Citation Nr: 1752980	
Decision Date: 11/17/17    Archive Date: 11/22/17

DOCKET NO.  13-25 829	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee


THE ISSUES

1.  Whether the reduction in the disability rating for bilateral hearing loss from 30 percent to 20 percent was proper.

2.  Entitlement to a rating in excess of 30 percent for bilateral hearing loss.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

B. Elwood, Counsel




INTRODUCTION

The Veteran served on active duty from November 1964 to November 1967.

These matters come before the Board of Veterans' Appeals (Board) from a December 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee.  In that decision, the RO reduced the disability rating for bilateral hearing loss from 30 percent to 20 percent, from March 1, 2012.

In June 2015, the Board remanded these matters for further development.  

The Board points out that the December 2011 rating decision which reduced the disability rating for hearing loss was in response to a December 2010 claim for an increased rating for hearing loss (see a December 2010 "Veteran's Application for Compensation and/or Pension" form (VA Form 21-526)).  As noted in the June 2015 remand, the Veteran contended in his April 2012 notice of disagreement that his hearing loss had not improved and, in fact, had worsened.  In an August 2013 statement of the case, the agency of original jurisdiction (AOJ) characterized the issue on appeal in terms of the propriety of the rating reduction for hearing loss, but subsequently addressed the claim for an increased rating for hearing loss in the reasons and bases for the continued denial of the claim.  Hence, the Board characterized the issue on appeal as being the single combined matter of entitlement to a rating in excess of 20 percent for bilateral hearing loss, to include the propriety of the reduction from a 30 percent rating to a 20 percent rating, effective March 1, 2012.  As the Board is now restoring the 30 percent rating for hearing loss and otherwise denying a rating in excess of 30 percent, the hearing loss issue has been bifurcated, as set forth on the title page.  See Locklear v. Shinseki, 24 Vet. App. 311, 315 (2011) (bifurcation of a claim generally is within VA's discretion).





FINDINGS OF FACT

1.  The reduction in the disability rating for bilateral hearing loss from 30 percent to 20 percent was not based on improvement in the Veteran's ability to function under the ordinary conditions of life and work.

2.  The Veteran has at worst level VI hearing in both ears.


CONCLUSIONS OF LAW

1.  The reduction in the disability rating for bilateral hearing loss from 30 percent to 20 percent was not proper.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.105 (e), 3.344 (2017).

2.  The criteria for a rating in excess of 30 percent for bilateral hearing loss are not met.  38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.21, 4.85, 4.86, Diagnostic Code (DC) 6100 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 as amended (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance.  38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). 

In light of the Board's favorable decision in restoring the 30 percent rating for bilateral hearing loss, the claim is substantiated, and there are no further VCAA duties as to that issue.  Wensch v. Principi, 15 Vet App 362, 367-68 (2001); see also 38 U.S.C. § 5103A (a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); VAOPGCPREC 5-2004; 69 Fed. Reg. 59989 (2004) (the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance).

With respect to the claim for an increased rating for hearing loss, under the VCAA, VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  Pelegrini v. Principi, 18 Vet. App. 112, 120-21   (2004); see 38 U.S.C. § 5103 (a); 38 C.F.R. § 3.159 (b).

The United States Court of Appeals for Veterans Claims (Court) has also held that the VCAA notice requirements of 38 U.S.C. § 5103 (a) and 38 C.F.R. § 3.159 (b) apply to all five elements of a service connection claim.  Those five elements include (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).

In a pre-adjudication letter dated in February 2011, the RO notified the Veteran of the evidence needed to substantiate his claim for an increased rating for bilateral hearing loss.  This letter also satisfied the second and third elements of the duty to notify by delineating the evidence VA would assist him in obtaining and the evidence it was expected that he would provide.  Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002); Charles v. Principi, 16 Vet. App. 370 (2002).

The claimant's veteran status has been substantiated.  He was notified of all other elements of the Dingess notice, including the disability rating and effective date elements of his claim, in the February 2011 letter. 

The Court held in Vazquez-Flores v. Peake that 38 U.S.C. § 5103 (a) requires, at a minimum, that the Secretary notify the Veteran that, to substantiate an increased rating claim, the Veteran must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment.  Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated sub nom, Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009).

Additionally, the Veteran must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant diagnostic codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment.  Id.  

Furthermore, the Court directed that as with proper notice for an initial disability rating and consistent with the statutory and regulatory history, the notice must also provide examples of the types of medical and lay evidence that the Veteran may submit (or ask the Secretary to obtain) that are relevant to establishing entitlement to increased compensation-e.g., competent lay statements describing symptoms, medical and hospitalization records, medical statements, employer statements, job application rejections, and any other evidence showing an increase in the disability or exceptional circumstances relating to the disability.  Id.  

The February 2011 letter told the Veteran that evidence of worsening could substantiate the increased rating claim.  He was notified in the letter that medical or lay evidence could be submitted to substantiate his increased rating claim and was provided with specific examples.  The February 2011 letter also stated that the Veteran could submit statements from individuals who could describe the manner in which his disability had worsened.

The February 2011 letter explained that disability ratings are determined by applying VA's rating schedule under which the RO would assign an evaluation rating from 0 to 100 percent, and that it would consider evidence of the nature of the symptoms of the condition, their severity and duration, and their impact upon employment.  Thus, the duty to notify has been satisfied in this case.

The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim.  38 U.S.C. § 5103A; 38 C.F.R. 
 § 3.159(c), (d).  This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim.  38 C.F.R. § 3.159 (c)(4). 

VA obtained the Veteran's service treatment records and all of the identified relevant post-service VA treatment records.  In addition, the Veteran was afforded VA examinations to assess the severity of his service-connected hearing loss.  He has not reported, and the evidence does not otherwise reflect, that he has received any relevant private medical treatment for hearing loss during the claim period.

The Board acknowledges that a March 2011 VA Agent Orange program note reflects that the Veteran was in receipt of Social Security Administration (SSA) disability benefits for a knee disability.  Although the records related to his claim for SSA benefits have not been obtained, VA is not required to obtain these records in this instance because the Veteran's knee disability is not relevant to the hearing loss issue on appeal.  See Golz v. Shinseki, 590 F.3d 1317, 1321 ("The legal standard for relevance requires VA to examine the information it has related to medical records and if there exists a reasonable possibility that the records could help the veteran substantiate his claim for benefits, the duty to assist requires VA to obtain the records").

A VA audiology examiner is required to fully describe the functional effects caused by a hearing disability.  Martinak v. Nicholson, 21 Vet. App. 447, 454 (2007).  In Martinak, the Court held that this duty was fulfilled where the examiner recorded the Veteran's complaints that hearing loss and tinnitus interfered with sleep.  Id.

The examiner who conducted the most recent VA audiological examination in October 2015 noted that the Veteran's hearing problems included hearing loss and tinnitus.  During the October 2015 examination, the Veteran reported that as a result of his hearing loss he experienced difficulty hearing speakers with "certain pitched" voices and foreign dialects, difficulty hearing when around other noises, and difficulty hearing on the telephone.  The examiner also noted that the Veteran would likely have difficulty trying to communicate when background noise levels are high.  Hence the functional effects of the Veteran's hearing disability were considered.

The VA audiological examinations conducted the claim period were otherwise adequate for rating purposes, as they included pure tone audiometry and speech discrimination tests in accordance with 38 C.F.R. § 4.85.  The examination reports also include opinions as to the severity of the Veteran's hearing loss.  For instance, December 2009 and March 2011 VA examination reports indicate that the Veteran had mild to severe sensorineural hearing loss bilaterally.  Also, the October 2015 VA examination report reflects that he had sensorineural hearing loss in the frequency range of 500 to 4,000 Hertz bilaterally.

In its June 2015 remand, the Board instructed the AOJ to obtain all VA treatment records from the VA Medical Center in Mountain Home, Tennessee (VAMC Mountain Home) dated since July 2013 and to afford the Veteran a VA examination to assess the severity of his hearing loss.  The Veteran was afforded a VA audiological examination in October 2015 and all outstanding VA treatment records (to include records from VAMC Mountain Home dated since July 2013) have been obtained and associated with the file.  Hence, the AOJ substantially complied with all of the Board's June 2015 remand instructions.  VA has no further duty to attempt to obtain any additional records, conduct additional examinations, or obtain additional opinions with respect to the claim for an increased rating for hearing loss. See Dyment v. West, 13 Vet. App. 141, 146- 47 (1999); Stegall v. West, 11 Vet. App. 268 (1998).

Neither the Veteran nor his representative has raised any issues with regard to the duty to notify or duty to assist.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument).
II. Background

Historically, in a December 2009 rating decision, the RO granted an increased (30 percent) rating for bilateral hearing loss based upon the findings made during a December 2009 VA audiological examination.  During that examination, the Veteran's pure tone thresholds, in decibels, were as follows:

Hertz
1,000
2,000
3,000
4,000
Average
Right ear
30
65
65
70
58
Left ear
35
75
80
75
66

Speech audiometry revealed speech recognition ability of 66 percent in the right ear and 68 percent in the left ear.  A diagnosis of mild to severe bilateral sensorineural hearing loss was provided.

The Veteran subsequently submitted a claim for an increased rating for bilateral hearing loss in December 2010 (see the December 2010 VA Form 21-526).  A VA audiological examination was conducted in March 2011, during which the Veteran's pure tone thresholds, in decibels, were as follows:

Hertz
1,000
2,000
3,000
4,000
Average
Right ear
30
65
65
70
58
Left ear
35
75
75
70
64

Speech audiometry revealed speech recognition ability of 76 percent in the right ear and 66 percent in the left ear.  The Veteran was diagnosed as having mild to severe bilateral sensorineural hearing loss.

In support of his increased rating claim, the Veteran submitted statements (VA Form 21-4138) from his niece (J.C.) and friends (J.P.H. and J.H.) dated in March 2011.  J.C. reported that the Veteran was unable to hear when she spoke to him and that she had to repeat herself many times at the Veteran's request.  J.P.H. and J.H. reported that they had known the Veteran for approximately 11 years, that the Veteran was "very hard of hearing," and that they had to yell when speaking with the Veteran.  He did not go out in public as much as he used to and it was believed that this was because he was bothered by the fact that he was unable to hear if others did not yell.  Also, he had not been able to hear over the telephone for the previous couple of years so J.P.H. and J.H. had to visit him in person instead of calling him on the telephone.

A March 2011 VA audiology progress note indicates that the Veteran was found to have a mild sloping to severe bilateral sensorineural hearing loss during the March 2011 VA examination.  The medical professional who completed the March 2011 progress note explained that the results of the March 2011 VA examination "were consistent with previous tests results" obtained during the December 2009 VA examination.

In a June 2011 rating decision, the RO proposed to reduce the disability rating for the Veteran's bilateral hearing loss from 30 percent to 20 percent.  At that time, the RO explained that the March 2011 VA examination showed sustained improvement of the hearing loss.  The RO acknowledged that the Veteran submitted lay testimony of decreased hearing, but it explained that hearing loss is based on objective testing and that lay testimony cannot definitively establish the actual decibel loss at a given range and cannot be used to state that a specific decibel level of hearing loss was met.  Overall, the RO concluded that the application of the objective test results obtained during the March 2011 VA examination to the appropriate schedular rating criteria resulted in a 20 percent rating for the Veteran's hearing loss.

The Veteran was notified of the June 2011 rating decision by way of a July 2011 letter.  This letter notified him that he had a period of 60 days within which to submit additional evidence showing that the reduction should not have been made, that he had a period of 30 days within which to request a predetermination hearing, and that if a request for a predetermination hearing was not received within 30 days or additional evidence was not received within 60 days, the rating for the service-connected hearing loss would be reduced.  

In an August 2011 statement, the Veteran expressed his disagreement with the proposed reduction of the rating for his hearing loss.  He reported that he filed his claim for an increased rating for hearing loss because he believed that his hearing had gotten worse, not better.  He requested that the rating for his hearing loss remain at 30 percent.

In the December 2011 rating decision, the RO reduced the disability rating for the Veteran's bilateral hearing loss from 30 percent to 20 percent, effective March 1, 2012.  The RO explained only that a 20 percent rating was warranted based on the findings made during the March 2011 VA examination and that no additional evidence was received which would warrant a change in its June 2011 proposal.  The RO did not acknowledge or at all discuss the March 2011 statements from J.P.H. and J.H. or the March 2011 VA audiology progress note.

The Veteran reported on his September 2013 substantive appeal (VA Form 9) that his hearing had not improved and that he had been told that hearing loss only gets worse, not better.  Also, he was unable to conduct any business over the telephone because he could not understand people on the telephone.

The October 2015 VA audiological examination report indicates that the Veteran's pure tone thresholds, in decibels, were as follows:

Hertz
1,000
2,000
3,000
4,000
Average
Right ear
25
65
65
70
56
Left ear
30
75
75
70
63

Speech audiometry revealed speech recognition ability of 76 percent in the right ear and 72 percent in the left ear.

The audiologist who conducted the October 2015 examination indicated that the Veteran reported that as a result of his hearing loss he experienced difficulty hearing speakers with "certain pitched" voices and foreign dialects, difficulty hearing when around other noises, and difficulty hearing on the telephone.  Although he had hearing aids, he felt that they did not help in "congested" or crowded areas.  The examiner explained that the test results revealed that the Veteran had normal hearing for low frequency sounds and a severe loss in the high frequency region for both ears.  Overall, the Veteran's hearing loss was significant enough to create communication challenges, especially when talking with female speakers with higher pitched voices, when speaking to people with foreign dialects, when on the telephone, or in any other situations with limited or no visual cues.  He would likely have difficulty trying to communicate amid high background noise levels.  These communication challenges could create some obstacles for him in certain employment environments and the Veteran may require some provisions from his employer, such as an amplified telephone or a quiet work area if his job required a significant amount of verbal interactions.  However, the examiner opined that the Veteran's hearing loss did not render him unemployable.

The October 2015 examiner also referenced a January 2013 VA audiology evaluation and indicated that the Veteran's pure tone thresholds during that evaluation, in decibels, were as follows:

Hertz
1,000
2,000
3,000
4,000
Average
Right ear
30
65
65
70
58
Left ear
35
75
80
70
65

The speech recognition scores during the January 2013 evaluation were noted as being obtained using the NU-6 word list.  The speech recognition scores were 52 percent in the right ear and 44 percent in the left ear.  The Veteran performed better during the October 2015 examination using the Maryland CNC word lists, and better performance would be expected given the Veteran's high frequency hearing loss, since Maryland CNC lists are recorded using a male voice and the NU-6 word list is a recording that uses a female voice. The puretone results during the January 2013 evaluation, however, were similar to those obtained during the October 2015 examination.




III. Rating Reduction

Where a reduction in evaluation of a service-connected disability is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons.  The beneficiary will be notified at his or her latest address of record of the contemplated action and furnished detailed reasons therefor.  Additionally, the beneficiary must be given notice that he has 60 days to present additional evidence to show that compensation payments should be continued at the present level.  Unless otherwise provided in paragraph (i) of this section, if additional evidence is not received within that period, final rating action will be taken and the award will be reduced or discontinued effective the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final rating action expires.  38 C.F.R. § 3.105 (e).

The provisions of 38 C.F.R. § 3.344 (a), (b) prescribe additional requirements for rating reductions but only apply to ratings that have continued for long periods at the same level (5 years or more).  They do not apply to disabilities which have not become stabilized and are likely to improve.  Reexaminations disclosing improvement, physical or mental, in these disabilities will warrant reduction in rating.  38 C.F.R. § 3.344 (c).

Initially, the Board finds that the RO complied with the due process requirements of 38 C.F.R. § 3.105(e) by issuing the June 2011 rating decision and July 2011 letter which proposed the rating reduction for the Veteran's hearing loss.  The Veteran was then given the appropriate time within which to provide additional evidence.  Thereafter, the RO promulgated the December 2011 rating decision, implementing the proposed reduction, effective March 1, 2012.  Thus, as the notice and due process requirements of 38 C.F.R. § 3.105(e) have been met, no further discussion in this regard is necessary.

At the time of the December 2011 reduction, the 30 percent rating for the Veteran's hearing loss had been in effect since November 2009.  Thus, as the rating for hearing loss had been in effect for less than five years, the provisions of 38 C.F.R. § 3.344 (a), (b), which provide additional regulatory hurdles to rating reductions, do not apply.

Nevertheless, the Court has stated that certain regulations "impose a clear requirement that VA rating reductions, as with all VA rating decisions, be based upon review of the entire history of the veteran's disability."  Brown v. Brown, 5 Vet. App. 413, 420 (1993) (referring to 38 C.F.R. §§ 4.1, 4.2, 4.13).  With respect to ratings that have been in effect for less than 5 years, as in this case, 38 C.F.R. § 3.344 (c) requires improvement before a rating is reduced.  Implicit in the regulations is that any improvement must be of such a nature as to warrant a change in the rating.  In Brown, the Court articulated three questions that must be addressed in determining whether a rating reduction is warranted by the evidence.  First, a rating reduction case requires ascertaining "whether the evidence reflects an actual change in the disability."  Second, it must be determined whether the examination reports reflecting such change were based upon thorough examinations.  Third, it must be determined whether the improvement actually reflects an improvement in a veteran's ability to function under the ordinary conditions of life and work.  Brown, 5 Vet. App. at 421.

In light of the above evidence, the Board finds that the reduction in the disability rating for the Veteran's bilateral hearing loss was not proper.  The December 2011 rating decision which reduced the disability rating demonstrates that the RO appears to have essentially analyzed the issue of reduction of the 30 percent rating in the same manner as it would analyze an increased rating claim.  Specifically, the RO did not address whether there was "an actual improvement in the Veteran's ability to function under the ordinary conditions of life and work."  Id.  Overall, the evidence does not reflect that there was any improvement in the Veteran's ability to function under the ordinary conditions of life and work in light of his hearing loss at the time of the December 2011 reduction.  Rather, the competent and credible lay statements from the Veteran, J.C., J.P.H., and J.H indicate that the functional impacts of the Veteran's hearing loss remained the same, and potentially worsened, notwithstanding any improvement in objective audiometric test results.  Notably, the RO did not at all acknowledge or discuss the lay statements from J.P.H. or J.H. in its December 2011 decision.  As for the objective test results, the reports of the December 2009 and March 2011 VA examinations reflect that although the Veteran's speech recognition ability improved in the right ear, his pure tone thresholds and the speech recognition ability in the left ear either stayed the same or worsened.  Also, the medical professional who completed the March 2011 VA audiology progress note explained that the results of the March 2011 VA examination "were consistent with previous tests results" obtained during the December 2009 VA examination.

The circumstances under which a disability rating may be reduced are specifically limited and carefully circumscribed by regulations promulgated by VA.  See Dofflemeyer v. Derwinski, 2 Vet. App. 277, 280 (1992).  The burden of proof is on VA to establish that a reduction is warranted by a preponderance of the evidence. The Court has stated that both decisions by the RO and by the Board that do not apply the provisions of 38 C.F.R. § 3.344 , when applicable, are void ab initio and will be set aside as not in accordance with the law.  Kitchens v. Brown, 7 Vet. App. 320 (1995); Brown, 5 Vet. App. at 413; see also Hayes v. Brown, 9 Vet. App. 67, 73 (1996).  Where a rating reduction was made without observance of law, the reduction must be vacated and the prior rating restored.  Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991).

The law is clear that certain procedures must be followed when a disability rating is reduced.  The failure to properly apply the provisions of 38 C.F.R. § 3.344 renders the reduction from 30 percent to 20 percent void ab initio.  Kitchens, 7 Vet. App. at 320; Dofflemeyer, 2 Vet. App. at 277.  Accordingly, under these circumstances, the previously assigned 30 percent rating for the Veteran's bilateral hearing loss must be restored, effective March 1, 2012.

IV. Increased Rating

Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule).  Separate diagnostic codes identify the various disabilities. 
38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10.

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 evaluation 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.  Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances.  38 C.F.R. § 4.21.

In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition.  The Board has a duty to acknowledge and consider all regulations that are potentially applicable.  Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required.  38 C.F.R. §§ 4.1, 4.2, 4.10.

Where 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 concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings.  Francisco v. Brown, 7 Vet. App. 55 (1994).  Staged ratings are, however, appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings.

The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim.  Hart v. Mansfield, 21 Vet. App. 505 (2007). 

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. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

Hearing loss is rated on the basis of examination results including a controlled speech discrimination test (Maryland CNC), and a pure tone audiometric test of pure tone decibel thresholds at 1000, 2000, 3000, and 4000 Hz with an average pure tone threshold obtained by dividing these thresholds by four.  38 C.F.R. § 4.85.

Once these test results have been obtained, employing Table VI, a Roman numeral designation of hearing impairment is ascertained based on a combination of the percent of speech discrimination and pure tone threshold average.  Once a Roman numeral designation of auditory acuity level for each ear has been determined, Table VII is used to determine the percentage evaluation for bilateral hearing loss by combining the Roman numeral designations of auditory acuity level for hearing impairment of each ear.  Id.

There is an alternative method of rating hearing loss in defined instances of exceptional hearing loss.  In such exceptional cases, the Roman numeral designation for hearing loss of an ear may be based only on pure tone threshold average, using Table VIA, or from Table VI, whichever results in the higher Roman numeral.  Exceptional hearing loss exists when the pure tone threshold at the frequencies of 1000, 2000, 3000, and 4000 Hertz is 55 decibels or more; or where the pure tone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz.  In the latter situation, the higher Roman numeral, determined from Table VI or VIA, will then be elevated to the next higher Roman numeral.  Each ear will be evaluated separately.  38 C.F.R. § 4.86.

In this case, the Board initially points out that the January 2013 VA audiological evaluation did not include a controlled speech discrimination test according to the Maryland CNC standards.  Rather, as explained by the examiner who conducted the October 2015 VA examination, the speech recognition scores during the January 2013 evaluation were obtained using the NU-6 word list.  Also, the pure tone thresholds during the January 2013 evaluation do not warrant application of 38 C.F.R. § 4.86 for exceptional hearing loss.  Therefore, the January 2013 assessment does not meet the VA audiologic standards set by 38 C.F.R. § 4.85 and cannot be used to rate the severity of the Veteran's hearing loss.

As for the December 2009 VA examination, the use of Table VI reveals level VI hearing in both ears.  Combining level VI hearing for both ears according to Table VII yields a rating of 30 percent.  Using Table VI, the March 2011 VA examination revealed level IV hearing in the right ear and level VI hearing in the left ear.  Combining level IV hearing for the right ear and level VI hearing for the left ear according to Table VII yields a rating of 20 percent.  

Moreover, using Table VI, the October 2015 VA examination revealed level IV hearing in the right ear and level V hearing in the left ear.  However, because the pure tone thresholds in the left ear were 30 decibels at 1000 Hertz and 75 decibels at 2000 Hertz, Table VIa is for consideration for the left ear.  Table VIa also reveals level V hearing in the left ear.  Hence, the level V hearing in the left ear is elevated to level VI hearing.  See 38 C.F.R. § 4.86(b).  Combining level IV hearing for the right ear and level VI hearing for the left ear according to Table VII yields a rating of 20 percent.  

The Veteran has expressed his belief that the severity of his hearing loss warrants a higher rating.  He is competent to report the symptoms of his hearing disability, others are competent to report their observations of the Veteran's symptoms, and the Board has no legitimate basis to challenge the credibility of these lay contentions.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006).  However, ratings for hearing loss are determined by a mechanical application of the VA rating schedule to the numeric designations assigned based on audiometric test results.  Lendenmann v. Principi, 3 Vet. App. 345 (1992).  The lay statements of record do not show that he has met the specific pure tone thresholds and/or speech discrimination percentages required for a rating in excess of 30 percent for bilateral hearing loss at any time during the claim period.

The Board further finds that, in conjunction with the claim for an increased rating for bilateral hearing loss, no other related issues have been raised by the Veteran or his representative, and no other such issues have been reasonably raised by the record.  See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (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).

In reaching its decision in this appeal, the Board has resolved reasonable doubt in the Veteran's favor, where applicable.  The record neither shows that the evidence is so evenly balanced as to warrant a higher rating for bilateral hearing loss, nor does the evidence show that the Veteran's hearing disability more closely approximates the criteria for a rating in excess of 30 percent at any time during the claim period.  The benefit of the doubt doctrine is therefore not for application and the claim for a rating in excess of 30 percent for bilateral hearing loss is not warranted.  38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.


ORDER

Restoration of a 30 percent rating for bilateral hearing loss, from March 1, 2012, is granted, subject to controlling regulations governing the payment of monetary awards.

Entitlement to a rating in excess of 30 percent for bilateral hearing loss is denied.



____________________________________________
Jonathan Hager
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs