Citation Nr: 18146002 Decision Date: 10/30/18 Archive Date: 10/30/18 DOCKET NO. 16-40 083 DATE: October 30, 2018 ORDER An initial compensable disability rating for bilateral hearing loss is denied. An initial disability rating in excess of 10 percent for tinnitus is denied. FINDINGS OF FACT 1. For the entire period on appeal, the Veteran’s bilateral hearing loss disability has been manifested by hearing acuity consistent with the criteria of a noncompensable rating, but no worse. 2. The Veteran’s service-connected tinnitus is assigned a 10 percent disability rating, which is the maximum rating authorized for tinnitus under Diagnostic Code (DC) 6260, for either a unilateral or bilateral condition. CONCLUSIONS OF LAW 1. For the entire period on appeal, the criteria for an initial compensable rating for bilateral hearing loss disability are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.85, 4.86, DC 6100 (2017). 2. For the entirety of the appeal period, the criteria for an initial disability rating in excess of 10 percent for tinnitus are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.87, DC 6260 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1967 to September 1969. The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). 1. Entitlement to an initial compensable disability rating for bilateral hearing loss. Hearing Loss Rating Criteria Disability evaluations are determined by the application of a schedule of ratings which is based on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Separate diagnostic codes identify the various disabilities. 38 C.F.R. § 4.1 requires that each disability be viewed in relation to its history and that there be emphasis upon the limitation of activity imposed by the disabling condition. 38 C.F.R. § 4.2 requires that medical reports be interpreted in light of the whole recorded history, and that each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.7 provides that, where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. This issue stems from the January 2014 rating decision granting service connection and the Veteran has perfected an appeal of the initial rating assigned. 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, 1 Vet. App. at 594. Separate ratings may be assigned for separate periods of time based on the facts found. This practice is known as “staged ratings.” Fenderson v. West, 12 Vet. App. 119, 126-127 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2007). Reasonable doubt as to the degree of disability will be resolved in the veteran’s favor. 38 C.F.R. § 4.3. Here, the Veteran’s hearing loss is evaluated under 38 C.F.R. § 4.85, Diagnostic Code 6100. This diagnostic code sets out the criteria for evaluating hearing impairment using puretone threshold averages and speech discrimination scores. Numeric designations are assigned based upon a mechanical use of tables found in 38 C.F.R. § 4.85, and there is no room for subjective interpretation. See Acevedo-Escobar v. West, 12 Vet. App. 9, 10 (1998); Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). 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 pure tone audiometry test without the use of hearing aids. 38 C.F.R. § 4.85(a). Speech recognition ability must be measured using the Maryland CNC word list. Id. Hearing loss disability evaluations range from noncompensable to 100 percent based on organic impairment of hearing acuity, as measured by controlled speech discrimination tests in conjunction with the average hearing threshold, and as measured by puretone audiometric tests in the frequencies 1000, 2000, 3000, and 4000 cycles per second, or hertz (Hz). The rating criteria for hearing loss establish eleven auditory acuity levels designated from Level I for essentially normal hearing acuity, through Level XI for profound deafness. The rows in Table VI (38 C.F.R. § 4.85) represent nine categories of the percentage of discrimination based on the controlled speech discrimination test. The columns in Table VI represent nine categories of decibel loss based on the puretone audiometry test. The numeric designation of impaired hearing (Levels I through XI) is determined for each ear by intersecting the row appropriate for the percentage of discrimination and the column appropriate to the puretone decibel loss. The percentage disability evaluation is found from Table VII (38 C.F.R. § 4.85) by intersecting the row appropriate for the numeric designation for the ear having the better hearing acuity and the column appropriate to the numeric designation level for the ear having the poorer hearing acuity. In addition, under 38 C.F.R. § 4.86(a), when the puretone threshold at each of the four specified frequencies, 1000, 2000, 3000, and 4000 Hz, 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. Under 38 C.F.R. § 4.86(b), when the pure tone threshold is 30 decibels or less at 1000 Hz, and 70 decibels or more at 2000 Hz, 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. Analysis After a review of all the evidence in the Veteran’s case, the Board finds that the evidence does not support an initial compensable rating. The record contains a March 2013 private audiological examination report submitted by the Veteran. The report contains only the graphic representation of the audiogram findings, with no numeric interpretation provided. Nevertheless, as the audiometric results were conveyed in what appears to be a straightforward graph, the Board finds that it, as the finder of fact, can interpret the chart to determine the numeric values of the puretone levels of adjudication purposes. See Kelly v. Brown, 7 Vet. App. 471 (1995). The notations appear to reflect puretone thresholds of approximately 30, 50, 75, and 80 decibels in the right ear, and approximately 20, 40, 60, and 65 decibels in the left ear at the test frequencies 1000, 2000, 3000, and 4000 Hz, respectively, which would result in an average puretone threshold of 58.75 in the right ear and 46.25 in the left ear. However, testing of hearing loss disability for VA rating purposes must also meet specific requirements, to include speech discrimination testing in a controlled setting using a Maryland CNC word list and here, there is no indication in the record that the private audiological evaluation was conducted in the manner prescribed. Thus, although competent evidence, this private audiological examination does not indicate the use of Maryland CNC testing and is therefore not sufficient for rating purposes because it does not comply with 38 C.F.R. § 4.85. Therefore, the March 2013 private audiological findings are invalid for VA rating purposes. 38 C.F.R. § 4.85(a). Even assuming arguendo, that the speech discrimination percentages were derived using Maryland CNC testing, word recognition scores were 100 percent, bilaterally. Application of Table VI to the hearing loss findings as recorded in March 2013 results in numerical designations of Level II in the right ear and Level I in the left ear, which equates to a noncompensable disability rating. 38 C.F.R. § 4.85. As no exceptional patterns of hearing impairment under 38 C.F.R. § 4.86 were shown, application of Table VIA is not warranted. A July 2013 VA audiological evaluation report reflects puretone thresholds of 20, 40, 60, and 60 decibels in the right ear, and 10, 30, 55, and 55 decibels in the left ear at the test frequencies 1000, 2000, 3000, and 4000 Hz, respectively, with an average puretone threshold of 45 in the right ear and 37.5 in the left ear. The Maryland CNC speech recognition scores were 90 percent in both ears. Using Table VI, the hearing impairment is Level II in the right ear and Level II in the left ear. This results in a zero percent, or noncompensable, disability rating under Table VII. See 38 C.F.R. § 4.85. In his August 2016 substantive appeal to the Board (VA Form 9), the Veteran asserted that his hearing loss has worsened. A September 2016 private audiological evaluation report is also of record. Again, because the audiometric results were conveyed in a straightforward graph, the Board finds that it, as the finder of fact, can interpret the chart to determine the numeric values of the puretone levels of adjudication purposes. See Kelly, supra. The notations appear to reflect puretone thresholds of approximately 35, 65, 85, and 80 decibels in the right ear, and approximately 25, 50, 75, and 80 decibels in the left ear at the test frequencies 1000, 2000, 3000, and 4000 Hz, respectively, which would result in an average puretone threshold of 66.25 in the right ear and 57.5 in the left ear. However, there is no indication that the speech discrimination testing was conducted using a Maryland CNC word list. Thus, this audiological examination does not contain a Maryland CNC test and is therefore not sufficient for rating purposes because it does not comply with 38 C.F.R. § 4.85. Therefore, the September 2016 private audiological examination is also invalid for VA rating purposes. 38 C.F.R. § 4.85(a). Even assuming arguendo, that the speech discrimination percentages were derived using Maryland CNC testing, word recognition scores were 84 percent in the right ear, and 88 percent in the left ear. Applying Table VI to the hearing loss, as recorded in September 2016, results in numerical designations of Level III in the right ear and Level II in the left ear, which equates to a noncompensable disability rating. 38 C.F.R. § 4.85. As no exceptional patterns of hearing impairment under 38 C.F.R. § 4.86 were shown, application of Table VIA is not warranted. The Veteran was afforded an additional VA audiological evaluation in June 2017. The evaluation report reflects puretone thresholds of 35, 50, 65, and 70 decibels in the right ear, and 10, 35, 55, and 60 decibels in the left ear at the test frequencies 1000, 2000, 3000, and 4000 Hz, respectively, with an average puretone threshold of 55 in the right ear and 40 in the left ear. The Maryland CNC speech recognition scores were 94 percent in the right ear; 96 percent in the left ear. Using Table VI, the hearing impairment is Level I in the right ear and Level I in the left ear. This results in a zero percent, or noncompensable, evaluation under Table VII. See 38 C.F.R. § 4.85. The Board has considered the Veteran’s statements that his bilateral hearing loss disability warrants a higher rating. He is competent to report difficulty with hearing and understanding conversations; however, he is not competent to report that his hearing acuity is of sufficient severity to warrant increased compensation under VA’s tables for rating hearing loss disabilities because such an opinion requires medical expertise (training in evaluating hearing impairment), which he has not been shown to have. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). In determining the actual degree of his hearing disability, an objective examination that specifically measures relevant criteria of decibel loss at specific ranges and loss of speech recognition ability is more probative of the degree of the hearing loss impairment than general assertions of difficulty hearing. Accordingly, the lay and medical evidence does not support an initial compensable rating. While the Board acknowledges the argument posited by the Veteran’s representative that the June 2017 VA examiner did not reconcile or discuss the September 2016 private audiology report, the Board finds that the examiner had no duty to do so. Rather, the examiner was tasked with conducting an audiological examination to assess the current severity of the Veteran’s hearing loss disability, which she did. The examiner also indicated that the Veteran’s electronic claims file was reviewed, which included both private audiological reports. The fact that the examiner did not elaborate on the private findings does not in any way render the June 2017 examination inadequate. Moreover, as discussed above, assuming arguendo that the private evaluation results are adequate for rating purposes, the Veteran still would not meet the rating criteria for a compensable rating based on those findings. Lastly, the Veteran’s representative asserts that the June 2017 VA examination is inadequate because the examiner failed to elaborate in sufficient detail as to how the Veteran’s hearing loss impaired his ability to work. The VA hearing loss Disability Benefits Questionnaire (DBQ) specifies that the examiner is to determine the functional impact of a veteran’s hearing loss using a two-part question: (1) “Does the Veteran’s hearing loss impact ordinary conditions of daily life, including ability to work”; and if the veteran answers the question in the affirmative, the examiner is then asked to: (2) “Describe impact in the Veteran’s own words[.]” See VA Hearing Loss and Tinnitus DBQ dated June 27, 2017 at pg. 4 (Hearing loss, Section 4). The June 2017 VA examiner noted that the Veteran answered the first part of the question affirmatively, and for the second part of the question, recorded that the “Veteran reports difficulty hearing his family and in background noise.” VA examination report dated June 27, 2017 at pg. 4. Regarding functional impact, the June 2017 examiner reported the Veteran's complaints of hearing difficulty and how it impacts his daily life. See Martinak, supra. Thus, the evidence indicates that the service-connected hearing loss affects the Veteran in certain settings. However, no evidence of record indicates that his noncompensable hearing loss reduces his earning capacity. See Vazquez-Flores v. Shinseki, 580 F.3d 1270 (2009). Ultimately, the Board finds the June 2017 VA examination adequate for rating purposes. The Board finds that the examination report provided sufficient details to adjudicate this claim. The Board has considered the application of other provisions, including 38 C.F.R. § 3.321 (b)(1), for exceptional cases where schedular evaluations are found to be inadequate. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991); Thun v. Shinseki, 573 1366 (Fed. Cir. 2009). In this matter, a referral for extraschedular consideration is not warranted because the issue is not reasonably raised by the record. The Veteran has not asserted entitlement to an extraschedular rating, and the evidence does not indicate anything exceptional or extraordinary about his hearing loss. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (the rating criteria for hearing loss contemplate the functional effects of decreased hearing and difficulty understanding speech in different contexts, to include in an everyday work environment and in work settings in the presence of environmental noise, as these are precisely the effects that VA’s audiometric test are designed to measure). 2. Entitlement to an initial disability rating in excess of 10 percent for tinnitus. The Veteran contends that a higher disability rating for tinnitus is warranted. Throughout the entire period on appeal, the Veteran has been in receipt of a 10 percent disability rating for tinnitus under 38 C.F.R. § 4.87, Diagnostic Code 6260. Under DC 6260, a single 10 percent rating is assigned for tinnitus, whether the sound is perceived as being in one ear, both ears, or in the head. The maximum schedular rating available for tinnitus is 10 percent. 38 U.S.C. § 1155; 38 C.F.R. § 4.87; Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006). As the maximum schedular rating for tinnitus under DC 6260 has already been assigned, a higher schedular rating is not available, and the Veteran’s claim for a schedular disability rating in excess of 10 percent for tinnitus must be denied. See Sabonis v. Brown, 9 Vet. App. 426, 430 (1994). Finally, neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette, 28 Vet. App. at 369-70 (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). S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Brad Farrell, Associate Counsel