Citation Nr: 18142706 Decision Date: 10/17/18 Archive Date: 10/16/18 DOCKET NO. 16-10 056 DATE: October 17, 2018 ORDER Entitlement to an initial compensable rating for bilateral hearing loss is denied. FINDING OF FACT During the period on appeal, the Veteran’s bilateral hearing loss manifested with 28 to 31 average pure tone decibel hearing loss and 100 percent speech discrimination for the right ear; and 18 to 25 average pure tone decibel hearing loss and 100 percent speech discrimination for the left ear. CONCLUSION OF LAW The criteria for entitlement to an initial compensable rating for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.321, 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the United States Army from June 1990 through July 1995. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). When evidence of unemployability is submitted during an appeal from an assigned disability rating, a claim for entitlement to a total disability rating based on individual unemployability (TDIU) will be considered to have been raised by the record as “part and parcel” of the underlying claim. Rice v. Shinseki, 22 Vet. App. 447, 453–54 (2009). However, the Veteran has not submitted any evidence suggesting unemployability. Therefore, the Board need not address TDIU in this case. 1. Entitlement to an initial compensable rating for bilateral hearing loss. Disability ratings are determined by applying criteria set forth in VA’s Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations should be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. In disability rating cases, VA assesses the level of disability from the initial grant of service connection or a year prior to the date of application for an increased rating and determines whether the level of disability warrants the assignment of different disability ratings at different times over the course of the claim, a practice known as “staged ratings.” See Fenderson v. West, 12 Vet. App. 119, 126 (1999); see also Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007) (holding that staged ratings may be warranted in increased rating claims). Additionally, the evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided. Separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). In deciding claims, it is the Board’s responsibility to evaluate the entire record on appeal. See 38 U.S.C. § 7104(a). Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss each piece of evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Rather, the Board’s analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. See Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). In assigning a higher disability rating, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Rating Schedule provides rating tables for the evaluation of hearing impairment. Table VI assigns a Roman numeral designation (I through XI) for hearing impairment based on the pure tone threshold average and controlled speech discrimination (Maryland CNC) testing. Table VIA assigns a Roman numeral designation for hearing impairment based only on the pure tone threshold average, and is used when speech discrimination testing is not appropriate or when indicated under the provisions of 38 C.F.R. § 4.86, which relate to exceptional patterns of hearing impairment. The “pure tone threshold average” is the sum of the pure tone thresholds at 1000, 2000, 3000, and 4000 Hertz, divided by four. 38 C.F.R. § 4.85(d). Table VII is used to determine the rating assigned by combining the Roman numeral designations for hearing impairment of each ear. 38 C.F.R. § 4.85(e). Exceptional patterns of hearing impairment are provided for in 38 C.F.R. § 4.86. When the pure tone 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. Each ear is evaluated separately. 38 C.F.R. § 4.86(a). Ratings for hearing impairment are derived by the mechanical application of the Rating Schedule to the numeric designations assigned after audiometric evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345 (1992). However, in addition to providing objective test results, a VA audiological examination report must address the functional effects caused by a hearing disability because an extraschedular rating under 38 C.F.R. § 3.321(b) “does not rely exclusively on objective test results to determine whether a referral for an extraschedular rating is warranted.” Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). VA’s policy requiring VA audiologists to describe the effect of a hearing disability on occupational functioning and daily activities facilitates extraschedular determinations. Id. The Veteran underwent two audiological evaluations during the appellate period. On the authorized audiological evaluation in November 2013, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 45 40 20 20 30 LEFT 20 20 15 15 20 Speech audiometry revealed speech recognition ability of 100 percent in both ears using the Maryland CNC Speech Discrimination Test. The average pure tone thresholds of 1000, 2000, 3000, and 4000 Hz, rounded to the nearest whole number, were 28 for the right ear and 18 for the left ear. On the authorized audiological evaluation in March 2016, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 50 40 35 20 30 LEFT 30 25 25 20 30 While the audiogram was represented in graphical form, the Board, as the finder of fact, may interpret a graphical audiogram. See Kelly v. Brown, 7 Vet. App. 471 (1995). Speech audiometry revealed speech recognition ability of 100 percent in both ears using the Maryland CNC Speech Discrimination Test. The average pure tone thresholds of 1000, 2000, 3000, and 4000 Hz, rounded to the nearest whole number, were 31 for the right ear and 25 for the left ear. Both examinations yield a numerical designation of I for both ears (between 0 and 41 average pure tone decibel hearing loss, with between 92 and 100 percent speech discrimination). Entering the category designations for each ear into Table VII results in a noncompensable disability evaluation. As there is no exceptional pattern of hearing loss, Table VIA is not applicable. VA and private treatment records reflect complaints of, and some treatment for, bilateral hearing loss. However, the records do not contain any additional objective audiometric testing. The preponderance of the evidence is against finding a compensable rating for the Veteran’s bilateral hearing loss during the period on appeal. The evidence demonstrates that both audiological examinations were adequate for rating purposes, and that the severity of the Veteran’s hearing loss was adequately assessed at each of the audiological examinations conducted during the appellate period. The Board has considered the Veteran’s lay statements and the lay statements provided from his wife, mother, and friend. The Veteran is competent to describe the effects of his hearing loss on his daily functioning, such as having difficulty understanding other people with background noise present. However, disability ratings are derived by a mechanical application of the rating schedule. Lendenmann, 3 Vet. App. at 349. Thus, the Board has no discretion in this matter and must predicate its determination based on the results of the audiological examinations of record. Mechanical application of the Rating Schedule to the audiometric findings establishes a noncompensable rating during the appellate period. The Veteran’s claim for an initial compensable rating for his bilateral hearing loss is denied. 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, 369–70 (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). Additionally, staged ratings are not warranted, as the Veteran has had a relatively stable level of symptomatology throughout the appeal. Any increases in severity were not sufficient for a higher rating for the reasons discussed above. See Fenderson, 12 Vet. App. at 126–27. Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. McLendon, Associate Counsel