Citation Nr: 18146373 Decision Date: 10/31/18 Archive Date: 10/31/18 DOCKET NO. 14-41 919 DATE: October 31, 2018 ORDER A rating in excess of 30 percent prior to December 15, 2015, and 50 percent thereafter, for bilateral hearing loss is denied. FINDINGS OF FACT 1. Prior to December 15, 2015, the Veteran has had no worse than Level XI hearing loss in his right ear and Level III in his left ear, with an exceptional pattern of hearing impairment in his right ear. 2. From December 15, 2015, onward, the Veteran has had no worse than Level VIII hearing loss in either his left or right ear, with exceptional patterns of hearing impairment in both ears. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 30 percent prior to December 15, 2015, for bilateral hearing loss have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.3, 4.10, 4.85, Diagnostic Code (DC) 6100. 2. The criteria for a rating in excess of 50 percent, from December 15, 2015, onward, for bilateral hearing loss have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.3, 4.10, 4.85, DC 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the United States Army from May 1968 to February 1970. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a March 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). Entitlement to a rating in excess of 30 percent prior to December 15, 2015, and 50 percent thereafter, for bilateral hearing loss. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentage is based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, the Board must also consider staged ratings. Staged ratings are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct time periods during the course of the appeal. Hart v. Mansfield, 21 Vet. App. 505, 509–10 (2007). The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, 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. Esteban v. Brown, 6 Vet. App. 259, 262 (1994); 38 C.F.R. § 4.14. Disability ratings for hearing loss are assigned based on the results of controlled speech discrimination tests combined with the results of pure tone audiometry tests. See 38 C.F.R. §§ 4.85–4.87. An examination for VA rating purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test, specifically, the Maryland CNC test, and a pure tone audiometry test. 38 C.F.R. §4.85(a). Further, disability ratings for hearing impairment are assigned through a structured formula, i.e., a mechanical application of the rating schedule to numeric designations that are assigned after audiometric evaluations have been rendered. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). The rating criteria for hearing loss provide tables for combining the level of loss in the ears. Table VI is used to determine a Roman numeral designation for each ear based on a combination of the speech discrimination percentage and the average pure tone threshold, or the sum of thresholds at 1000, 2000, 3000, and 4000 Hertz, divided by four. Table VIA designates a Roman numeral based on the average pure tone thresholds only. Table VI is typically used, but Table VIA may be used for exceptional patterns of hearing loss. After a Roman numeral designation has been assigned for each ear, Table VII is used to determine the compensation rate by combining such designations for impairment in both ears. 38 C.F.R. §§ 4.85, 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 will be evaluated separately. 38 C.F.R. § 4.86(a). When the pure tone 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. 38 C.F.R. § 4.86(b). The Board first notes that the Veteran does have an exceptional pattern of hearing impairment in his right ear prior to December 2015, and in both ears after that date. See 38 C.F.R. § 4.86. All applicable tests include valid pure tone and speech discrimination scores. See 38 C.F.R. §§ 4.85, 4.86. The Veteran has been assigned a 30 percent rating prior to December 15, 2015, and 50 percent thereafter for the period on appeal. The Board has reviewed the evidence, and finds that the Veteran’s bilateral hearing loss disability does not warrant a higher rating for either period, as discussed below. The Veteran underwent a VA examination in January 2014, and his results were as follows: Right Ear A B C D E F G 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz 6000 Hz 8000 Hz 70 70 105+ 105+ 105+ 105+ 90 Left Ear A B C D E F G 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz 6000 Hz 8000 Hz 50 45 65 70 75 75 85 The pure tone average in the right ear was 96 decibels and 64 decibels in the left ear. Speech recognition scores were 28 percent in the right ear and 88 percent in the left ear. The Board notes that the Veteran had an exceptional pattern of hearing impairment in his right ear per § 4.86(a). Such findings translate to Level III in the left ear. In the right ear, he had Level IX under Table VIA (puretone only) and XI under table VI. 38 C.F.R. § 4.85, Table VI, VIA. Applying Table VII, DC 6100, this equates to a 20 percent disability rating. In January 2016, the Veteran underwent another VA examination, and his results were as follows: Right Ear A B C D E F G 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz 6000 Hz 8000 Hz 70 70 85 90 90 90 85 Left Ear A B C D E F G 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz 6000 Hz 8000 Hz 70 75 80 90 95 95 90 The pure tone average in the right ear was 84 decibels and 85 decibels in the left ear. Speech recognition scores were 84 percent in the right ear and 96 percent in the left ear. The Veteran has an exceptional pattern of hearing impairment in both ears per § 4.86(a). Using Table VI, the Veteran has Level IV in his right ear and Level III in his left ear. Using Table VIA, he has Level VIII in both ears. 38 C.F.R. § 4.85, Table VI, VIA. Applying Table VII, DC 6100, this equates to a 50 percent disability rating. The Board acknowledges the Veteran’s statements and testimony regarding his hearing loss. Specifically, at the earlier VA examination he reported difficulty understanding speech. At the later VA examination, he stated that his hearing aids are turned up and that his hearing needs to be accurate for his occupation. He indicated that he cannot talk on the phone or watch television. The Board notes that the Veteran is competent to report these symptoms, and the Board also finds him credible, as the statements on these points are consistent. See Jandreau, 492 F.3d at 1377. Nevertheless, VA’s rating of hearing impairment is based on specific measurements that must be gathered by a state-licensed audiologist using specific tests, as discussed above. As such, the medical evidence and test results are more probative and outweigh the lay subjective reports of a more severe degree of disability because they directly address the rating criteria for the Veteran’s hearing loss. The Board notes that VA’s Schedule for Rating Disabilities has been found to contemplate the problems reported by the Veteran in terms of his difficulty hearing others. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (holding that “the rating criteria for hearing loss contemplate the functional effects of difficulty hearing and understanding speech”). (Continued on the next page)   Accordingly, this claim must be denied. The Board has considered the applicability of the benefit of the doubt doctrine, but the preponderance of the evidence is against a compensable rating. Under these circumstances, the doctrine is not applicable. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD G. Morales, Associate Counsel