Citation Nr: 18145855 Decision Date: 10/30/18 Archive Date: 10/30/18 DOCKET NO. 13-17 690 DATE: October 30, 2018 ORDER Entitlement to an evaluation of bilateral hearing loss greater than 50 percent since September 11, 2015 is denied. Entitlement to an evaluation of left ear hearing loss greater than 10 percent prior to September 11, 2015 is denied. FINDINGS OF FACT 1. From September 11, 2015, the Veteran demonstrated Level IX hearing acuity in the right ear and Level VIII hearing acuity in the left ear at worst. 2. Prior to September 11, 2015, the Veteran’s demonstrated Level VI hearing acuity in the left ear at worst. CONCLUSIONS OF LAW 1. From September 11, 2015, the criteria for a disability rating in excess of 50 percent for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.7, 4.31, 4.85, 4.86, Diagnostic Code (DC) 6100. 2. Prior to September 11, 2015, the criteria for a disability rating in excess of 10 percent for left ear hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.7, 4.31, 4.85, 4.86, DC 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from March 1968 to December 1971. This matter was previously before the Board of Veterans’ Appeals (Board) on an appeal from an April 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Togus, Maine, with jurisdiction subsequently transferred to the RO in Pittsburgh, Pennsylvania. Increased Rating The Veteran asserts that his service-connected hearing loss disability is more severe than the assigned 10 percent left ear rating prior to September 11, 2015 and the 50 percent bilateral rating thereafter. Based on the analysis below, the Board determines that the preponderance of the evidence is against the claims, and increased ratings are not warranted. Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran’s disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. Consideration of the appropriateness of a staged rating, meaning assigning different ratings at different times during the rating period to compensate the Veteran for times when the disability may have been more severe than at others, is required for increased rating claims, regardless of whether it is an initial rating at issue or instead an established rating. See Hart v. Mansfield, 21 Vet. App. 505 (2008). As such, the Board has considered whether different ratings for different periods of time, based on the facts found, are warranted throughout the appeal. Ratings for hearing loss range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of speech discrimination tests (Maryland CNC) combined with the average hearing threshold levels as measured by pure tone audiometry tests in the frequencies 1000, 2000, 3000, and 4000 Hertz, rounded to the next to the next higher number. To evaluate the degree of disability for service-connected hearing loss, the Schedule has established eleven auditory acuity levels, designated from Level I through Level XI, with Level I being least severe and Level XI being most severe. 38 C.F.R. § 4.85(h), Tables VI, VIA. The results of the pure tone audiometry tests and speech discrimination tests are charted on Table VI, or on Table VIA for exceptional cases described in 38 C.F.R. § 4.86, and Table VII. 38 C.F.R. § 4.85. Table VIA is used when the examiner certifies that 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 38 C.F.R. §§ 4.85(d), 4.86. An exceptional pattern of hearing loss is shown when the pure tone threshold at 1000, 2000, 3000, and 4000 Hertz is 55 decibels or more, or when the puretone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz. 38 C.F.R. § 4.86. 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. Each ear will be evaluated separately. 38 C.F.R. § 4.86(a). 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 will be evaluated separately. 38 C.F.R. § 4.86(b). 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. The examiner must elicit information from the Veteran concerning the functional effects of the disability. Martinak v. Nicholson 21 Vet. App. 447, 455 (2007). 1. Entitlement to an evaluation greater than 50 percent for service-connected bilateral hearing loss since September 11, 2015. Service connection was first granted for right-ear hearing loss in the RO’s January 2016 decision, with an effective date of September 11, 2015. The RO increased the evaluation for right-ear hearing loss (now claimed as bilateral hearing loss) to 50 percent disabling in its June 2017 decision. The Veteran last attended a VA examination for his hearing in December 2015. The examiner indicated that, with regard to functional impact, the Veteran had problems understanding speech in quiet and noisy circumstances, even with his VA-issued hearing aids. The VA audiological examination recorded pure tone thresholds, in decibels, as follows: HERTZ Dec. 2015 1000 2000 3000 4000 Average RIGHT 60 70 80 80 73 LEFT 55 85 85 80 76 Maryland CNC speech discrimination ability was reported as 36 percent in the right ear and 56 percent in the left ear. Both ears present an exceptional pattern of hearing loss, insofar as all pure tone thresholds are at 55 or higher; however, application of Table VIA is less favorable in light of the Veteran’s relatively low Maryland CNC scores. Applying these results to Table VI in 38 C.F.R. § 4.85 yields a finding of Level IX hearing loss in the right ear and Level VIII hearing loss in the left ear. The record does not show evidence of more severe puretone threshold averages or levels of speech discrimination. Where hearing loss is at Level IX in one ear and Level VIII in the other, a 50 percent rating is assigned under Table VII in 38 C.F.R. § 4.85. As a general proposition, the assignment of disability ratings for hearing loss is primarily based upon a mechanical application of the rating criteria, as explained and applied in this decision. In this case, the clinical evidence of record, when mechanically applied to the rating criteria, simply does not show that a higher rating than currently assigned is warranted. The Board has considered the Veteran’s reported functional effects of hearing loss; at his December 2015 VA examination, he reported having problems understanding speech in quiet as well as noise, even with the use of hearing aids. While the Board accepts this description as fully credible and indicative of significant impairment on account of hearing loss, there is no indication that is in any way inconsistent with, or not contemplated by, the assigned 50 percent evaluation. See Martinak v. Nicholson, supra. As the preponderance of the evidence is against the assignment of a higher rating, the benefit-of-the-doubt doctrine is not applicable, and the claim must be denied. 38 U.S.C. § 5107(b). 1. Entitlement to an evaluation greater than 10 percent for left ear hearing loss prior to September 11, 2015. Service connection was first granted for left ear hearing loss in the RO’s January 2000 decision, with an evaluation of 0 percent disabling and an effective date of October 28, 1998. That decision became final in February 2001, one year after the Veteran filed a February 2000 statement in support of his left ear claim but took no further action in pursuing the claim. The Veteran renewed his claim in December 2009, when the RO received his Statement in Support of Claim, which was treated as a new claim for an increased rating. In the RO’s post-remand June 2017 decision, the RO increased the evaluation for left ear hearing loss to 10 percent disabling, effective October 23, 1998 to September 11, 2015. During the Veteran’s VA examination in January 2000, the Veteran’s scores were as follows: HERTZ Jan. 2000 500 1000 2000 3000 4000 Average RIGHT 20 30 55 75 80 60 LEFT 20 30 65 75 80 63 Maryland CNC speech discrimination ability was reported as 86 percent for the right ear and 72 percent for the left. 38 C.F.R. § 4.85(f) dictates that when only one ear is service-connected, the non-service connected right ear will be assigned a Level I evaluation for the purposes of Table VII. The left ear warrants a Level V evaluation, and the combination of the two does not support an evaluation in excess of 10 percent. During the March 2010 VA examination for hearing loss, the Veteran’s scores were as follows: HERTZ Mar. 2010 1000 2000 3000 4000 Average RIGHT 55 60 75 75 66 LEFT 50 75 75 75 69 Maryland CNC speech discrimination ability was reported as 68 percent for the right ear and 68 percent for the left. These scores are consistent with Level VI hearing acuity in the left ear, while the right ear must be assigned a Level I evaluation. Again, these scores do not support an evaluation in excess of 10 percent, and the claim must be denied. In reaching this decision, the Board notes that 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). Specifically, the record does not raise a claim for a total disability rating based upon individual unemployability. See Rice v. Shinseki, 22 Vet. App. 447, 454 (2009). A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Evan Thomas Hicks