Citation Nr: 18145507 Decision Date: 10/29/18 Archive Date: 10/29/18 DOCKET NO. 16-38 241 DATE: October 29, 2018 ORDER Entitlement to an initial compensable rating for bilateral sensorineural hearing loss is denied. FINDING OF FACT The Veteran’s bilateral sensorineural hearing loss disability was manifested by not worse than Level II hearing in the right ear and Level II hearing in the left ear. CONCLUSION OF LAW The criteria for a compensable rating for bilateral sensorineural hearing loss disability have not been satisfied. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Marine Corps as a mortar man from July 1975 to July 1979. Increased Rating Disability evaluations are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1 (2016); Peyton v. Derwinski, 1 Vet. App. 282 (1991). Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. 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. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Here, staged ratings are not warranted. The Veteran’s service connected bilateral sensorineural hearing loss is rated as noncompensable pursuant to 38 C.F.R. § 4.85, Diagnostic Code 6100. Under the rating criteria, the method for rating bilateral hearing loss is based on examination results including a controlled speech discrimination test (Maryland CNC), and a pure tone audiometric test of pure tone decibel thresholds at 1000, 2000, 3000, and 4000 Hz with an average pure tone threshold obtained by dividing these thresholds by four. 38 C.F.R. § 4.85. Once these test results have been obtained, employing Table VI, a Roman numeral designation of auditory acuity level for hearing impairment is ascertained based on a combination of the percent of speech discrimination and pure tone threshold average. Once a Roman numeral designation of auditory acuity level for each ear has been determined, Table VII is used to determine the percentage evaluation for bilateral hearing loss by combining the Roman numeral designations of auditory acuity level for hearing impairment of each ear. 38 C.F.R. § 4.85. There is an alternative method of rating hearing loss in defined instances of exceptional hearing loss. Exceptional hearing exists when the pure tone threshold at the frequencies of 1000, 2000, 3000, and 4000 Hertz is 55 decibels or more; or where the pure tone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz. See 38 C.F.R. § 4.86. Entitlement to an initial compensable rating for bilateral hearing loss The Veteran contends that his bilateral hearing loss has worsened and an increased compensable rating is warranted. The Veteran contends increased difficulty hearing especially in his left ear. In addition, the Veteran reports an increased difficulty hearing in social situations. The Veteran is competent to testify to such lay observable symptomatology, and there is no evidence that these statements are not credible. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). As such, these statements are entitled to probative value as to the severity of his bilateral hearing loss during the period on appeal. The question for the Board is whether the Veteran’s bilateral hearing loss warrants a compensable rating based on the applicable Diagnostic Code. The Board concludes that the preponderance of the evidence is against finding that the Veteran’s bilateral hearing loss more nearly approximated the level of severity contemplated by an increased compensable rating during the appeal. VA and private treatment records note ongoing reports of difficulty hearing and difficulty hearing and communicating in social situations, especially around large groups of people. In addition, VA treatment records note hearing aids were recommended. Associated audiograms are consistent with the VA audiological evaluations discussed below and will not be individually summarized. The Veteran was afforded VA audiological examinations in August 2015 and July 2017. On the authorized audiological evaluation in August 2015, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 35 35 35 35 45 LEFT 35 40 35 75 95 Speech audiometry revealed speech recognition ability of 100 percent in the right ear and of 94 percent in the left ear. Using Table VI, the Veteran’s examination results revealed Level I hearing in the right ear and Level II hearing in the left ear. Based on Table VII, combining the levels for the right and left ear hearing results in a noncompensable rating for the Veteran’s bilateral hearing loss. The examiner noted that the Veteran’s hearing loss impacts occupational activities in his usual activities in that when he is around large groups of people he has difficulty hearing and must concentrate a great deal. The Board finds this examination is entitled to probative weight. The Veteran submitted the results of a private audiogram obtained in February 2016. In a concurrent letter, the private audiologist noted that the speech recognition test was a Maryland CNC test. Pure tone thresholds taken from a graph, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 25 30 25 35 LEFT 25 25 35 75 90 Speech audiometry revealed speech recognition ability of 88 percent in the right ear and of 84 percent in the left ear. Using Table VI, the Veteran’s examination results revealed Level II hearing in the right ear and Level II hearing in the left ear. Based on Table VII, combining the levels for the right and left ear hearing results in a noncompensable rating for the Veteran’s bilateral hearing loss. In addition, the Veteran was afforded a VA examination in July 2017. On the authorized audiological evaluation in July 2017, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 20 25 25 35 LEFT 20 20 25 70 90 Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 98 percent in the left ear. Using Table VI, the Veteran’s examination results revealed Level I hearing in the right ear and Level I hearing in the left ear. Based on Table VII, combining the levels for the right and left ear hearing results in a noncompensable rating for the Veteran’s bilateral hearing loss. The examiner noted the Veteran’s hearing loss impacts his ordinary conditions of daily life, in that the Veteran reported difficulty hearing his wife, and he often talks louder than others in social conversations which offends people at times. The Board finds this examination is entitled to probative weight. While the Board has considered the Veteran’s lay statements of record regarding his ongoing difficulty hearing, communicating and a worsening of his hearing loss the Board gives more probative weight to the competent medical evidence. The Veteran’s lay statements are competent to relay his current symptoms and these statements are credible. However, the Board is bound to apply the VA rating schedule, under which the rating criteria are defined and limited by audiometric findings. The VA examinations at worse using Table VI, noted Level I hearing in the right ear and Level II hearing in the left ear, combining these levels according to Table VII, results in a noncompensable rating. VA and private treatment records associated with the claims file note consistent audiological testing results corresponding with the VA audiological evaluations. Further the VA examinations, VA and private treatment records do not demonstrate an exceptional pattern of hearing as the Veteran did not have pure tone thresholds of 55 decibels or more at each of the frequencies of 1,000, 2,000, 3,000 and 4,000 Hertz, or a pure tone threshold of 30 decibels or less at 1,000 Hertz and 70 decibels or more at 2,000 Hertz. The Board finds no basis to alternatively rate this claim under Table VIA. As such a compensable rating is not warranted for this period. 38 C.F.R. § 4.85, 4.86, Diagnostic Code 6100. Relevant to VA audiological examinations, in addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in his or her final report. Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). The VA examiners in August 2015 and July 2017 noted functional effects on the Veteran’s ordinary conditions of daily life in that the Veteran’s hearing loss results in difficulty hearing in social situations, difficulty hearing his wife and often speaking louder in conversations at times offending others. The Board has carefully considered the Veteran’s and his representative’s contentions that his hearing loss impacts his activities of daily living. Further, the Board notes the Veteran’s contentions that the current rating criteria do not reflect the impact his hearing loss has on his activities of daily living. However, it must be emphasized that the assignment of a schedular disability rating for hearing impairment is derived by an application of the rating schedule to the numeric designation assigned after valid audiometry results are obtained. Hence, the Board considers the subjective reports of hearing difficulty but places great weight on the results of the audiology studies of record. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). 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 (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). All potentially applicable Diagnostic Codes have been considered. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). The preponderance of the evidence is against finding a compensable rating for the Veteran’s service connected bilateral hearing loss is warranted. As such, the benefit-of-the-doubt doctrine is inapplicable. 38 C.F.R. § 4.3. For these reasons, the claim is denied. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Kardian