puretone threshold was 38 decibels in the right ear and 35 decibels in the left ear. Speech audiometry revealed speech recognition ability of 94 percent in the right ear and 96 percent in the left ear. The examiner diagnosed the Veteran with normal hearing at 0.5 kilohertz with mild to moderately severe sensorineural hearing loss from 1 to 8 kilohertz in the right ear and normal hearing through 1 kilohertz and mild to profound sensorineural hearing loss from 2 to 8 kilohertz in the left ear. The examiner noted that the Veteran's hearing is not expected to improve with medical intervention. Applying the results of the February 2011 VA examination to Table VI of the VA regulations yields a Roman numeral I in the right ear and a Roman numeral I in the left ear. Lastly, in August 2012, the Veteran's puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 35 30 40 50 LEFT 35 35 30 45 50 The average puretone threshold was 39 decibels in the right ear and 40 decibels in the left ear. Speech audiometry revealed speech recognition ability of 94 percent in the right ear and 96 percent in the left ear. The examiner diagnosed the Veteran with sensorineural hearing loss in the frequency ranges of 500 to 4000 hertz and of 6000 hertz or higher for both ears. The examiner reported that the Veteran's hearing loss does not impact ordinary conditions of daily life, including the Veteran's ability to work. She explained that the Veteran's hearing loss likely results in mild communication difficulties in noisy environments without the use of hearing aids, but it does not render him unable to secure and maintain substantially gainful physical or sedentary employment. The examiner stated that with the use of hearing aids, the Veteran demonstrated excellent word recognition abilities, and concluded that the Veteran would likely perform well in a working environment even in mild to moderate background noise with the use hearing aids. Applying the results of the August 2012 VA examination to Table VI of the VA regulations yields a Roman numeral I in the right ear and a Roman numeral I in the left ear. Applying the values of Level I hearing loss from the July 2008, February 2011, and August 2012 VA examination results in each ear to Table VII, the Veteran's bilateral hearing loss warrants a noncompensable evaluation. Similarly, applying the values of Level II and Level I hearing loss from the March 2007 QTC examination results in each ear to Table VII, the Veteran's bilateral hearing loss warrants a noncompensable evaluation, and not more. Thus, the evidence does not support a finding of a compensable evaluation. The Veteran visited a private audiologist for additional audiological testing in June 2007. Audiological testing performed showed the following puretone thresholds. HERTZ 500 1000 2000 3000 4000 RIGHT 20 35 25 35 50 LEFT 25 25 25 40 50 Average puretone thresholds were 36 decibels in the right ear and 35 decibels in the left ear. Unaided speech discrimination scores were reported as 92 percent in the right ear and 100 percent in the left ear. The Veteran was diagnosed with bilateral high-frequency sensorineural hearing loss. For the private audiological evaluation reported above, only the graphic representations of the audiograms were included in the record, with no numeric interpretation provided. However, as the audiometric results are conveyed in a straightforward graph, the chart may be examined to determine the numeric values of the puretone levels for adjudication purposes. See Kelly v. Brown, 7 Vet. App. 471 (1995) (the Court held that it could not interpret the results of an audiograph because interpretation requires a factual finding, which is not the role of the Court in the first instance, and further indicated that the Board was empowered to make such factual findings in the first instance.) Under governing regulations, testing of hearing loss disability for VA rating purposes must meet specific requirements, to include speech discrimination testing in a controlled setting using a Maryland CNC word list. There is no indication in the record that the private audiometric tests was conducted in the manner prescribed. In Savage v. Shinseki, 24 Vet. App. 259 (2011), the Court held that when a private examination report is "unclear" or "not suitable for rating purposes" and the information "reasonably contained in the report otherwise cannot be obtained," VA has a duty to ask the private examiner to clarify the report, request that the claimant obtain the necessary information to clarify the report, or explain why such clarification was not needed. A remand for clarification of the audiological evaluations is not necessary, as the Board is permitted to interpret the graphical representations contained in audiograms into numerical results (see Kelly, 7 Vet. App. at 474), and based upon the results shown, it is clear that the Veteran still would not warrant a compensable rating under the rating criteria even if they were found to be suitable for rating purposes. Specifically, based upon the results of the June 2007 private audiological evaluation, and assuming that the speech discrimination testing was conducted in a controlled setting using a Maryland CNC word list for the audiological evaluation, a Roman numeral I is derived for the right ear and a Roman numeral I is derived for the left ear. A noncompensable evaluation is derived from Table VII of 38 C.F.R. § 4.85 by intersecting the applicable rows with the applicable columns. As such, considering the additional audiological evaluations the evidence does not support a finding of a compensable evaluation for the Veteran's service-connected bilateral hearing loss. The provisions of 38 C.F.R. § 4.86(a) (Exceptional patterns of hearing impairment) do not apply to the Veteran's service-connected bilateral hearing loss as the audiometric results of all the audiological evaluations reported above do not show puretone thresholds of loss of 55 decibels or greater in the four relevant frequencies for either ear. The provisions of 38 C.F.R. § 4.86(b) are also not applicable as the Veteran's hearing loss is not shown to manifest 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz. In Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007) the Court held that in addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in his or her final report. While not argued by the Veteran, the March 2007 and August 2012 examination reports discuss the functional effects caused by the Veteran's bilateral hearing loss disability. In March 2007, the VA examiner reported that the functional impairment of the Veteran's bilateral hearing loss is difficulty hearing normal conversational speech. The August 2012 VA examiner reported that given the degree and configuration of his hearing loss, the Veteran likely experiences mild communication difficulties, particularly in background noise and in group communication without the use of hearing aids. However, the Veteran demonstrates excellent word recognition ability, which is indicative of good benefit from the use of hearing aids. The VA examiner further added that the hearing loss does not impact ordinary conditions of daily life or render him unable to secure and maintain substantially gainful physical or sedentary employment. As noted above, the Veteran's symptoms are not productive of, or consistent with, the criteria for a compensable rating. The Board has duly considered staged ratings, pursuant to Hart, supra, but finds the 0 percent rating assigned is appropriate for the entire rating period. There is no basis for referral for consideration of an extra-schedular rating in this case. 38 C.F.R. § 3.321(b)(1) (2012). The Veteran has not presented any evidence that his bilateral hearing loss results in a unique disability that is not addressed by the rating criteria. The Veteran's bilateral hearing loss is evaluated under 38 C.F.R. § 4.85, Diagnostic Code 6100, the criteria of which is found by the Board to specifically contemplate the Veteran's level of disability and symptomatology. As noted above, the Veteran's bilateral hearing loss is manifested by, at worst, Level II hearing loss in the right ear and Level I hearing loss in the left ear. When comparing this disability picture with the symptoms contemplated by the Schedule, the Veteran's symptoms are adequately contemplated by the disability rating for bilateral hearing loss. A rating in excess of the currently assigned rating is provided for certain manifestations of hearing loss, but the medical evidence reflects that those manifestations are not present in this case. The criteria for a noncompensable rating for the Veteran's bilateral hearing loss more than reasonably describe his disability level and symptomatology and, therefore, the currently assigned schedular evaluation is adequate. Thus, there is no basis for referral of the case for consideration of an extraschedular disability evaluation. See Thun v. Peake, 22 Vet. App 111, 115-16 (2008); see also Bagwell v. Brown, 9 Vet. App. 337 (1996). Disability ratings for hearing impairment are derived by a mechanical application of the numeric designations assigned after audiological evaluations are rendered. Lendenmann, 3 Vet. App. at 349. There was no indication that the audiological evaluations produced test results which were invalid or did not sufficiently address his disability picture, nor is there evidence which suggests that the hearing loss rating criteria are not adequate to address the claim. The clinical findings establish that the preponderance of the evidence is against a compensable evaluation for the Veteran's bilateral hearing loss disability. Therefore, the benefit-of-the-doubt rule is not for application. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Board has considered the Veteran's statements of the severity of his hearing loss, throughout the pendency of this appeal. The Veteran is competent to report matters of which he has personal knowledge, such as difficulty hearing. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303, 310 (2007); 38 C.F.R. § 3.159(a)(2). However, the QTC and VA medical examinations are both comprehensive and address the functional loss sustained by the Veteran. Medical examiners, including the VA compensation examiners, have conducted objective audiograms to measure the severity of the Veteran's hearing loss disability. The rating criteria determination is multi-factorial, not just predicated on lay statements and other testimony, rather, all of the relevant medical and other evidence. The Federal Circuit Court has recognized the Board's authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). In sum, there is no probative audiological evidence of record to support a compensable rating for the Veteran's bilateral hearing loss disability at any time during this appeal period. The preponderance of the evidence is against the Veteran's claim for a higher rating. Consequently, the benefit of the doubt rule does not apply. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER A compensable disability evaluation for bilateral hearing loss is denied. ____________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs