Citation Nr: 1753413 Decision Date: 11/21/17 Archive Date: 12/01/17 DOCKET NO. 14-17 528 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to an initial disability rating in excess of 30 percent for bilateral hearing loss from July 12, 2011, in excess of 50 percent from June 16, 2014, and in excess of 60 percent from November 18, 2016. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD A. Labi, Associate Counsel INTRODUCTION The Veteran served on active duty in the U.S. Marine Corps from May 1954 to April 1958 with additional service in the Louisiana Army National Guard from September 1978 to October 1994. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. In January 2013, the RO granted service connection for bilateral hearing loss and assigned a disability rating of 30 percent, effective July 12, 2011. In the July 2014, the RO increased the Veteran's rating for hearing loss to 50 percent, effective June 16, 2014. In June 2017, the RO increased the Veteran's rating to 60 percent effective November 18, 2016. The Veteran testified before the undersigned Veterans Law Judge in November 2016. A transcript of the hearing is associated with the claims file. This matter was previously before the Board in February 2017. Pursuant to the Board's remand, the Agency of Original Jurisdiction (AOJ) performed additional development and the Veteran was afforded a new VA examination. The Board finds that there has been substantial compliance with its remand. See Stegall v. West, 11 Vet. App. 268 (1998). The issue of vertigo secondary to hearing loss and tinnitus has been raised by the record in an August 2014 claim, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2017). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDINGS OF FACT 1. From July 12, 2011 to June 15, 2014, the Veteran has manifested no worse than Level XI hearing acuity in the right ear and Level IV hearing acuity in the left ear. 2. From June 16, 2014 to November 17, 2016, the Veteran has manifested no worse than Level XI hearing acuity in the right ear and Level VI hearing acuity in the left ear. 3. Since November 18, 2016, the Veteran has manifested no worse than Level XI hearing acuity in the right ear and Level VII hearing acuity in the left ear. CONCLUSION OF LAW The criteria for an initial disability rating in excess of 30 percent for bilateral hearing loss from July 12, 2011, in excess of 50 percent from June 16, 2014, and in excess of 60 percent from November 18, 2016, have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.85, 4.86, DC 6100 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran contends that his service-connected bilateral hearing loss is more disabling than reflected by the current disability rating. Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 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. In determining the severity of a disability, the Board is required to consider 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 the Veteran's disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as "staging the ratings." See Fenderson v. West, 12 Vet. App. 119 (1999). Ratings for hearing loss disability are based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination testing together with the average hearing threshold level, in decibels (dB) as measured by pure tone audiometric tests in the frequencies 1,000, 2,000, 3,000 and 4,000 Hertz (Hz). See 38 C.F.R. § 4.85, DC 6100. An examination for hearing impairment for VA purposes must include a controlled speech discrimination test (Maryland CNC). Id. To evaluate the degree of disability from defective hearing, the rating schedule requires assignment of a Roman numeral designation, ranging from I to XI. Other than exceptional cases, VA arrives at the proper designation by mechanical application of Table VI, which determines the designation based on results of standard test parameters. Id. Table VII is then applied to arrive at a rating based upon the respective Roman numeral designations for each ear. Id. Exceptional patterns of hearing impairment allow for assignment of the Roman numeral designation through the use of Table VI or an alternate table, Table VIA, whichever is more beneficial to the Veteran. 38 C.F.R. § 4.86. This applies to two patterns. In both patterns each ear will be evaluated separately. Id. The first pattern is where the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hz) is 55 dB or more. 38 C.F.R. § 4.86(a). The second pattern is where the pure tone threshold is 30 decibels or less at 1000 Hz and 70 dB or more at 2000 Hz. Id. If the second pattern exists, the Roman numeral will be elevated to the next higher numeral. Id. As the evidence described below shows, neither of the patterns are present in this case. I. For the period from July 12, 2011 to June 16, 2014 Audiograms in January 2012 and April 2012 indicate bilateral hearing loss. The January 2012 audiogram notes sloping sensorineural hearing loss (SNHL) in the left ear and profound hearing loss in the right ear. The Veteran was afforded a VA audiology examination in October 2012. The examination revealed left ear auditory thresholds in the frequencies 1000, 2000, 3000, and 4000 Hertz as 40, 75, 80, and 80, respectively; for the right ear, auditory thresholds in the same frequencies were recorded as 105 for all thresholds. Average loss in the left ear was 69, and average loss in the right ear was 105. Speech recognition ability was 80 percent in the left ear and 0 percent in the right ear. The results of this examination corresponded to Level XI hearing in the right ear and Level IV hearing in the left ear. 38 C.F.R. § 4.85(b). When these values are applied to Table VII, a 30 percent disability rating is assigned. 38 C.F.R. § 4.85. That examination report also indicates that the examiner considered the functional impact of the hearing loss in that the examiner elicited from the Veteran that, in the Veteran's estimation, he cannot understand much and he cannot hear anything with his right ear. A January 2013 audiogram indicates similar results to the October 2012 results. II. For the period from June 16, 2014 to November 18, 2016 The Veteran underwent a VA audiology examination on June 16, 2014. The examination revealed left ear auditory thresholds in the frequencies 1000, 2000, 3000, and 4000 Hertz as 45, 75, 80, and 85, respectively; for the right ear, auditory thresholds in the same frequencies were recorded as 105 for all thresholds. Average loss in the left ear was 71, and average loss in the right ear was 105. Speech recognition ability was 72 percent in the left ear and 0 percent in the right ear. The results of this examination corresponded to Level XI hearing in the right ear and Level VI hearing in the left ear. 38 C.F.R. § 4.85(b). When these values are applied to Table VII, a 50 percent disability rating is assigned. 38 C.F.R. § 4.85. The examination report indicates that the examiner considered the Veteran's report of functional loss. The report indicates that the Veteran reported that he has difficulty understanding conversation and is "lost" without his hearing aids. The Veteran underwent a VA examination in December 2014. The report indicates the same findings as the June 2014 examination. VA treatment records received in December 2014 and February 2017 do not indicate an increase in the severity of the Veteran's bilateral hearing loss. III. For the period since November 18, 2016 The Veteran was afforded a VA audiology examination in March 2017. The examination revealed left ear auditory thresholds in the frequencies 1000, 2000, 3000, and 4000 Hertz as 45, 80, 90, and 100, respectively; for the right ear, auditory thresholds in the same frequencies were recorded as 105 for all thresholds. Average loss in the left ear was listed as 79, and average loss in the right ear was 105. Speech recognition ability was 60 percent in the left ear and 0 percent in the right ear. The results of this examination corresponded to Level XI hearing in the right ear and Level VII hearing in the left ear. 38 C.F.R. § 4.85(b). When these values are applied to Table VII, a 60 percent disability rating is assigned. 38 C.F.R. § 4.85. The examination report indicates that the Veteran described the functional impact of his hearing loss as difficulty understanding conversation. The Board has considered whether a higher evaluation for hearing loss during any time period on appeal is warranted under 38 C.F.R. § 4.86 for the Veteran's left ear hearing loss disability. Based on the audiometric findings, however, the Veteran's left ear disability did not meet the requirements of 38 C.F.R. § 4.86. In this regard, the Veteran's left ear did not have pure tone thresholds of 55 decibels or more at each of the frequencies of 1000, 2000, 3000 and 4000 Hertz or a pure tone threshold of 30 decibels or less at 1000 hertz and 70 decibels or more at 2000 Hertz. The Veteran's right ear evaluation of XI is the highest available designation. Based on these results, the Board concludes that an increased rating for the Veteran's bilateral hearing loss is not warranted for any stage of his appeal. It is apparent that the assigned disability evaluations for the appeal periods for the Veteran's bilateral hearing loss are accurate and appropriately reflect his hearing loss under the provisions of 38 C.F.R. §§ 4.85 and 4.86. In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to an increased evaluation for his bilateral hearing loss under 38 C.F.R. §§ 4.85 or 4.86, DC 6100. In the Veteran's hearing on November 18, 2016, he testified that his hearing breaks down and that he cannot stand loud noise because it makes his head hurt. The Veteran testified that his right ear is completely deaf and has only 60 percent hearing in his left ear. The Veteran's spouse testified that the Veteran's condition dramatically worsened over the last five years and that she has to get close to him so that he can hear her. The Veteran testified that he receives treatment from the VA for his hearing loss. In a September 2014 statement, the Veteran, through his representative, indicated that he disagreed with his hearing loss evaluation. The Veteran contends that if VA rated his hearing loss for the right ear alone, the disability rating would have been greater. The statement indicates that the Veteran has stated that his hearing loss is very disabling, noting that he cannot hear his wife, he cannot hear oncoming traffic, and that the total loss of hearing in one ear has caused him additional disability, such as instability and loss of balance, which has caused him to fall. The Board has considered the statements made by the Veteran and his spouse regarding the Veteran's hearing loss and the impact it has on the Veteran's daily life. The Board has also considered the Veteran's statements indicating that his bilateral hearing loss claim should be separated and each ear rated individually. However, the assignment of disability evaluations for hearing impairment is a mechanical application of the rating criteria from which the Board cannot deviate. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). This argument is one best described as seeking an extraschedular evaluation under 38 C.F.R. § 3.321(b). However, there is nothing in the record to indicate that the Veteran has any symptom of his hearing loss that is not contemplated by the rating schedule, or that his hearing loss has resulted in marked interference with employment or in frequent hospitalizations or any factor of like kind. As such, referral for extraschedular consideration is not warranted. See Thun v. Peake, 22 Vet. App. 111, 115-16 (2008). The Board finds that the preponderance of the evidence is against an increased rating for bilateral hearing loss for all periods on appeal, and the appeal as to a higher rating for this disability must be denied. There is no reasonable doubt to be resolved as to this issue. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. ORDER An initial disability rating in excess of 30 percent for bilateral hearing loss from July 12, 2011, in excess of 50 percent from June 16, 2014, and in excess of 60 percent from November 18, 2016, is denied. ____________________________________________ JAMES G. REINHART Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs