Citation Nr: 1806170 Decision Date: 01/31/18 Archive Date: 02/07/18 DOCKET NO. 09-44 282 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to a compensable disability rating for bilateral hearing loss prior to September 28, 2012, and a rating in excess of 10 percent thereafter. REPRESENTATION Veteran represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD C. J. Cho, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Air Force from September 1966 to September 1970, July 1972 to August 1979, and in the United States Air Force Reserves from August 1979 to August 1989. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In April 1992, the Veteran was notified that his claim for entitlement to service connection for bilateral hearing loss was granted and assigned an evaluation of 0 percent effective September 1, 1989. On June 28, 2007, VA received the Veteran's increased rating claim for his service-connected bilateral hearing loss. In October 2007, the RO denied the increased rating claim and continued the 0 percent evaluation for the service-connected bilateral hearing loss. The Veteran filed a notice of disagreement with the rating decision in December 2007, and subsequently filed a substantive appeal. During the course of the appeal, the RO issued a March 2013 rating decision increasing the evaluation for service-connected bilateral hearing loss from 0 to 10 percent, effective September 28, 2012. As the Veteran is presumed to be seeking the maximum allowable benefit and the maximum benefit has not yet been awarded, the claim for entitlement to an increased rating for service-connected bilateral hearing loss is still on appeal. AB v. Brown, 6 Vet. App. 35 (1993). In June 2017, the Board remanded the claim, in part, for a VA examination, which was accomplished in July 2017. The case is now returned before the Board. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-7 (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). FINDINGS OF FACT 1. Prior to September 28, 2012, the Veteran's hearing impairment was no worse than Level I for the right ear and Level VIII for the left ear. 2. From September 28, 2012 forward, the Veteran's hearing impairment has been Level II in the right ear and Level VIII in the left ear, and Level I in the right ear and Level IX in the left ear. CONCLUSIONS OF LAW 1. The criteria for a compensable rating prior to September 28, 2012 for a bilateral hearing loss disability have not been met or approximated. 38 U.S.C. § 1155 (West 2012); 38 C.F.R. § 3.321, 4.1, 4.3, 4.7, 4.10, 4.85, Diagnostic Code 6100, 4.86 (2017). 2. The criteria for an increased rating in excess of 10 percent from September 28, 2012 forward for a bilateral hearing loss disability have not been met or approximated. 38 U.S.C. § 1155 (West 2012); 38 C.F.R. § 3.321, 4.1, 4.3, 4.7, 4.10, 4.85, Diagnostic Code 6100, 4.86 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 (VCAA) VA has met all statutory and regulatory notice and duty to assist provisions with respect to the Veteran's claims. 38 U.S.C. § 5100, 5102, 5103, 5103A, 5107 (West 2012); 38 C.F.R. § 3.102, 3.156(a), 3.159, 3.326(a) (2017). With respect to the duty to assist, specifically, the Board notes that the duty to assist includes providing a medical examination or obtaining a medical opinion when necessary to make a decision on a claim, as defined by law. See 38 C.F.R. § 3.159 (c)(4). In this case, the Veteran was provided with VA audiological examinations in September 2007, September 2012 and June 2017. The examinations are adequate because the examiners were state licensed audiologists, controlled speech discrimination tests (Maryland CNC) and puretone audiometry tests were provided, and the September 2012 and June 2017 opinions additionally noted the effect of the hearing loss disability on daily functioning. Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007); 38 C.F.R. § 4.85. While the Board notes the Veteran's contention in the March 2016 VA-9 that the September 2012 VA audiological examination was not conducted accurately due to the Veteran's anxiety, the Board has fully considered the Veteran's complaint and, upon review of the September 2012 VA examination report, ultimately finds that there is not a sufficient basis to invalidate the results of the clinical testing done in this September 2012 VA examination because there is no clear evidence rebutting the presumption of regularity for the September 2012 VA examination. See Miley v. Principi, 366 F.3d 1343, 1346-47 (2004) (A presumption of regularity is applied to all manner of VA processes and procedures and clear evidence is required to rebut the presumption of regularity); Rizzo v. Shinseki, 580 F.3d 1288, 1292 (2008) (applying the presumption of regularity to VA examination). The VA questionnaire completed by the September 2012 examiner clearly indicates that the examiner performed an in-person examination, reviewed the Veteran's claims file, and answered all inquiries relevant to determining the appropriate scheduler rating for the Veteran's service-connected disability. Thus, the examination findings themselves are adequate and sufficient upon which to decide the claim, and the examination is entitled to probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-05 (2008). Based on the foregoing, the Board finds the VA examination reports dated September 2007, September 2012 and June 2017 of record to be thorough, complete, and sufficient bases upon which to reach a decision on the Veteran's claim for an increased rating for a bilateral hearing loss. See Nieves-Rodriguez, 22 Vet. App. 295; Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). As such, the Board will now discuss the merits of the claim. II. Schedular Increased Rating Disability ratings are determined by the application of a schedule of ratings that is based on average impairment of earning capacity. 38 U.S.C. § 1155 (West 2012). Percentage ratings are determined by comparing the manifestations of a particular disability with the requirements contained in VA's Schedule for Rating Disabilities. The percentage ratings contained in the Rating Schedule represent, as far as can practically be determined, the average impairment in earning capacity resulting from a disease or injury and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In view of the number of atypical instances, it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. 38 C.F.R. § 4.21. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent with the facts shown in every case. Any reasonable doubt regarding the degree of disability is resolved in favor of the Veteran. 38 C.F.R. § 3.102, 4.3. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1 (2017); Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where, as here, entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, higher evaluations may be assigned for separate periods based on the facts found during the appeal period. Hart v. Mansfield, 21 Vet. App. 505 (2008). This practice is known as staged ratings. Id. A. Bilateral Hearing Loss Disability Assignment of a disability rating for hearing loss is derived by a mechanical application of the rating schedule to the specific numeric designations assigned after audiology testing is completed. Lendenmann v. Principi, 3 Vet. App. 345 (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). Also, 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). Here, the Veteran's claim for increased rating was received on June 28, 2007. Thus, the relevant focus for adjudicating his claim is the period beginning June 28, 2006, one year prior to the claim for increase. Hart, 21 Vet. App. at 505; 38 C.F.R. § 3.156(b). The Veteran is currently assigned a noncompensable rating prior to September 28, 2012 and a rating of 10 percent from September 2012 forward for his bilateral hearing loss. The Board will first address the period from June 28, 2006 to September 27, 2012, followed by the period from September 28, 2012 forward. i. Entitlement to an Evaluation in Excess of 0 Percent for Service-Connected Bilateral Hearing Loss for the Period from June 28, 2006 to September 27, 2012 is Denied. For the period from June 28, 2006 to September 27, 2012, the Board finds that based on the objective medical evidence of record, an increased rating in excess of 0 percent is not warranted for this period. The Veteran was provided with a VA audiological examination in September 2007. The results of the September 2007 audiological diagnostic test, as measured by puretone audiometry test, are: (1) for the Veteran's right ear: 10, 10, 35, 70 and 75 decibels at 500, 1000, 2000, 3000 and 4000 Hertz, respectively, and (2) for the Veteran's left ear, 25, 55, 95, 105 and 105 decibels at 500, 1000, 2000, 3000 and 4000 Hertz, respectively. Based on these results, the average puretone threshold was 48 decibels for the right ear and 90 decibels for the left ear. See 38 C.F.R. § 4.85 (d). Speech recognition was 96 percent for the right ear and 92 percent for the left ear, as measured by the Maryland CNC test. From applying these values to Table VI, the result is a Level I Roman numeral designation for the right ear and a Level IV for the left ear. However, based on these results the Veteran displayed an exceptional pattern of hearing loss in the left ear during this period. See 38 C.F.R. § 4.86. As such, the Veteran's Roman numeral designation for the left ear for this period can be alternatively derived from Table VIa. Id. Applying the September 2007 audiological diagnostic test results for the left ear to Table VIa, the result is a Level VIII Roman numeral designation for the left ear. As the Level VIII Roman numeral designation from Table VIa is higher than the Level IV designation derived from Table VI, the Level VIII designation from Table VIa will be used to determine the disability rating for the left ear for this period. Id. When the designations of Level I for the right ear and Level VIII for the left ear are applied to Table VII, the result is a 0 percent rating for the period prior to September 28, 2012. 38 C.F.R. § 4.85. VA and private treatment records, from the period from June 28, 2006 to September 27, 2012, reflect on-going audiological treatment, with complaints of decreased hearing acuity. However, no further adequate objective audiometric testing results are of record. While the Board notes that the Veteran was provided with a VA audiological diagnostic test on May 2, 2007, the May 2, 2007 audiological diagnostic test did not utilize the Maryland CNC controlled speech discrimination test and instead, used a CID W-22 list word test. 38 C.F.R. § 4.85 specifically requires examinations used for VA purposes to include a controlled speech discrimination test using the Maryland CNC word list. The evidence found in the May 2007 VA audiological diagnostic test therefore does not comply with 38 C.F.R. § 4.85. Therefore, the results of the May 2007 VA audiological diagnostic test cannot be used to determine the disability rating for the bilateral hearing loss for this period. Similarly, the results of a December 2007 private audiological examination cannot be used to determine the disability rating for the bilateral hearing loss for this period either. The Veteran underwent a private audiological examination in December 2007. However, it is unclear from the face of these records whether the December 2007 private audiological examination used the requisite Maryland CNC controlled speech discrimination test as the word test. Furthermore, a remand to obtain clarification from the private examiner as to which type of word test was utilized would be unreasonable because, here, even assuming that the controlled speech discrimination test listed was the Maryland CNC test, the results of this exam would not warrant a compensable disability evaluation. See Savage v. Shinseki, 24 Vet. App. 259 (2011). The Board has also considered the Veteran's lay statements, in which he generally contends that his hearing is worse than currently rated and that he has difficulty hearing with background noise and in groups. However, as indicated above, rating a hearing loss disability involves the mechanical application of rating criteria to the results of specified audiometric studies. Here, the objective medical evidence of record consists of the September 2007 audiological examination, which indicates that the Veteran's hearing loss does not rise to the level of a 10 percent rating for this period. See 38 C.F.R. § 4.85. For these reasons, the Veteran's claim for an increased rating in excess of 0 percent for bilateral hearing loss for the period prior to September 28, 2012 is denied. ii. Entitlement to an Evaluation in Excess of 10 Percent for Service-Connected Bilateral Hearing Loss for the Period from September 28, 2012 Forward is Denied. Turning to the period from September 28, 2012 forward, the Board finds that based on the objective medical evidence of record, an increased rating in excess of 10 percent is not warranted for this period. The Veteran was provided with VA audiological examinations in September 2012 and in July 2017. The results of the September 2012 VA examination, as measured by puretone audiometry test, are: (1) for the Veteran's right ear: 0, 10, 40, 80 and 75 decibels at 500, 1000, 2000, 3000 and 4000 Hertz, respectively, and (2) for the Veteran's left ear, 25, 55, 95, 100 and 100 decibels at 500, 1000, 2000, 3000 and 4000 Hertz, respectively. Based on these results, the average puretone threshold was 51.25 decibels for the right ear and 87.5 decibels for the left ear. See 38 C.F.R. § 4.85 (d). Speech recognition was 84 percent for the right ear and 68 percent for the left ear, as measured by the Maryland CNC test. As to functional impairment, the September 2012 examiner also noted difficulty with hearing especially in loud places or in groups. From applying these values to Table VI, the result is a Level II Roman numeral designation for the right ear and a Level VII for the left ear. However, based on these results the Veteran displayed an exceptional pattern of hearing loss in the left ear during this period. See 38 C.F.R. § 4.86. As such, the Veteran's Roman numeral designation for the left ear for this period can be alternatively derived from Table VIa. Id. Applying the September 2012 audiometric results for the left ear to Table VIa, the result is a Level VIII Roman numeral designation for the left ear. As the Level VIII Roman numeral designation from Table VIa is higher than the Level II designation derived from Table VI, the Level VIII designation from Table VIa will be used to determine the disability rating for the left ear for the period from September 28, 2012 forward. Id. From applying these values to Table VIa, the result is a Level II for the right ear and a Level VIII for the left ear. When the designations of Level II for the right ear and Level VIII for the left ear are applied to Table VII, the result is a 10 percent rating for the period from September 28, 2012 forward. 38 C.F.R. § 4.85. Next, the results of the July 2017 VA examination, as measured by puretone audiometry test, are: (1) for the Veteran's right ear: 10, 10, 45, 70 and 70 decibels at 500, 1000, 2000, 3000 and 4000 Hertz, respectively, and (2) for the Veteran's left ear, 25, 65, 90, 105 and 105 decibels at 500, 1000, 2000, 3000 and 4000 Hertz, respectively. Based on these results, the average puretone threshold was 49 decibels for the right ear and 91 decibels for the left ear. See 38 C.F.R. § 4.85 (d). Speech recognition was 96 percent for the right ear and 78 percent for the left ear, as measured by the Maryland CNC test. As to functional impairment, the July 2017 VA examiner also noted difficulty with hearing and understanding speech. From applying these values to Table VI, the result is a Level I Roman numeral designation for the right ear and a Level V for the left ear. However, based on these results the Veteran displayed an exceptional pattern of hearing loss in the left ear during this period. See 38 C.F.R. § 4.86. As such, the Veteran's Roman numeral designation for the left ear for this period can be alternatively derived from Table VIa. Id. Applying the July 2017 audiometric results for the left ear to Table VIa, the result is a Level IX Roman numeral designation for the left ear. As the Level IX Roman numeral designation from Table VIa is higher than the Level V designation derived from Table VI, the Level IX designation from Table VIa will be used to determine the disability rating for the left ear for the period from September 28, 2012 forward. Id. From applying these values to Table VIa, the result is a Level I for the right ear and a Level IX for the left ear. When the designations of Level I for the right ear and Level IX for the left ear are applied to Table VII, the result is a 0 percent rating for the period from September 28, 2012 forward. 38 C.F.R. § 4.85. VA treatment records from September 28, 2012 forward reflect on-going audiological treatment, with complaints of decreased hearing acuity. However, no further adequate objective audiometric testing results are of record. While the Board notes that the Veteran was provided with VA audiograms in June 2015 and April 2014, it is unclear from the face of these records whether these audiograms used the requisite Maryland CNC controlled speech discrimination test as the word tests. Furthermore, a remand to obtain clarification from the examiners as to which type of word test was utilized would be unreasonable because, here, even assuming that the controlled speech discrimination tests listed were the Maryland CNC test, the results of the exams would not warrant a compensable disability evaluation. See Savage, 24 Vet. App. at 259. Thus, these records do not provide the evidence needed to support increased ratings for this period. See Savage, 24 Vet. App. at 259. The Board has also considered the Veteran's lay statements for this period, in which he generally contends that his hearing is worse than currently rated and that he has difficulty hearing with background noise and in groups. However, as indicated above, rating a hearing loss disability involves the mechanical application of rating criteria to the results of specified audiometric studies. Here, the objective medical evidence of record consists of the September 2012 and July 2017 audiological examinations, which indicate that the Veteran's hearing loss does not rise to the level of a 20 percent rating. See 38 C.F.R. § 4.85. For these reasons, the Veteran's claim for a rating in excess of 10 percent from September 28, 2012 forward for bilateral hearing loss is denied. B. Conclusion Based on the objective medical evidence of record, specifically the private and VA audiological examinations dated September 2002, September 2007, and July 2017, the Board finds that the Veteran's service-connected bilateral hearing loss does not rise to a compensable disability rating for the period prior to September 28, 2012, and most nearly approximates a 10 percent rating for the period from September 28, 2012 forward. The preponderance of the evidence is against entitlement to higher ratings. The benefit of the doubt rule is not applicable here. Furthermore, all potentially applicable codes have been considered, and there is no basis to assign an evaluation in excess of the currently assigned ratings for the Veteran's bilateral hearing loss. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). Additionally, further staged ratings are not warranted, as any further increases in severity were not sufficient for a higher rating for the reasons discussed above. See Fenderson, 12 Vet. App. at 126-27. Therefore, entitlement to a compensable disability rating for bilateral hearing loss prior to September 28, 2012 and a rating in excess of 10 percent thereafter is denied. 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 54-56. ORDER Entitlement to a compensable rating prior to September 28, 2012 for a bilateral hearing loss disability is denied. Entitlement to an increased rating in excess of 10 percent from September 28, 2012 forward for a bilateral hearing loss disability is denied. ______________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs