Citation Nr: 1753435 Decision Date: 11/21/17 Archive Date: 12/01/17 DOCKET NO. 14-06 933 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Togus, Maine THE ISSUE Entitlement to an increased rating for bilateral hearing loss, currently rated as 10 percent disabling. REPRESENTATION Appellant represented by: Penelope E. Gronbeck, Attorney-at-Law WITNESSES AT HEARING ON APPEAL Appellant and his wife ATTORNEY FOR THE BOARD N. Rippel, Counsel INTRODUCTION The Veteran had active duty service from August 1958 to May 1964. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2014 rating decision by the Regional Office (RO) of the Department of Veterans Affairs (VA) in Togus, Maine. The Veteran was afforded a November 2014 Board videoconference hearing before a Veterans Law Judge. A transcript is of record. The Veterans Law Judge who conducted the November 2014 hearing is no longer employed at the Board. In a September 2017 letter, the Veteran was notified that the Veterans Law Judge who conducted the hearing was no longer employed at the Board. Pursuant to 38 U.S.C. § 7101 (c) (West 2014), the Veteran was offered an opportunity to testify at a hearing before a Veterans Law Judge who could participate in making a final determination on his claim. The Veteran responded in September 2017, through his attorney, that he did not wish to appear at another Board hearing. Therefore, the Board finds that VA has fulfilled its duty in providing the Veteran an opportunity for another hearing In July 2015, the Board issued a decision remanding this matter to the Agency of Original Jurisdiction (AOJ) for additional development. As sufficient efforts were made to obtain the noted medical records and the requested medical examination was obtained, the Board finds the directives have been substantially complied with, and the matter again is before the Board. Stegall v. West, 11 Vet. App. 268, 271 (1998). The record contains evidence not yet considered by the AOJ, including VA treatment records dated and received after the issuance of the March 2017 supplemental statement of the case (SSOC). However, based on the date of receipt of his substantive appeal in August 2014, a waiver of AOJ consideration of this evidence is not necessary. See § 501, Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Public Law (PL) 112-154. Therefore, the Board may properly consider such evidence and proceed with a decision. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C. § 7107(a)(2) (West 2014). Lastly, we note that in an unrelated matter, a video hearing was requested. That request is refered to the AOJ for action. FINDINGS OF FACT 1. Prior to April 7, 2017, the Veteran's bilateral hearing loss disability is manifested by no greater than level II hearing loss in the right ear and level V hearing loss in the left ear. 2. From April 7, 2017, the Veteran's bilateral hearing loss disability is manifested by no greater than level IV hearing loss in the right ear and level VII hearing loss in the left ear. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 10 percent for a bilateral hearing loss disability have not been met prior to April 7, 2017. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.7, 4.85, 4.86, Diagnostic Code 6100 (2016). 2. The criteria for a disability rating of 20 percent, and no higher, for a bilateral hearing loss disability have been met from April 7, 2017. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.7, 4.85, 4.86, Diagnostic Code 6100 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran asserts he is entitled to a higher rating for his service-connected bilateral hearing loss disability. He has argued, generally, that he has trouble hearing conversations, particularly in noisy environments, on the phone or if someone speaks to him from another room. He cannot understand the television and asks his wife to tell him what is being said. See November 2014 hearing transcript pp. 19-20. His wife has also stated that he cannot understand words and he does not pronounce words well because he cannot hear well. See, e.g., wife's January 2014 and February 2016 written statements. However, the Board notes that the Veteran has reported in both his 2014 and 2016 examinations that the hearing loss had no impact on ordinary conditions of daily life, including ability to work. See Veteran's January 2014 and January 2016 VA audiological examination reports. Also, hearing was not listed as a barrier to learning in a May 2017 telehealth note, and the Veteran was able to communicate adequately at his hearing and during his examinations. As addressed below, the Board finds that the preponderance of the evidence is against finding that the Veteran's bilateral hearing loss disability more nearly approximates the level of severity contemplated by more than a 10 percent rating until April 7, 2017, at which point it more nearly approximates a 20 percent rating, and no higher. A. Law Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. § Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321 (a), 4.1 (2016). Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Here, the service-connected bilateral hearing loss disability materially changed April 7, 2017, and a staged evaluation is assigned as explained below. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Veteran's service-connected bilateral hearing loss is rated as 10 percent disabling pursuant to 38 C.F.R. § 4.85, Diagnostic Code 6100. Under the rating criteria, the method for rating bilateral hearing loss disability is based on 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 auditory acuity level for 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. 38 C.F.R. § 4.85. There is an alternative method of rating hearing loss in defined instances of exceptional hearing loss. Exceptional hearing 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. See 38 C.F.R. § 4.86. The Board further notes the United States Court of Appeals for Veterans Claims has 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." Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). However, the Federal Circuit has noted that such is not part of the rating criteria. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (2009). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. B. Analysis Service connection for bilateral hearing loss was granted in a July 2009 rating decision, and a noncompensable rating was assigned, effective from November 27, 2007. The Veteran filed a claim for increased rating in July 2013. The February 2014 rating decision on appeal granted a 10 percent rating from the date of claim in July 2013. Two VA examinations were accomplished during the period on appeal, and there was a subsequent VA audiology evaluation dated in April 2017 which also contains audiological data relevant to rating this claim. As noted by the Board in the December 2015 remand, an October 2014 audiogram is unclear as to speech discrimination scores and will not be used to evaluate this claim. See 38 C.F.R. § 4.85(a). At the Veteran's January 2014 VA examination, pure tone thresholds, in decibels, and Maryland CNC speech discrimination results were as follows: HERTZ CNC 1000 2000 3000 4000 Avg RIGHT 20 45 75 90 58 94% LEFT 25 75 75 95 68 92% Here, the left ear demonstrates an exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 (a). Applying 38 C.F.R. § 4.85, Table VI, for the right ear and Table VIA for the left ear, to the above audiological findings, the Veteran has a numeric designation of II for the right ear and V for the left ear. Application of 38 C.F.R. § 4.85, Table VII, results in a 10 percent disability evaluation. At the Veteran's January 2016 VA examination, pure tone thresholds, in decibels, and Maryland CNC speech discrimination results were as follows: HERTZ CNC 1000 2000 3000 4000 Avg RIGHT 20 50 75 90 59 92% LEFT 40 80 80 100 75 82% Here, neither ear demonstrates an exceptional pattern of hearing impairment under 38 C.F.R. § 4.86. Applying 38 C.F.R. § 4.85, Table VI, for both ears, to the above audiological findings, the Veteran again has a numeric designation of II for the right ear and V for the left ear. Application of 38 C.F.R. § 4.85, Table VII, results in a 10 percent disability evaluation. At the Veteran's April 2017 VA audiology clinic hearing evaluation, he reported his hearing had declined, particularly in his ability to understand words, even with his hearing aids on. Pure tone thresholds, in decibels, noted as tested in air conduction via TDH headphones, and Maryland CNC speech discrimination results, described as "Maryland CNC-25 recorded" were as follows: HERTZ CNC 1000 2000 3000 4000 Avg RIGHT 25 60 80 105 68 76% LEFT 75 75 80 100 83 76% According to these figures, the left ear again demonstrates an exceptional pattern of hearing impairment under 38 C.F.R. § 4.86. Applying 38 C.F.R. § 4.85, Table VI, for the right ear and Table VIA for the left ear, to the above audiological findings, the Veteran has a numeric designation of IV for the right ear and VII for the left ear. Application of 38 C.F.R. § 4.85, Table VII, results in a 20 percent disability evaluation. Based on a careful review of all the evidence, the Board finds that prior to April 7, 2017, a rating in excess of the currently assigned 10 percent rating for the Veteran's service-connected bilateral hearing loss disability is not warranted. However, as of April 7, 2017, the Board resolves reasonable doubt regarding the degree of disability in favor of the claim and finds that a 20 percent rating, and no higher, is approximated based on the audiological clinic test results. The Board has carefully considered the Veteran's contentions. However, it must be emphasized that the assignment of a schedular disability rating for hearing impairment is derived by a mechanical application of the rating schedule to the numeric designation assigned after valid audiometry results are obtained. Hence, the Board has no discretion in this matter and must predicate its determination on the basis of the results of the audiology studies of record. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). A staged rating is warranted only as set forth above, as the Board finds that the Veteran has had a stable level of symptomatology throughout the period on appeal prior to April 7, 2017, and notes the audiograms prior to that date show a fairly consistent degree of objective impairment. Here, the Board finds that the overall record, consisting not only of examination reports but also treatment records and written statements, persuasively suggests that the level of disability remained uniform prior to April 7, 2017. Significantly, the audiologist in April 2017, noted the Veteran reported that he does not notice his hearing fluctuating. As the preponderance of the evidence is against the claim for increase in excess of 10 percent prior to that date, and in excess of 20 percent as of that date, the benefit-of-the-doubt doctrine is inapplicable. 38 C.F.R. § 4.3. Neither the Veteran nor his representative have raised any other issues, nor have any other issues been reasonably raised by the record as to this claim. See Doucette v. Shulkin, 28 Vet. App. 366 (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); see also Yancy v. McDonald, 27 Vet. App 484 (2016). ORDER Prior to April 7, 2017, a rating in excess of 10 percent for bilateral hearing loss disability is denied. From April 7, 2017, a 20 percent rating, and no higher, is granted for bilateral hearing loss disability, subject to the laws governing the award of monetary benefits. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs