Citation Nr: 1628254 Decision Date: 07/14/16 Archive Date: 07/28/16 DOCKET NO. 13-23 142 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to an initial compensable rating for bilateral hearing loss prior to June 28, 2015. 2. Entitlement to an initial rating in excess of 10 percent from June 28, 2015. REPRESENTATION Appellant represented by: Tennessee Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. McPhaull, Counsel INTRODUCTION The Veteran served on active duty from October 1966 to October 1968. This matter comes on appeal before the Board of Veterans' Appeals (Board) from an April 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee, which granted service connection for bilateral hearing loss and assigned a noncompensable evaluation, effective March 12, 2010 (the date of the original claim for service connection). The Veteran testified at an October 2014 Board hearing before the undersigned. A transcript is of record. In April 2015, this matter was remanded for further development, to include a contemporaneous examination. By way of a July 2015 rating decision, the RO assigned a 10 percent rating for the Veteran's bilateral hearing loss disability effective from June 28, 2015, the date of the most recent VA examination. Despite the grant of this increased evaluation, the Veteran has not been awarded the highest possible evaluation. As a result, he is presumed to be seeking the maximum possible evaluation. The issue remains on appeal, as the Veteran has not indicated satisfaction with the 10 percent rating. A.B. v. Brown, 6 Vet. App. 35 (1993). As such, the staged ratings are reflected on the title page. FINDINGS OF FACT 1. Prior to June 28, 2015, the Veteran's bilateral hearing loss manifests no greater than Level VIII hearing acuity in the right ear and Level I hearing acuity in the left ear. 2. Beginning June 28, 2015, the Veteran's bilateral hearing loss manifests Level VIII hearing acuity in the right ear and Level II hearing acuity in the left ear. 3. Although the Veteran has complained, primarily, of trouble understanding words and what people are saying in conversations because of his hearing loss, there is no evidence or allegation that the disability at issue is so unusual or exceptional to render the schedular criteria for evaluating the disability inadequate, nor has the matter of the Veteran's entitlement to a total disability rating for his hearing loss been reasonably raised. CONCLUSIONS OF LAW 1. The criteria for an initial compensable rating for bilateral hearing loss are not met prior to June 28, 2015. 38 U.S.C.A. § 1155, 5107 (West 2015); 38 C.F.R §§ 4.85-4.86, Diagnostic Code (Code) 6100 (2015). 2. The criteria for a rating in excess of 10 percent rating for bilateral hearing loss beginning June 28, 2015 are not met. 38 U.S.C.A. § 1155, 5107 (West 2015); 38 C.F.R. §§ 4.85-4.86, Code 6100 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to notify and assist With respect to the Veteran's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2015); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2015); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). II. Analysis Under the applicable criteria, ratings for hearing loss are determined in accordance with the findings obtained on audiometric examination. Hearing loss disability evaluations range from noncompensable (zero percent) to a maximum 100 percent based on organic impairment of hearing acuity, as measured by controlled speech discrimination tests (Maryland CNC) in conjunction with the average hearing threshold, as measured by puretone audiometric tests in the frequencies 1000, 2000, 3000, and 4000 cycles per second (Hertz ). The rating schedule establishes eleven auditory acuity levels, designated from Level I for essentially normal hearing acuity through Level XI for profound deafness. VA audiometric examinations are conducted using a controlled speech discrimination test together with the results of a puretone audiometry test. Under 38 C.F.R. §§ 4.85, the vertical lines in Table VI represent nine categories of the percentage of discrimination based on the controlled speech discrimination test. The horizontal columns in Table VI represent nine categories of decibel loss based on the puretone audiometry test. The numeric designation of impaired hearing (Levels I through XI) is determined for each ear by intersecting the vertical row appropriate for the percentage of discrimination and the horizontal column appropriate to the puretone decibel loss. If impaired hearing is service-connected in only one ear, as in the instant case, in order to determine the percentage evaluation from Table VII, the non-service connected ear will be assigned a Roman numeral designation for hearing impairment of I. 38 C.F.R. § 4.85(f). The percentage evaluation is determined from Table VII (in 38 C.F.R. § 4.85) by intersecting the vertical column appropriate for the numeric designation for the ear having the better hearing acuity and the horizontal row appropriate to the numeric designation for the ear having the poorer hearing acuity. For example, if the better ear has a numeric designation Level of "V" and the poorer ear has a numeric designation Level of "VI," the percentage evaluation is 20 percent. See 38 C.F.R. § 4.85. The provisions of 38 C.F.R. § 4.86(a) pertaining to exceptional patterns of hearing impairment provide that, when the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz ) is 55 decibels or more, 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. Each ear will be evaluated separately. The provisions of 38 C.F.R. § 4.86(b) pertaining to exceptional patterns of hearing impairment provide that, 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 will be evaluated separately. In claims involving a request for higher rating following the grant of service connection, evaluation of the medical evidence since the effective date of the award and consideration of the appropriateness of "staged rating" (assignment of different ratings for distinct periods of time, based on the facts found) is required. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). In this case, the RO has already assigned staged ratings for the Veteran's bilateral hearing loss; hence, the Board will consider the propriety of the rating assigned at each stage, as well as whether any further staged rating is warranted. In this case, the April 2012 award, service connection and assignment of an initial noncompensable rating for bilateral hearing loss was based, in part, on the reports of June 2010 and February 2012 VA audiological evaluations. Audiometric testing during the June 2010 evaluation revealed the following pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 85 80 80 90 95 LEFT 45 35 45 55 65 The average puretone thresholds were 86.25 decibels in the right ear and 50 decibels in the left ear. Speech audiometry revealed speech recognition ability of 78 percent in the right ear and 92 percent in the left ear. The examiner noted that the Veteran's bilateral hearing loss disability had significant effects on his occupational activities as he experienced hearing difficulty. Audiometric testing during the February 2012 evaluation revealed the following pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 85 80 80 80 90 LEFT 45 40 40 55 65 The average puretone thresholds were 82 decibels in the right ear and 50 decibels in the left ear. Speech audiometry revealed speech recognition ability of 86 percent in the right ear and 96 percent in the left ear. The examiner noted that the Veteran's bilateral hearing loss disability impacted his ordinary conditions of daily life to include the ability to work; as the Veteran indicated that he could not hear people when they spoke at a low level or if they were at a distance from him. Notably during the February 2012 evaluation, the examiner indicated that the hearing loss in the Veteran's right ear was mixed in nature. She noted that the conductive component was unlikely to be related to noise exposure, and thus the bone conduction scores should be used for rating purposes. She noted that bone conduction scores in the right ear were as follows: 500Hz-40dB; 1000Hz-40dB; 2000Hz-65dB; 3000Hz-60dB; and 4000Hz-50dB with an average of 54. The Board observes that whether air conduction or bone conduction results are used, the 0 percent rating remains the same. Further, due to the June 28, 2015 VA evaluation results, the AOJ, by way of the July 2015 rating decision, assigned a 10 percent increase based on the air conduction scores of the right ear. Based on the above examinations, as exceptional hearing loss as defined by 38 C.F.R. § 4.86 is demonstrated for the right ear during this period, Table VIA is for application for the right ear. The June 2010 audiometric results reveal that the Veteran's hearing loss was manifested to Level VIII hearing acuity in the right ear and the left ear under Table VI is manifested to Level I. 38 C.F.R. § 4.85. Under Table VII, Level VIII hearing in the right ear (poorer ear) intersected with Level I hearing in the left ear (better ear), warrants the assignment of a noncompensable rating for the bilateral hearing loss. 38 C.F.R. § 4.85. Moreover, under Table VIA, the February 2012 audiometric results reveal the Veteran's hearing loss was manifested to Level VII hearing acuity in the right ear, and the left ear under Table VI is manifested to Level I. 38 C.F.R. § 4.85. Under Table VII, Level VII hearing in the right ear (poorer ear) intersected with Level I hearing in the left ear (better ear), again warrants the assignment of a noncompensable rating for the bilateral hearing loss. 38 C.F.R. § 4.85. As such, the assignment of a noncompensable rating for bilateral hearing loss in the April 2012 rating decision was in accordance with controlling legal provisions. See Lendenman v. Principi, 3 Vet. App. 345, 349 (1992). Thereafter, on the most recent VA examination in June 2015, the Veteran reported that without his hearing aids he is unable to hear very low sounds. He indicated that he has trouble understanding words and what people are saying. He also stated that he has trouble hearing people at a distance. On audiometric testing, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 90 85 75 80 95 LEFT 50 45 40 55 65 The average puretone thresholds were 84 decibels in the right ear and 51 decibels in the left ear. Speech audiometry revealed speech recognition ability of 74 percent in the right ear and 88 percent in the left ear. Using Table VI, the results of the Veteran's June 2015 VA audiology examination reveals Level II hearing in the left ear. The Board observes that once again the pure tone thresholds recorded on the June 2015 VA audiological evaluation reflects exceptional hearing impairment in the right ear, as defined by regulation. See 38 C.F.R. § 4.86. Using Table VIA, the audiological scores reveal Level VIII hearing loss. Applying the respective scores of II for the left ear (better ear) and VIII for the right ear (poorer ear) to Table VII results in a 10 percent rating. The Board has considered the Veteran's assertions as to the severity of his hearing loss and in no way discounts these asserted difficulties or the Veteran's assertions that his bilateral hearing loss should be rated higher. The Board emphasizes, however, that the assignment of schedular disability ratings for hearing impairment is derived by a mechanical application of the rating schedule to the numeric designation assigned after audiometry results are obtained. Hence, the Board has no discretion in this matter and must predicate its determination based on the results of the audiology studies of record. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). In other words, the Board is bound by law to apply VA's rating schedule based on the audiometry results. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. The above determinations are based upon consideration of pertinent provisions of VA's rating schedule. Additionally, the Board finds that at no point since the appeal period was the Veteran's bilateral hearing loss shown to be so exceptional or unusual as to warrant the assignment of any higher rating on an extraschedular basis. See 38 C.F.R. § 3.321. Generally, evaluating a disability using either the corresponding or analogous diagnostic codes contained in the Rating Schedule is sufficient. See 38 C.F.R. §§ 4.20, 4.27 (2015). Because the ratings are averages, it follows that an assigned rating may not completely account for each individual veteran's circumstance, but nevertheless would still be adequate to address the average impairment in earning capacity caused by disability. Thus, in exceptional cases where the rating is inadequate, it may be appropriate to assign an extraschedular rating. 38 C.F.R. § 3.321(b) (2015). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Id.; see Thun v. Peake, 22 Vet. App. 111, 115 (2008). Therefore, initially, there must be a comparison between the level of severity and symptomatology of the veteran's service-connected disability with the established criteria found in the Rating Schedule for that disability. Id. at 115. If the criteria reasonably describe the veteran's disability level and symptomatology, then the veteran's disability picture is contemplated by the Rating Schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. See VAOPGCPREC 6-96 (when service-connected disability affects employment "in ways not contemplated by the rating schedule[,]" § 3.321(b)(1) is applicable); 61 Fed. Reg. 66749 (1996). The Board finds that the Veteran's disability picture is not so unusual or exceptional in nature as to render the assigned rating inadequate. Before June 28, 2015, the Veteran's bilateral hearing loss manifests, at its worst, Level VIII hearing acuity in the right ear and Level I hearing acuity in the left ear. After June 28, 2015, it manifests as Level VIII hearing acuity in the right ear and Level II hearing acuity in the left ear. When comparing this disability picture with the symptoms contemplated by the Rating Schedule, the Board finds that the Veteran's experiences are congruent with the disability picture represented by disability ratings currently assigned. The rating criteria contemplate speech reception thresholds and ability to hear spoken words on Maryland CNC testing. The symptoms associated with the Veteran's bilateral hearing loss, such as difficulty hearing, are contemplated by the rating criteria and the medical evidence fails to show anything unique or unusual about the Veteran's bilateral hearing loss that would render the schedular criteria inadequate. The Veteran's main complaint is reduced hearing acuity, which is precisely what is contemplated in the rating assigned. As the available schedular criteria for this service-connected disability are adequate, referral for consideration of an extraschedular rating is not warranted. In reaching the above conclusions, the Board has considered the Veteran's statements regarding the severity of his service-connected bilateral hearing loss. The Veteran's hearing loss is manifested by difficulty hearing low sounds, trouble understanding words and what people are saying, and trouble hearing at a distance. The Veteran's statements are competent evidence on factual matters of which he has first-hand knowledge. Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). However, while the Board may consider the Veteran's subjective statements regarding the increasing severity of his disability, these complaints were considered by the medical professionals that examined him and provided clinical findings. Martinak v. Nicholson, 21 Vet. App. 447 (2007). Disability ratings for hearing loss are derived by a mechanical application of the rating schedule to the numeric designations assigned after an audiometric evaluation is performed. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). This audiometric evaluation requires medical expertise. The Board finds the objective audiometric findings and opinions provided by medical professionals are afforded the greater probative weight. The probative value of audiometric examination 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 the physician reaches. In light of the foregoing, the Board finds that the preponderance of the evidence is against the assignment of an initial compensable evaluation for bilateral hearing loss prior to June 28, 2015, and against the assignment of a rating in excess of 10 percent thereafter. ORDER An initial, compensable rating for bilateral hearing loss, prior to June 28, 2015, is denied. An initial rating in excess of 10 percent for bilateral hearing loss, from June 28, 2015, is denied. ______________________________________________ R. FEINBERG Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs