Citation Nr: 18148322 Decision Date: 11/07/18 Archive Date: 11/07/18 DOCKET NO. 16-58 039 DATE: November 7, 2018 ORDER A higher initial disability rating for bilateral hearing loss, currently rated as noncompensable prior to May 23, 2018, and as 10 percent disabling from that day forward, is denied. FINDINGS OF FACT 1. Prior to May 23, 2018, the Veteran had at worst Level II hearing in the right ear and Level II hearing in the left ear. 2. Beginning May 23, 2018, the Veteran had at worst Level III hearing in the right ear and Level II hearing in the left ear. CONCLUSIONS OF LAW 1. Prior to May 23, 2018, the criteria for a compensable rating for bilateral hearing loss are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.85 (Tables VI, VIA and VII, Diagnostic Code 6100), 4.86. 2. Beginning May 23, 2018, the criteria for a disability rating in excess of 10 percent for bilateral hearing loss are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.85 (Tables VI, VIA and VII, Diagnostic Code 6100), 4.86. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1961 to November 1963. The claim was remanded by the Board in December 2017 for additional development. As that development has been completed, the claim is ready for further appellate action. A September 2018 rating decision granted an initial rating of 10 percent disability rating for bilateral hearing loss, effective May 23, 2018. As a claimant is presumed to be seeking the maximum benefit allowed by law and regulation, and a claim remains in controversy where less than the maximum available benefit is awarded, the claim for a higher initial rating for bilateral hearing loss remains before the Board. AB v. Brown, 6 Vet. App. 35 (1993). 1. Entitlement to a higher initial disability rating for bilateral hearing loss, currently rated as noncompensable prior to May 23, 2018, and as 10 percent disabling from that day forward The Veteran contends that his service-connected bilateral hearing loss is more severe than currently rated. The Board finds that the evidence does not support his claim for a higher initial rating. Disability ratings are determined by applying the criteria set forth in the VA’s Schedule for Rating Disabilities, which are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes (DCs). 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. Evaluations of hearing loss range from noncompensable to 100 percent, based upon organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests, together with the average hearing threshold level as measured by pure tone audiometry tests in the frequencies 1000, 2000, 3000, and 4000 cycles per second. 38 C.F.R. § 4.85(a), (d). To evaluate the degree of disability for service-connected bilateral hearing loss, the rating schedule establishes eleven (11) auditory acuity levels, designated from level I, for essentially normal acuity, through level XI, for profound deafness. 38 C.F.R. § 4.85, Diagnostic Code 6100. When the pure tone thresholds at the four specified frequencies (1000, 2000, 3000, and 4000 hertz) are 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. 38 C.F.R. § 4.86 (a). When the pure tone thresholds are 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 highest Roman numeral. 38 C.F.R. § 4.86 (b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Upon VA audiogram in July 2011, pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 25 40 55 70 48 LEFT 25 40 60 70 49 Speech audiometry revealed speech recognition ability of 92 percent in the right ear and of 88 percent in the left ear. A VA examination in March 2012 revealed that pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 25 35 50 65 44 LEFT 20 30 45 60 39 Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 94 percent in the left ear. Upon VA examination in March 2016, pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 15 35 55 60 41 LEFT 20 30 50 70 43 Speech audiometry revealed speech recognition ability of 88 percent in the right ear and of 92 percent in the left ear. A January 2018 private audiogram revealed, pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 45 55 75 85 65 LEFT 45 55 70 85 64 Speech audiometry revealed speech recognition ability of 95 percent in the right ear and of 92 percent in the left ear. The Board notes that this private treatment record does not indicate that the required Maryland CNC word list was used in obtaining the speech audiometry scores. Finally, a May 2018 VA examination revealed that pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 50 65 80 85 70 LEFT 40 60 80 95 69 Speech audiometry revealed speech recognition ability of 86 percent in the right ear and of 80 percent in the left ear. Regarding the functional impact of the Veteran’s bilateral hearing loss, throughout the entire claim, the Veteran reported that he has a difficult time hearing conversation in a restaurant, a room with background noise, while in the car, or on the telephone. He has further reported that he often must be facing the person speaking in order to understand them. He has stated that it is embarrassing to him that he has to ask people to speak up or to repeat themselves. Prior to May 23, 2018, with respect to the right ear, the greatest pure tone threshold average was 65 decibels with a speech recognition score of 95 percent, recorded in the January 2018 private treatment record. Similarly, with respect to the left ear, the greatest pure tone threshold average was 64 decibels with a speech recognition score of 92 percent, recorded in the 2018 private treatment record. As noted above, the Board cannot rely on the January 2018 private record as it is not clear that the required Maryland CNC testing was utilized in obtaining the speech recognition score. However, even if the Board were to accept this evidence, the right and left audiogram results translate to Level I hearing impairment for both ears under Table VI. Level I hearing impairment in both ears warrants a noncompensable or zero percent rating under the applicable criteria. 38 C.F.R. § 4.85, Diagnostic Code 6100. There is no evidence of an exception pattern of hearing in this case. See 38 C.F.R. § 4.86. Accordingly, an increased schedular rating is not warranted prior to May 23, 2018. The VA examination conducted on May 23, 2018, includes the only audiogram data for the second period on appeal. During this audiogram, the pure tone threshold average was 70 decibels with a speech recognition score of 86 percent. With respect to the left ear, the greatest pure tone threshold average was 69 decibels with a speech recognition score of 80 percent. This translates to Level III hearing impairment for in the right ear and Level II impairment in the left ear under Table VI. Level III hearing impairment in one ear and Level II impairment in the left ear warrants a 10 percent disability rating under the applicable criteria. 38 C.F.R. § 4.85, Diagnostic Code 6100. There is no evidence of an exception pattern of hearing in this case. See 38 C.F.R. § 4.86. Accordingly, an increased schedular rating in excess of 10 percent is not warranted for any period on appeal. In considering the appropriate disability ratings, the Board has also considered the Veteran’s statements that his bilateral hearing loss disabilities are worse than the rating he currently receives. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. While the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, he is not competent to identify a specific level of disability of his disabilities according to the appropriate diagnostic codes. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (“although interest may affect the credibility of testimony, it does not affect competency to testify”). On the other hand, such competent evidence concerning the nature and extent of the Veteran’s disabilities has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports) directly address the criteria under which this disability is evaluated. Finally, the Board notes that neither the Appellant nor her 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, 69-70 (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). B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A.B., Counsel