Citation Nr: 1800374 Decision Date: 01/04/18 Archive Date: 01/19/18 DOCKET NO. 10-24 963 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to higher staged ratings for bilateral hearing loss, currently rated noncompensable prior to August 24, 2011 and 20 percent from August 24, 2011. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Espinoza, Associate Counsel INTRODUCTION The Veteran had active service from September 1974 to May 1996. These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. The August 2009 rating decision, in pertinent part, granted service connection for left ear hearing loss and assigned a noncompensable evaluation effective April 13, 2009, the date of receipt of the claim for bilateral hearing loss. The August 2009 rating decision also, in pertinent part, denied service connection for right hearing loss. Jurisdiction rests with the RO in Roanoke, Virginia. This case was before the initially in January 2016 and April 2017. In January 2016, the Board granted service connection for right ear hearing loss and remanded the claim for entitlement to service connection generalized arthritis, to include gout, and entitlement to an initial compensable evaluation for left hearing loss. The Board's January 2016 decision as to the award of service connection for right ear hearing loss was effectuated in an April 2016 rating decision. The April 2016 rating decision granted entitlement to service connection for right ear hearing loss, effective April 13, 2009, the date VA received the claim for service connection for bilateral hearing loss, and assigned staged initial ratings for bilateral hearing loss of noncompensable from April 13, 2009 through August 23, 2011, and 20 percent from August 24, 2011. In April 2017, the Board denied entitlement to service connection generalized arthritis, to include gout, and remanded the issue of entitlement to higher staged initial evaluations for bilateral hearing loss for further development. It now returns for appellate review. In February 2011, the Veteran testified at a local hearing before a Decision Review Officer. A transcript of that hearing is of record. On his December 2011 VA Form 9, substantive appeal, the Veteran requested a Board hearing. However, in May 2015 correspondence, the Veteran's representative indicated that the Veteran no longer desired a Board hearing. Therefore, the Board finds that the Veteran's request for a Board hearing has been withdrawn, and will proceed with appellate review. 38 C.F.R. § 20.704 (e) (2017). The United States Court of Appeals for Veterans Claims has held that a request for a total disability rating due to individual employability resulting from service-connected disability (TDIU), whether expressly raised by a veteran or reasonably raised by the record, is not a separate claim for benefits, but is rather part of the adjudication of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447 (2009). Thus, when entitlement to a TDIU is raised during the appeal of a rating for a disability, it is part of the claim for benefits for the underlying disability. Id. at 454. In this case, most recently, during the June 2017 hearing loss and tinnitus disability benefits questionnaire, although the Veteran reported his service-connected bilateral hearing loss interfered with employment, he further reported he was currently employed as a car salesman. Therefore, the issue of entitlement to a TDIU is not raised in this case. FINDINGS OF FACT 1. For the appeal period prior to August 24, 2011, the Veteran's service-connected bilateral hearing loss was manifested by level II hearing impairment in the right ear and level I hearing impairment in the left ear. 2. For the appeal period from August 24, 2011, the Veteran's service-connected bilateral hearing loss was manifested by no worse than level V hearing impairment in the right ear and level V hearing impairment in the left ear. CONCLUSIONS OF LAW 1. For the appeal period prior to August 24, 2011, the criteria for a compensable evaluation for bilateral hearing loss are not met. 38 U.S.C. §§ 1155, 5107 (West 2012); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.3, 4.7, 4.21, 4.85, 4.86, Diagnostic Code 6100 (2017). 2. For the appeal period from August 24, 2011, the criteria for an evaluation in excess of 20 percent for bilateral hearing loss are not met. 38 U.S.C. §§ 1155, 5107 (West 2012); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.3, 4.7, 4.21, 4.85, 4.86, Diagnostic Code 6100 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA has met all statutory and regulatory notice and duty to assist provisions, including pursuant to 38 C.F.R. § 3.103 (c)(2) (2017). See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Furthermore, there has been substantial compliance with the Board's prior remand directives. Stegall v. West, 11 Vet. App. 268 (1998). Disability evaluations are determined by comparing a veteran's symptoms with criteria set forth in VA's Schedule for Rating Disabilities, which are based on average impairment in earning capacity. 38 U.S.C. § 1155 (West 2012); 38 C.F.R. § 4.1 (2017). The assigned evaluation for hearing loss is determined by mechanically applying the rating criteria to certified test results. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Under the applicable criteria, ratings for hearing loss are determined in accordance with the findings obtained on audiometric examinations. Evaluations of hearing impairment range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests (Maryland CNC), together with the average hearing threshold level as measured by puretone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 Hertz. The rating criteria establish eleven auditory acuity levels designated from I to XI. As set forth in the regulations, Tables VI, VIa, and VII are used to calculate the rating to be assigned. See 38 C.F.R. § 4.85, Diagnostic Code 6100 (2017). Additionally, the regulations allow for evaluating exceptional patterns of hearing impairment. When the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more, Table VI or Table VIa is to be used, whichever results in the higher numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86 (a) (2017). When the puretone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, Table VI or Table VIa is to be used, whichever results in the higher numeral. Thereafter, that numeral will be elevated to the next higher numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86 (b). In light of the audiological examination results of record, however, these provisions do not apply in the Veteran's case. For the period prior to August 24, 2011, in conjunction with the Veteran's claim, a fee based audiological examination was afforded to the Veteran in May 2009. The May 2009 fee based examination report documented a puretone threshold average of 36 for the right ear and 38 for the left ear, at the relevant frequencies of 1000, 2000, 3000 and 4000 Hertz. The May 2009 fee based examination results revealed Maryland CNC speech recognition scores of 84 percent for the right ear and 92 for the left ear. Based on those results with the utilization of Table VI, the Veteran had level II hearing impairment in the right ear and level I hearing impairment in the left ear. Applying the results to Table VII, a noncompensable percent rating is warranted for bilateral hearing loss based on the May 2009 fee based audiological examination results. For the period from August 24, 2011, another fee based audiological examination was afforded to the Veteran on August 24, 2011. The August 24, 2011 fee based examination documented a puretone threshold average of 31for the right ear and 44 for the left ear, at the relevant frequencies of 1000, 2000, 3000 and 4000 Hertz. The May 2009 fee based examination results revealed Maryland CNC speech recognition scores of 60 percent for each ear. Based on those results with the utilization of Table VI, the Veteran had level V hearing impairment in the right ear and level V hearing impairment in the left ear. Applying the results to Table VII, a 20 percent rating is warranted for bilateral hearing loss based on the August 2011 fee based audiological examination results. Pursuant to the April 2014 Board remand, a VA hearing loss and tinnitus disability benefits questionnaire was again afforded to the Veteran in June 2017. The June 2017 VA hearing loss and tinnitus disability benefits questionnaire results documented a puretone threshold average of 39 for the right ear and 40 for the left ear, at the relevant frequencies of 1000, 2000, 3000 and 4000 Hertz. The June 2017 VA hearing loss and tinnitus disability benefits questionnaire results revealed Maryland CNC speech recognition scores of 96 percent for the right ear and 64 percent for the left ear. Based on those results with the utilization of Table VI, the Veteran had level I hearing impairment in the right ear and level V hearing impairment in the left ear. Applying the results to Table VII, a noncompensable rating is warranted for bilateral hearing loss based on the June 2017 hearing loss and tinnitus disability benefits questionnaire results. See 38 C.F.R. § 4.85, Diagnostic Code 6100. Additionally, the Veteran submitted medical records including dated in May 2010, February 2011 and July 2015, but these records did not contain Maryland CNC speech recognition scores and thus cannot be used for evaluation purposes. Additional medical records dated both prior to August 24, 2011 and thereafter, noted hearing loss related complaints but did not provide additional audiometric testing. Therefore, further discussion of these records is not warranted. Given the puretone threshold averages and speech recognition scores as set forth in May 2009, August 2011 and June 2017 audiological examinations, bilateral hearing loss is evident. However, in mechanically applying the test results to the schedular rating criteria, the Veteran's bilateral hearing loss has not been disabling enough to warrant higher staged ratings for the period prior to August 24, 2011 or thereafter. The rating criteria simply do not warrant a rating in excess of the staged initial ratings already assigned for the Veteran's level of hearing impairment. See 38 C.F.R. § 4.85, Diagnostic Code 6100. This is so for the period prior to August 24, 2011 and the period thereafter. Furthermore, the Board recognizes the Veteran's assertions, including in February 2011 testimony, that his hearing loss is worse than currently evaluated. These endorsements are admissible and have been taken into consideration. See Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). However, the Veteran has not been shown to have the requisite knowledge or training to be deemed competent to identify a specific level of disability of his bilateral hearing loss according to the rating criteria. Such competent evidence concerning the nature and extent of the Veteran's bilateral hearing loss has been provided by VA medical professionals who have objectively examined him and these medical findings directly address the criteria under which the Veteran's hearing loss disability is evaluated. The Board finds these clinical records to be competent, objective, and probative evidence of record, and is therefore accorded greater weight than the Veteran's subjective complaints of increased symptomatology for his bilateral hearing loss. The regulations provide that consideration of whether special monthly compensation (SMC) is warranted is required when evaluating any claim for impaired hearing. See 38 C.F.R. § 4.85 (g). Certain levels of SMC may be awarded for deafness. However, the SMC criteria require bilateral deafness or some other service-connected disability, such as blindness, which do not apply to the Veteran's case. See 38 U.S.C. § 1114 (West 2012); 38 C.F.R. § 3.350 (2017). Therefore, SMC is not warranted for the Veteran's bilateral hearing loss. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record with respect to his bilateral hearing loss disability. 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). For these reasons, the Board finds that the Veteran is not entitled to a compensable staged initial evaluation for bilateral hearing loss prior to August 24, 2011, nor in excess of 20 percent thereafter. In making these determinations the Board considered the application of "staged" ratings, but found no additional distinctive periods where the Veteran's service-connected bilateral hearing loss met or nearly approximated the criteria for higher ratings other than that already granted. In reaching this decision the Board considered the doctrine of reasonable doubt, however, to the extent the preponderance of the evidence is against ratings higher than or separate from that already assigned for the bilateral hearing loss, the doctrine is not for application. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to higher staged initial ratings for bilateral hearing loss, rated noncompensble prior to August 24, 2011 and 20 percent from August 24, 2011, is denied. ____________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs