Citation Nr: 1759904 Decision Date: 12/22/17 Archive Date: 01/02/18 DOCKET NO. 12-32 763 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Entitlement to an initial compensable rating for bilateral hearing loss. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Koria B. Stanton, Associate Counsel INTRODUCTION The Veteran had active duty service from February 1970 to April 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. In June 2015, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. In November 2015 and September 2017, the Board remanded the case for additional development and it now returns for further appellate review. FINDING OF FACT For the entire appeal period, the Veteran's bilateral hearing loss is manifested by no worse than Level I hearing in the right ear and no worse than Level I hearing in the left ear. CONCLUSION OF LAW The criteria for an initial compensable rating for bilateral hearing loss have not been met. 38 U.S.C. §§1155, 5107 (2012); 38 C.F.R §§ 4.1, 4.2, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100, and Tables VI, VII (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Preliminary Matters The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991); Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The Board notes that, in her November 2017 Informal Hearing Presentation, the Veteran's representative requested that the case be remanded in order for the Agency of Original Jurisdiction (AOJ) to provide reasons and bases for the continued denial of the Veteran's claim for an initial compensable rating for bilateral hearing loss as the supplemental statement of the case dated October 12, 2017, did not provide any reasons and bases. In this regard, the Board notes that the supplemental statement of the case dated October 13, 2017, provides the complete reasons and bases for the AOJ's continued denial of the Veteran's claim. Therefore, the Board finds that a remand on such basis is not necessary. Further, neither the Veteran nor his representative has alleged any other deficiency with respect to VA's duties to notify or assist. See Scott, supra (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 duty to assist argument). II. Analysis The Veteran claims that his bilateral hearing loss is more severe than as reflected by the currently assigned noncompensable rating. Therefore, he contends that he is entitled to a higher initial rating for such disability. Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. All reasonable doubt will be resolved in the claimant's favor. 38 C.F.R. § 4.3. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. See Fenderson v. West, 12 Vet. App. 119 (1999). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Staged ratings are appropriate for an increased rating claim whenever the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Fenderson at 126; see also Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's service-connected bilateral hearing loss is currently assigned a noncompensable rating under 38 C.F.R. § 4.85, Diagnostic Code 6100, effective April 13, 2010. 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 cycles per second. To rate the degree of disability for service-connected 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. In order to establish entitlement to a compensable rating for hearing loss, it must be shown that certain minimum levels of the combination of the percentage of speech discrimination loss and average pure tone decibel loss are met. 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, Table VIA, in exceptional cases as described in 38 C.F.R. § 4.86, and Table VII, as set out in the Rating Schedule. 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. The Veteran's VA treatment records reveal that, in December 2015, the Veteran underwent a hearing evaluation with findings that included pure tone thresholds of normal to mild through 1.5 kHz, sloping to moderate 2-4 kHz, rising to normal at 6 kHz, sloping to moderately-severe at 8kHz for the left ear; and pure tone thresholds of normal through 1 kHz, sloping to moderate to moderately-severe 1.5-8 kHz for the right ear. Word recognition was 92 percent at 70 dB in the right ear and 92 percent at 75 dB in the left ear. Additionally, a January 2016 VA treatment record notes that the Veteran was fitted with new hearing aids. Such record further revealed that the Veteran was pleased to be hearing better. A February 2016 VA treatment record indicates that the Veteran reported that he did not have any hearing aid problems/complaints; and that he could hear better while using his hearing aids. Here, the Veteran's VA treatment records do not reflect any audiometric findings that suggest a higher degree of impairment of hearing acuity exists at any point during the appeal period. On VA audiological examination in October 2010, the puretone thresholds in decibels at the tested frequencies of 1000, 2000, 3000, and 4000 Hz were 20, 60, 50, and 55, respectively, in the left ear; and were 15, 30, 50, and 55, respectively, in the right ear. The examiner noted that the puretone threshold average in the right ear was 37.5 decibels and the average in the left ear was 46.25 decibels. Speech discrimination was 96 percent in the right ear and 100 percent in the left ear. The examiner found that the Veteran's bilateral hearing loss had no affect on his occupation or daily life. For the right ear, the average pure tone threshold of 37.5 decibels, along with a speech discrimination percentage of 96, warrants a designation of Roman Numeral I under Table I of 38 C.F.R. § 4.85. For the left ear, the average pure tone threshold of 46.5 decibels, along with a speech percentage of 100 percent, warrants a designation of Roman Numeral I under Table I of 38 C.F.R. § 4.85. Under Table VII of 38 C.F.R. § 4.85, where the right ear is Roman Numeral I, and the left ear is Roman Numeral I, the appropriate rating is 0 percent under Diagnostic Code 6100. On VA audiological examination in February 2013, the puretone thresholds in decibels at the tested frequencies of 1000, 2000, 3000, and 4000 Hz were 20, 30, 50, and 55, respectively, in the right ear, and were 20, 55, 50, and 55, respectively, in the left ear. The puretone threshold average in the right ear was 38.75 decibels and the average in the left ear was 45 decibels. Speech discrimination was 100 percent in the right ear and 96 percent in the left ear. At such time, the Veteran reported difficulty with communication as a result of his bilateral hearing loss. Based on the results of this examination, for the right ear, the average pure tone threshold of 38.75 decibels, along with a speech discrimination percentage of 100 warrants a designation of Roman Numeral I under Table I of 38 C.F.R. § 4.85. For the left ear, the average pure tone threshold of 45 decibels, along with a speech percentage of 96 percent warrants a designation of Roman Numeral I under Table I of 38 C.F.R. § 4.85. Under Table VII of 38 C.F.R. § 4.85, where the right ear is Roman Numeral I, and the left ear is Roman Numeral I, the appropriate rating is 0 percent under Diagnostic Code 6100. As stated previously, the Board first remanded the claim in November 2015 in order to afford the Veteran a VA examination so as to determine the current nature and severity of his bilateral hearing loss. In addition, the examiner was directed to describe the functional effects caused by such disability, and to determine whether there was any nerve damage affecting the Veteran's hearing, and if so, whether the auditory thresholds obtained on examination are an accurate reflection of the Veteran's hearing loss disability. In this regard, during the Veteran's June 2015 Board hearing, he testified that when he previously had a hearing test done at Costco, the physician told him that he had nerve damage and hearing aids would not help him. Additionally, the Veteran's representative argued that the Veteran may have nerve damage that is not showing up in examination findings. Thereafter, the Veteran underwent a VA audiological examination in November 2015. The puretone thresholds in decibels at the tested frequencies of 1000, 2000, 3000, and 4000 Hz were 30, 60, 65, and 65, respectively, in the right ear, and were 30, 60, 60, and 65, respectively, in the left ear. The puretone threshold average in the right ear was 55 decibels and the average in the left ear was 54 decibels. Speech discrimination was 94 percent in the right ear and 100 percent in the left ear. Based on the results of this examination, for the right ear, the average pure tone threshold of 55 decibels, along with a speech discrimination percentage of 94 warrants a designation of Roman Numeral I under Table I of 38 C.F.R. § 4.85. For the left ear, the average pure tone threshold of 54 decibels, along with a speech percentage of 100 percent warrants a designation of Roman Numeral I under Table I of 38 C.F.R. § 4.85. Under Table VII of 38 C.F.R. § 4.85, where the right ear is Roman Numeral I, and the left ear is Roman Numeral I, the appropriate rating is 0 percent under Diagnostic Code 6100. Additionally, the November 2015 VA examiner indicated that the Veteran's hearing loss impact his ordinary conditions of daily life, including his ability to work. In this regard, the examiner explained that the Veteran reported that, "I can't hear anything, that is the problem. It is very frustrating, people get tired of me asking them to repeat or not even knowing they said something." Furthermore, the examiner opined that it was at least as likely as not that some of the Veteran's current hearing loss was caused by or a result of an event in his military service. However, as the Board explained in the September 2017 remand, although the November 2015 VA examiner noted that the Veteran was currently service-connected at the noncompensable level for bilateral hearing loss and she was requested to determine whether such level remained appropriate, she only offered an opinion as to whether the Veteran's bilateral hearing loss was related to his military service. The Board further explained that the VA examiner failed to discuss whether there was any nerve damage affecting the Veteran's hearing and how any such nerve damage may have impacted the auditory thresholds obtained on examination. Furthermore, in light of such deficiencies, the Board remanded for an addendum opinion, which was rendered in October 2017. In October 2017, the VA examiner opined that the Veteran had nerve damage as his hearing was permanent and nerve-related (sensorineural) due to military noise exposure; however, it was untrue that "hearing aids would not help [the Veteran]." As rationale for the opinion, the examiner reported that the November 2015 VA examination identified normal sloping to moderately severe sensorineural hearing loss for both ears with a word recognition score of 94 percent for the right ear and 100 percent for the left ear. Here, the examiner explained that, per the medical literature in the American Speech Language and Hearing Association (ASHA), "sensorineural" hearing loss ".... occurs when there is damage to the inner ear (cochlea), or to the nerve pathways from the inner ear to the brain. Most of the time, [sensorineural hearing loss] cannot be medically or surgically corrected. This is the most common type of permanent hearing loss." The examiner further explained that, per such definition, it was correct in saying that the Veteran had nerve damage. Additionally, the October 2017 VA examiner opined that the auditory thresholds obtained during the November 2015 VA examination were an accurate reflection of the Veteran's hearing loss disorder. As rationale for the opinion, the examiner indicated that, per record review, the Veteran underwent audiological testing in December 2015 with the same findings as the November 2015 VA examination. The examiner further indicated that the Veteran was fit with bilateral hearing aids in January 2016, and, during his follow-up telephone appointment in February 2016, the Veteran subjectively reported improvement in hearing with no problems or complaints. The examiner noted that, per review of the Veteran's treatment records, he had returned to the treatment clinic for follow-up hearing aid care. Here, the Board places great probative weight on the October 2017 VA examiner's opinion that (1) the Veteran had nerve damage as his hearing was permanent and nerve-related (sensorineural) due to military noise exposure; however, it was untrue that "hearing aids would not help [the Veteran]"; and (2) the auditory thresholds obtained during the November 2015 VA examination were an accurate reflection of the Veteran's hearing loss disorder. Specifically, such opinion focused on the complex medical questions in the case. As noted in the September 2017 Board remand, the examiner considered the Veteran's June 2015 Board hearing testimony that when he previously had a hearing test done at Costco, the physician told him that he had nerve damage and hearing aids would not help him, and his representative's argument that he may have nerve damage that was not showing up in examination findings. Moreover, such opinion considered all of the pertinent evidence of record, and provided a detailed rationale for the conclusions reached, relying on and citing to the records reviewed. Moreover, the examiner offered clear conclusions with supporting data as well as reasoned medical explanations connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A]medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). The Board has also considered the Veteran's service-connected bilateral hearing loss under 38 C.F.R. § 4.86 for exceptional patterns of hearing impairment. However, the audiometric evidence of record does not show that the Veteran's bilateral hearing loss fits the requirements of an unusual pattern of hearing impairment, as pure tone thresholds at 1000, 2000, 3000, and 4000 Hertz are not 55 decibels or more, and the pure tone threshold is not 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz. Therefore, 38 C.F.R. § 4.86 is not for application in this case. To the extent that the Veteran contends that his bilateral hearing loss is more severe than currently evaluated, the Board observes that the Veteran, while competent to report symptoms capable of lay observation, to include difficulty understanding or hearing when speaking with others in a group or when there is background noise such as from an air conditioning unit, the need to have the volume on the television really loud when watching; problems hearing if not directly facing the individual speaking, the need for others to repeat themselves or raise their voice to be heard, problems hearing through his landline phone at home although the volume is turned up to the maximum, the need to change his standing/sitting position in order to listen through his right ear, and problems distinguishing words that sound similar, he is not competent to report that his hearing acuity is of sufficient severity to warrant a 10 percent or greater evaluation under VA's tables for rating hearing loss disabilities because such an opinion requires medical expertise (training in evaluating hearing impairment), which he has not been shown to have. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2006); Charles v. Principi, 16 Vet. App. 370 (2002); Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Despite the foregoing, the Board acknowledges the Veteran's aforementioned reports of the difficulties his bilateral hearing loss results in. However, even after considering such contentions as to the effects of the disability on his daily life, the Board finds that the criteria for a compensable evaluation are not met. See Lendenmann, supra (assignment of disability ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered). In this regard, in Doucette v. Shulkin, 28 Vet. App. 366 (2017), the United States Court of Appeals for Veterans Claims held that the rating criteria for hearing loss contemplate the functional effects of decreased hearing and difficulty understanding speech in an everyday work environment as these are the effects that VA's audiometric tests are designed to measure. The Veteran has not otherwise described functional effects that are considered exceptional or, that are not otherwise contemplated by the assigned evaluation. Id. Thus, his complete disability picture is compensated under the rating schedule. Further, neither he nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. Id. (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). The Board has also considered whether staged ratings under Fenderson, supra, are appropriate for the Veteran's service-connected bilateral hearing loss; however, the Board finds that his symptomatology has been stable throughout the appeal period. Therefore, assigning staged ratings for such disability is not warranted. Therefore, the Board finds that an initial compensable rating for bilateral hearing loss is not warranted. In reaching such determination, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim. Therefore, the benefit of the doubt doctrine is not applicable in the instant appeal and his initial rating claim must be denied. See 38 U.S.C. § 5107; 38 C.F.R. §§4.3, 4.7. ORDER An initial compensable rating for bilateral hearing loss is denied. ____________________________________________ A. JAEGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs