Citation Nr: 18140374 Decision Date: 10/03/18 Archive Date: 10/02/18 DOCKET NO. 16-19 765A DATE: October 3, 2018 ORDER Entitlement to an increased, compensable rating for bilateral hearing loss, based upon substitution of the appellant as claimant, is denied. FINDING OF FACT The Veteran's hearing loss was shown to have been manifested by no worse than Level IV hearing for the right ear and Level II hearing for the left ear. CONCLUSION OF LAW The criteria for the assignment of a compensable rating for the service-connected bilateral hearing loss, based upon substitution of the appellant as claimant, are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.159, 4.1, 4.7, 4.85, Diagnostic Code 6100, 4.86 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1969 to March 1972. He died in May 2018. The appellant is his surviving spouse and substitute claimant in this case. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. Entitlement to an Increased Rating for Bilateral Hearing Loss The appellant contends that the Veteran was entitled to a compensable rating for his service-connected bilateral hearing loss disability. Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will 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, 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 concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Here, as explained below, a uniform evaluation of the disability on appeal is warranted. The Veteran's bilateral hearing loss disability is rated as noncompensably disabling under the criteria of 38 C.F.R. § 4.85, Diagnostic Code 6100. Disability ratings for service-connected hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations rendered from audiometric evaluations. 38 C.F.R. § 4.85; Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Evaluations of bilateral hearing loss range from noncompensable to 100 percent based on an organic impairment of hearing acuity, as measured by controlled speech discrimination tests in conjunction with the average hearing threshold, as measured by puretone audiometric tests in the frequencies of 1000, 2000, 3000 and 4000 cycles per second. The rating schedule establishes 11 auditory acuity Levels designated from Level I for essentially normal hearing acuity through Level XI for profound deafness. The vertical line in Table VI (printed in 38 C.F.R. § 4.85) represents nine categories of the percentage of discrimination based on controlled speech discrimination test. The horizontal columns in Table VI represent nine categories of decibel loss based on the puretone audiometry test. The numerical designation of impaired hearing (Levels I through XI) is determined for each ear by intersecting the vertical row appropriate for the percentage of discrimination and the horizontal column appropriate to the puretone decibel loss. The percentage evaluation is found from Table VII in 38 C.F.R. § 4.85 by intersecting the vertical column appropriate for the numeric designation for the level for the ear having the better hearing acuity and the horizontal row appropriate for the numeric designation for the level for the ear having the poorer hearing acuity. For example, if the better ear had a numeric designation of Level "IV" and the poorer ear had a numeric designation of Level "VII," the percentage evaluation is 20 percent. See 38 C.F.R. § 4.85. Regulations also provide in cases of exceptional hearing loss, i.e., when the puretone threshold at each of the four specified frequencies (1000, 2000, 3000 and 4000 hertz) is 55 decibels or more, 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. 38 C.F.R. § 4.86(a). The provisions of 38 C.F.R. § 4.86(b) further provide 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; and then that numeral will be elevated to the next higher Roman numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86. The Veteran was afforded two VA QTC examinations in April 2014. On the first examination, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 20 70 75 70 LEFT 20 25 65 70 65 Speech audiometry revealed speech recognition ability of 94 percent in the right ear and of 94 percent in the left ear. The examiner diagnosed bilateral sensorineural hearing loss. With respect to functional impact, the Veteran reported that he had to have the television on louder and he still had a difficult time understanding the words on television. He missed parts of conversation when talking to someone who was soft-spoken. Using Table VI, the Veteran’s April 2014 examination results revealed level II hearing in the right ear and level I hearing in the left ear. Combining these levels according to Table VII results in a 0 percent rating. The Board notes that, given that the puretone threshold for the right ear was less than 30 at 1000 Hertz and 70 at 2000 Hertz, an exceptional pattern of hearing impairment was demonstrated. Table VIa is therefore also for application for the right ear, resulting level IV hearing in the right ear. However, combining these levels according to Table VII still results in a 0 percent rating. A second April 2014 VA QTC examination reflects that pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 20 65 65 60 LEFT 25 25 65 65 65 Speech audiometry revealed speech recognition ability of 84 percent in the right ear and of 84 percent in the left ear. With respect to functional impact, the Veteran reported that he had difficulty hearing in the presence of background noise and watching television at normal listening levels. He also had trouble communicating with his wife. Using Table VI, the Veteran’s April 2014 examination results revealed level II hearing in the right ear and level II hearing in the left ear. Combining these levels according to Table VII results in a 0 percent rating. A September 2014 VA audiology consult includes audiometric findings with pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 20 75 70 65 LEFT 10 15 65 65 55 Speech audiometry revealed speech recognition ability of 84 percent in the right ear and of 96 percent in the left ear. Using Table VI, the Veteran’s September 2014 examination results revealed level II hearing in the right ear and level I hearing in the left ear. Combining these levels according to Table VII results in a 0 percent rating. Again, given that the puretone threshold for the right ear was less than 30 at 1000 Hertz and over 70 at 2000 Hertz, an exceptional pattern of hearing impairment was demonstrated. Table VIa is also therefore for application for the right ear, resulting level IV hearing in the right ear. However, combining these levels according to Table VII still results in a 0 percent rating. An October 2014 VA treatment report reflects that the Veteran received hearing aids. On VA audiology examination in October 2016, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 25 60 65 65 LEFT 15 25 60 60 55 Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 96 percent in the left ear. The Veteran reported difficulty in group conversations, difficulty understanding soft-spoken people, difficulty hearing alarms, and difficulty hearing his television. Using Table VI, the Veteran’s October 2016 examination results revealed level I hearing in the right ear and level I hearing in the left ear. Combining these levels according to Table VII results in a 0 percent rating. In various written statements, the Veteran described difficulties with hearing, including hearing the television and in conversation. He had to turn the volume up loudly on the television and ask others to repeat themselves. He described difficulty hearing sounds at his job driving a school bus. He noted that his hearing aids did not negate his severe hearing loss. However, the audiometric findings do not support the assignment of a compensable rating. The Board has considered the Veteran's statements regarding the severity of his hearing loss and how it impacted his ability to understand in conversation particularly at work, and in no way discounts the difficulties that the Veteran experienced as a result of bilateral hearing loss; however, it must be reiterated that the assignment of disability ratings for hearing impairment is derived by a mechanical application of the rating schedule to the numeric designation assigned after audiometry results are obtained. Hence, the Board has no discretion in this matter and must predicate its determination on the basis of the results of the audiology study of record. Lendenmann, supra. In other words, the Board is bound by law to apply VA's rating schedule based on the Veteran's audiometry results. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. To that end, the Veteran's assertions as to the severity of his bilateral hearing loss, though competent and credible, are less probative than the objective audiology studies of record, prepared by skilled professionals, in determining that his bilateral hearing loss does not meet the criteria for a compensable rating. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (2007). Further, the examination reports documented above also noted and considered the Veteran's report of the impact his hearing loss had on his ordinary conditions of life including his ability to work. See Martinak v. Nicholson, 21 Vet. App. 447 (2007). To the extent that the Veteran reported that his tinnitus also interferes with his hearing, he was already in receipt of service connection and a maximum, 10 percent rating for this disability. (Continued on the next page)   Neither the Veteran during his lifetime, nor the appellant, has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (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). Accordingly, an initial compensable rating for bilateral hearing loss disability is not warranted. Additionally, given the relative consistency in audiometric test results, the Board concludes that there is no basis for staged rating of the Veteran's service-connected hearing loss disability. In reaching the decision with regard to the appropriate disability rating, the Board has considered the benefit-of-the-doubt doctrine. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). Because the evidence preponderates against the claim for a compensable disability rating for the Veteran's service-connected bilateral hearing loss, however, the benefit-of-the- doubt doctrine is inapplicable. See 38 U.S.C. § 5107(b). A. S. CARACCIOLO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD G. E. Wilkerson, Counsel