Citation Nr: 1753818 Decision Date: 11/24/17 Archive Date: 12/01/17 DOCKET NO. 14-02 236 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUE Entitlement to an initial compensable rating for a left ear hearing loss disability. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Samantha A. Prinsen, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Marine Corps from June 1970 to June 1972 and January 1991 to April 1992. This matter is before the Board of Veterans' Appeal (Board) on appeal of a July 2010 rating decision of the Boston, Massachusetts, Regional Office (RO) of the Department of Veterans Affairs. In June 2015, the Board remanded the case for further development, which has been completed. Stegall v. West, 11 Vet. App. 268, 271 (1998). In the Board's prior decision, the issue on appeal was noted as bilateral hearing loss. Per the rating decision of July 2010, only the Veteran's left ear is service-connected. Therefore, the issue on appeal is for an initial compensable rating for left ear hearing loss only. The issue of entitlement to service connection for a right ear hearing loss disability has been raised by the record in an August 2010 statement, 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). FINDING OF FACT Throughout the appeal period, the Veteran's left ear hearing loss has remained at level I hearing acuity. CONCLUSION OF LAW The criteria for a compensable disability rating for service connected left ear hearing loss have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.321, 4.1, 4.5, 4.7 4.10, 4.85, 4.86 Diagnostic Code (DC) 6100 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist VA has a duty to provide notice of the information and evidence necessary to substantiate a claim. 38 U.S.C. § 5103(a); 38 C.F.R. § 3.159(b). Neither the Veteran, nor his representative, has alleged prejudice with regard to the duty to notify or assist. The Federal Court of Appeals has held that "absent extraordinary circumstances. . . it is appropriate for the Board and the Veterans Court to address only those procedural arguments specifically raised by the veteran...." Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015). II. Compensable Rating Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 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 the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. The Veteran's entire history is reviewed when making disability evaluations. See generally 38 C.F.R. § 4.1 (2017); Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where, as here, the question for consideration is the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection and consideration of the appropriateness of a staged rating are required. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). VA adjudicators must consider whether to "stage" the ratings, meaning assign different ratings at different times during the rating period to compensate him for times when the disability may have been more severe than at others. The Court has held that consideration of the appropriateness of a staged rating is required for increased rating claim. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). If the evidence for and against a claim is in equipoise, the claim will be granted. 38 C.F.R. § 4.3. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. 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 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. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). An examination for hearing impairment for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a puretone audiometry test. 38 C.F.R. § 4.85. The rating schedule establishes 11 auditory hearing acuity levels based upon average puretone thresholds and speech discrimination. See 38 C.F.R. § 4.85. "Puretone threshold average" as used in Tables VI and VIa is the sum of the puretone thresholds at 1000, 2000, 3000 and 4000 Hertz and divided by four. This average is used in all cases (including those of § 4.86) to determine a Roman numeral designation from Tables VI and VIa. 38 C.F.R. § 4.85(d). Table VI, "Numeric Designation of Hearing Impairment Based on Puretone Threshold Average and Speech Discrimination," is used to determine a Roman numeral designation (I through XI) for hearing impairment based on a combination of the percent of speech discrimination (horizontal rows) and the puretone threshold average (vertical columns). The Roman numeral designation is located at the point where the row and column intersect. 38 C.F.R. § 4.85(b). Table VIa, "Numeric Designation of Hearing Impairment Based Only on Puretone Threshold Average," is used to determine a Roman numeral designation (I through XI) for hearing impairment based only on puretone threshold average. Table VIa is used when the examiner certifies that the use of the speech discrimination test is not appropriate due to language difficulties, inconsistent speech discrimination scores, etc., or when indicated under the provisions of § 4.86. 38 C.F.R. § 4.85(c). Table VII, "Percentage Evaluations of Hearing Impairment," is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment in each ear. The horizontal rows represent the ear having better hearing and the vertical columns represent the ear having the poorer hearing. The percentage evaluation is located at the point where the row and the column intersect. 38 C.F.R. § 4.85(e). Special provisions apply in instances of exceptional hearing loss. See 38 C.F.R. § 4.86. When the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) are all 55 decibels or more, the adjudicator must determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa in 38 C.F.R. § 4.85, whichever results in the higher numeral. 38 C.F.R. § 4.86(a). 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 is evaluated separately. 38 C.F.R. § 4.86(b). The Board notes that since service connection is in effect for only one ear, the nonservice-connected ear will be assigned a Roman Numeral I. 38 C.F.R. § 4.85 (f). The Court 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). In July 2010, the RO granted service connection for left ear hearing loss and assigned a noncompensable initial rating. The Veteran contends that his service-connected left ear hearing loss deserves a compensable rating. For the following reasons, the Board finds that a compensable rating is not warranted. In March 2010, the Veteran underwent a VA audiological examination. His puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 LEFT 5 10 15 20 40 Average puretone threshold of the left ear was 21.25. Speech recognition score was 92 percent. The audiologist concluded that the Veteran has sensorineural hearing loss in the left ear. The VA examiner noted that the effect of the Veteran's service-connected left ear hearing loss on his usual occupation and daily activity is not an issue. In September 2013, the Veteran was afforded a second VA audiological examination. He reported difficulty differentiating high pitched speech sounds that made it difficult for him to hear during conversations and when listening over a phone or radio. His puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 LEFT 5 15 20 25 40 Average puretone threshold of the left ear was 25. Speech recognition score was 96 percent. The audiologist concluded that the Veteran has sensorineural hearing loss in the left ear. The examiner noted that the Veteran's service-connected left ear hearing loss causes difficulty differentiating high pitched speech sounds, along with difficulty hearing speech in conversation, listening to someone talk on a call, or through the radio at work. In August 2016, the Veteran was afforded a third VA audiological examination. His puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 LEFT 15 20 25 25 45 Average puretone threshold of the left ear was 29. Speech recognition score was 98 percent. The audiologist concluded that the Veteran has sensorineural hearing loss in the left ear. The Veteran reported difficulty hearing background noise and the television. The VA examiner acknowledged the Veteran's reported functional impairments. As such, under Table VI of 38 C.F.R. § 4.85, the findings from the March 2010, September 2013, and August 2016 VA examinations are equivalent to level I hearing loss in the left ear, and since the Veteran's right ear is not service-connected for hearing loss it is considered level I for rating purposes. Applying the level I hearing findings to Table VII, results in a noncompensable rating. Thus, the Veteran is not entitled to a compensable rating for hearing loss. 38 C.F.R. § 4.85(f). The Board acknowledges the Veteran's reported symptoms of difficulty hearing speech and listening over the phone and radio. While the Board does not doubt the sincerity of the Veteran's assertions regarding the severity of his hearing loss, or its functional impact, the Board must apply the regulation as it is currently written, which requires objective audiometric testing at certain levels to qualify for higher compensation. The Board has considered the application of the exceptional patterns of hearing loss and finds the Veteran's test results do not meet the criteria of 38 C.F.R. § 4.86(a). The Board has also considered various other provisions, including 38 C.F.R. § 3.321 (b)(1), for exceptional cases where schedular evaluations are found to be inadequate. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); Thun v. Shinseki, 573 1366 (Fed. Cir. 2009). As noted above, the Veteran's symptoms are not productive of, or consistent with, the criteria for a compensable rating. The Board has duly considered staged ratings, pursuant to Hart, supra, but finds the 0 percent rating assigned is appropriate for the entire rating period. In this matter, a referral for extraschedular consideration is not warranted because the evidence does not indicate anything extraordinary about the Veteran's hearing loss. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (the rating criteria for hearing loss contemplate the functional effects of decreased hearing and difficulty understanding speech in different contexts, to include in an everyday work environment and in work settings in the presence of environmental noise, as these are precisely the effects that VA's audiometric test are designed to measure). The preponderance of the evidence is against the Veteran's claim, there is no doubt to be resolved, and therefore, the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER A compensable rating for a left ear hearing loss disability is denied. ____________________________________________ KRISTI L. GUNN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs