Citation Nr: 1753685 Decision Date: 11/22/17 Archive Date: 12/01/17 DOCKET NO. 11-23 452 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to an initial compensable rating for bilateral hearing loss prior to April 1, 2011. 2. Entitlement to a rating in excess of 20 percent for bilateral hearing loss from April 1, 2011 to March 26, 2013. 3. Entitlement to a rating in excess of 30 percent for bilateral hearing loss from March 26, 2013 to May 1, 2017. 4. Entitlement to a rating in excess of 40 percent for bilateral hearing loss from May 1, 2017. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD J. Fowler, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Marine Corps from June 1969 to June 1973 and in the United States Army from February 1975 to February 1979. This appeal comes to the Board of Veterans' Appeals (Board) from a June 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. The June 2010 rating decision granted service connection for bilateral hearing loss and assigned an initial noncompensable disability rating. In a June 2013 rating decision, the RO increased the Veteran's disability rating for hearing loss to 20 percent, effective April 1, 2011, and to 30 percent effective March 26, 2013. In June 2016, the Board remanded the issue of increased rating for bilateral hearing loss to obtain medical records. The requested development is completed and the case is before the Board for further appellate action. See Stegall v. West, 11 Vet. App. 268 (1998). In April 2017, the RO resolved the service connection claim by issuing a rating decision granting service connection for PTSD with an evaluation of 70 percent effective December 1, 2009. In a September 2017 informal hearing presentation (IHP), the Veteran's representative indicated disagreement with the initial rating assigned by the RO. Generally, the filing of a Notice of Disagreement (NOD) places a matter into appellate status, requiring the Board to remand for issuance of a Statement of the Case (SOC). See 38 C.F.R. §§ 3.103(f), 19.9(c) (2015). However, effective March 24, 2015, VA will only accept an expression of dissatisfaction or disagreement with an adjudicative determination by the agency of original jurisdiction (AOJ) as a valid NOD if it is submitted on a standardized form provided by VA for the purpose of appealing the decision, in cases where such a form is provided. See 38 C.F.R. § 20.201 (from March 24, 2015); also 79 Fed. Reg. 57698; VA Form 21-0958, "NOTICE OF DISAGREEMENT." Because the IHP does not constitute a valid NOD, the Board can take no further action on this matter. In a May 2017 rating decision, the RO granted an increased rating for the Veteran's service connected bilateral hearing loss from 30 percent to 40 percent effective May 1, 2017. When a veteran seeks an increased evaluation, it will generally be presumed that the maximum benefit allowed by law and regulation is sought, and it follows that such a claim remains in controversy where less than the maximum benefit available is awarded. See AB v. Brown, 6 Vet. App. 35 (1993). FINDINGS OF FACT 1. Prior to April 1, 2011, the Veteran's hearing acuity was level I in the right ear and level II in the left ear. 2. From April 1, 2011 to March 26, 2013, the Veteran's hearing acuity was level V in the right ear and level VI in the left ear. 3. From March 26, 2013 to May 1, 2017, the Veteran's hearing acuity was level V in the right ear and level VII in the left ear. 4. From May 1, 2017, the Veteran's hearing acuity was level VII in the right ear and level VIII in the left ear. CONCLUSIONS OF LAW 1. The criteria for an initial compensable disability rating for the Veteran's bilateral hearing loss, prior to April 1, 2011, have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.10, 4.85, 4.86, Diagnostic Code (DC) 6100 (2017) 2. The criteria for a disability rating in excess of 20 percent for the Veteran's bilateral hearing loss, from April 1, 2011 to March 26, 2013, have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.10, 4.85, 4.86, DC 6100 (2017). 3. The criteria for a disability rating in excess of 30 percent for the Veteran's bilateral hearing loss, from March 26, 2013 to May 1, 2017, have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.10, 4.85, 4.86, DC 6100 (2017). 4. The criteria for a disability rating in excess of 40 percent for the Veteran's bilateral hearing loss, from May 1, 2017, have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.10, 4.85, 4.86, DC 6100 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist VA's duty to notify was satisfied by a December 2009 letter. 38 U.S.C. §§ 5102, 5103, 5103A; 38 C.F.R. § 3.159; Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). VA must make reasonable efforts to assist the Veteran in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claims. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. The Veteran has not identified any additional records that should be obtained prior to a Board decision. See 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The Veteran was provided VA examinations to address his increased evaluation claim in March 2010, April 2011, March 2013, and May 2017. The examiners conducted a physical examination, reviewed the claims file, and discussed pertinent symptomatology, functional impact, and provided rationales for all opinions expressed. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Martinak v. Nicholson, 21 Vet. App. 447 (2007). All relevant facts have been adequately developed to the extent possible; no further assistance to the Veteran in developing the facts pertinent to the issue on appeal is required to comply with the duty to assist. 38 U.S.C. §§ 5103 and 5103A; 38 C.F.R. § 3.159. II. Relevant Laws and Regulations Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. §1155; 38 C.F.R. §4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. §4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the claimant. 38 C.F.R. § 4.3. Staged ratings are 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. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's disability should be viewed in relation to its history. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Given the nature of the present claim for a higher initial evaluation, the Board has considered all evidence of severity since the effective date for the award of service connection. Fenderson v. West, 12 Vet. App. 119 (1999). Ratings of hearing loss range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of speech discrimination tests combined with the average hearing threshold levels as measured by pure tone audiometry tests in the frequencies 1000, 2000, 3000, and 4000 Hertz. To rate the degree of disability for hearing loss, the Rating Schedule has established eleven auditory acuity levels, designated from Level I, for essentially normal acuity, through Level XI, for profound deafness. 38 C.F.R. § 4.85(h), Table VI. The assignment of disability ratings for hearing impairment is derived by a mechanical application of the Rating Schedule to the numeric designations assigned after audiometric evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). The criteria for rating hearing impairment use controlled speech discrimination tests (Maryland CNC) together with the results of pure tone audiometry tests. These results are then charted on Table VI, or Table VIA in exceptional cases as described in 38 C.F.R. § 4.86, and Table VII. 38 C.F.R. § 4.85. An exceptional pattern of hearing loss occurs when the pure tone threshold at 1000, 2000, 3000, and 4000 Hertz is 55 decibels or more, or when the pure tone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz. 38 C.F.R. § 4.86. In such cases, the Roman numeral value is determined using both Table VI and VIA and whichever table results in a higher Roman numeral value is used to calculate a disability evaluation using Table VII. Id. III. Increased Rating for Bilateral Hearing Loss A. Prior to April 1, 2011 The Veteran seeks entitlement to an initial compensable rating for bilateral hearing loss prior to April 1, 2011. The Veteran underwent a VA examination in March 2010. The Veteran's pure tone thresholds, in decibels, were: HERTZ 500 1000 2000 3000 4000 AVG (B-E) CNC% RIGHT 15 25 20 45 55 36 100 LEFT 20 25 20 55 60 40 88 Using Table VI, the Veteran's March 2010 test results yield numeric hearing impairment designation of I in his right ear and II in his left ear. Combining these levels using table VII of § 4.85 results in a zero percent (noncompensable) disability rating. The Veteran reported that he had to ask people to repeat themselves and turn up the volume on the television and radio. In a June 2010 rating decision, the RO awarded the Veteran service connection for bilateral hearing loss and assigned it a noncompensable rating. Neither the Veteran, nor the evidence, suggest that the severity of the Veteran's hearing loss is greater than what is recorded in the March 2010 VA examination. Accordingly, the Board finds the preponderance of the evidence does not support a finding that the Veteran is entitled to a compensable rating for bilateral hearing loss prior to April 1, 2011. B. April 1, 2011 to March 26, 2013 The Veteran seeks entitlement for a rating in excess of 20 percent for bilateral hearing loss from April 1, 2011 to March 26, 2013. The Veteran underwent a VA examination in April 2011. The Veteran's pure tone thresholds, in decibels, were: HERTZ 500 1000 2000 3000 4000 AVG (B-E) CNC% RIGHT 30 35 50 80 85 63 72 LEFT 40 45 60 85 100 73 72 Using Table VI, the Veteran's April 2011 test results yield numeric hearing impairment designation of V in his right ear and VI in his left ear. Combining these levels using table VII of § 4.85 results in a 20 percent disability rating. An April 2012 VA graphical audiogram is of record. As fact-finding is a proper function of the Board, the Board may interpret the graphical representation contained in the audiogram into numerical results so as to appropriately rate the hearing disability. See Kelly v. Brown, 7 Vet. App. 471, 474 (1995). The Veteran's pure tone thresholds, in decibels, were: HERTZ 500 1000 2000 3000 4000 RIGHT 35 40 50 65 75 LEFT 45 50 60 70 85 The average in the right ear was 58 and the average in the left ear was 66. However, the audiogram is not usable for rating purposes as speech recognition results were not recorded. In a June 2013 rating decision, the RO awarded an evaluation of 20 percent for the Veteran's bilateral hearing loss with an effective date of April 1, 2011. Neither the Veteran, nor the evidence, suggest that the severity of the Veteran's hearing loss is greater than what is recorded in the April 2011 VA examination. Accordingly, the preponderance of the evidence does not support a finding that the Veteran is entitled to a rating in excess of 20 percent for bilateral hearing loss from April 1, 2011 to March 26, 2013. C. March 26, 2013 to May 1, 2017 The Veteran seeks entitlement for a rating in excess of 30 percent for bilateral hearing loss from March 26, 2013 to May 1, 2017. The Veteran underwent a VA examination in March 2013. The Veteran's pure tone thresholds, in decibels, were: HERTZ 500 1000 2000 3000 4000 AVG (B-E) CNC% RIGHT 40 45 55 75 85 65 68 LEFT 40 50 55 80 95 70 60 Using Table VI, the Veteran's March 2013 test results yield numeric hearing impairment designation of V in his right ear and VII in his left ear. Combining these levels using table VII of § 4.85 results in a 30 percent disability rating. In a June 2013 rating decision, the RO awarded an evaluation of 30 percent with an effective date of March 26, 2013. Neither the Veteran, nor the evidence, suggest that the severity of the Veteran's hearing loss is greater than what is recorded in the March 2013 VA examination. Accordingly, the preponderance of the evidence does not support a finding that the Veteran is entitled to a rating in excess of 30 percent for bilateral hearing loss from March 26, 2013 to May 1, 2017. D. After May 1, 2017 The Veteran seeks entitlement for a rating in excess of 40 percent for bilateral hearing loss after May 1, 2017. The Veteran underwent a VA examination in May 2017. The Veteran's pure tone thresholds, in decibels, were: HERTZ 500 1000 2000 3000 4000 AVG (B-E) CNC% RIGHT 45 50 65 90 95 75 60 LEFT 50 60 65 85 100 78 56 Using Table VI, the Veteran's May 2017 test results yield numeric hearing impairment designation of VII in his right ear and VIII in his left ear. Combining these levels using table VII of § 4.85 results in a 40 percent disability rating. The Veteran's left ear shows a pattern of exceptional hearing loss because the pure tone threshold at 1000, 2000, 3000, and 4000 Hertz is 55 decibels or more. 38 C.F.R. § 4.86. Using Table VIa yields a hearing impairment designation of VII in the left ear, which is less favorable. Therefore, Table VIa will not be used to calculate his disability rating. In a May 2017 rating decision, the RO awarded an evaluation of 40 percent with an effective date of May 1, 2017. The Veteran's most favorable evidence in support of a rating in excess of 40 percent for bilateral hearing loss from May 1, 2017 is his statement of functional impairment. In the May 2017 VA examination, the Veteran contends that his service connected bilateral hearing loss impacts ordinary conditions of daily life. The Veteran states he has difficulty hearing speech and communicating. However, the functional impact that the Veteran describes, such as difficulty talking on the phone, hearing normal-toned conversations, or understanding speech in the presence of background noise, are contemplated by the rating criteria. Doucette v. Shulkin, 28 Vet. App. 366 (2017). His subjective report of difficulty hearing under situational circumstances unfortunately cannot be the basis for an increased rating. The Board is bound to apply the VA rating schedule, under which the rating criteria are defined by audiometric test findings involving hearing acuity in a controlled laboratory environment. Here, a rating in excess of 40 percent for bilateral hearing loss after May 1, 2017 is not warranted. 38 C.F.R. § 4.85. Accordingly, the preponderance of the evidence does not support a finding that the Veteran is entitled to a rating in excess of 40 percent for bilateral hearing loss from May 1, 2017. The Board acknowledges that at the May 2017 examination, the Veteran reported he lost his job in 2009 due to not being able to hear certain sounds he needed to do his job as an instrumentation mechanic. However, in an August 2016 VA examination for PTSD, the Veteran reported a favorable work history of 27 years with no history of conflicts or terminations. The Veteran states that he accepted an offer of early retirement in lieu of being laidoff, when his employer decided to layoff middle management. In determining credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498, 511 (1995). VA may not discredit a veteran's testimony simply because he is an interested party and stands to gain monetary benefits; however, personal interest may affect the credibility of the evidence. Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991). The Board finds the Veteran's August 2016 statement most credible, because the purpose of the examination was for PTSD, not hearing loss. Caluza, 7 Vet. App. at 511. Therefore, the Board finds that the issue of entitlement to total disability based on individual unemployability (TDIU) has not been raised by the record. See Rice v. Shinseki, 22 Vet. App 447 (2009). ORDER Entitlement to a compensable rating for bilateral hearing loss from prior to April 1, 2011 is denied. Entitlement to a rating in excess of 20 percent for bilateral hearing loss from April 1, 2011 to March 26, 2013 is denied. Entitlement to a rating in excess of 30 percent for bilateral hearing loss from March 26, 2013 to May 1, 2017 is denied. Entitlement to a rating in excess of 40 percent for bilateral hearing loss from May 1, 2017 is denied. ____________________________________________ D. Martz Ames Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs