Citation Nr: 18149615 Decision Date: 11/14/18 Archive Date: 11/13/18 DOCKET NO. 16-47 785 DATE: November 14, 2018 ORDER Entitlement to an initial compensable rating for left ear hearing loss is denied. Entitlement to a rating of 10 percent, but no more, for hypertension is granted on and after May 10, 2014, subject to the laws and regulations governing the payment of monetary benefits. FINDINGS OF FACT 1. During the period on appeal, the Veteran’s left ear hearing loss was not manifested by worse than a Level I hearing loss. 2. The Veteran’s hypertension, throughout the period on appeal, has been manifested by a history of diastolic pressure of predominantly 100mm Hg or more requiring continuous medication for control, but not diastolic pressure of predominantly 110 mm Hg or more or systolic pressure of predominantly 200 mm Hg or more. CONCLUSIONS OF LAW 1. During the period on appeal, the criteria for a compensable rating for left ear hearing loss have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.385, 4.1-4.14, 4.85, 4.86, Diagnostic Code 6100 (2017). 2. With resolution of reasonable doubt in the Veteran’s favor, on and after May 10, 2014, the criteria for a disability rating of 10 percent, but no higher, for hypertension have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.14, 4.21, 4.104, Diagnostic Code 7101 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army from January 2011 to May 2014, including combat service in Afghanistan. This matter is on appeal from a December 2014 rating decision. The Veteran was last afforded VA examinations in November 2014. In a May 2017 statement, the Veteran’s representative contended that the Veteran has reported worsening symptoms in the form of use of a hearing aid and medication for hypertension and requested a new examination. “Where the record does not adequately reveal the current state of the claimant’s disability, a VA examination must be conducted.” Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). However, the Veteran’s statements do not include any contention that his symptoms have changed materially since his VA examinations. The November 2014 VA examiner had already noted that the Veteran uses medication to control his hypertension and, in his February 2015 Notice of Disagreement (NOD), the Veteran reported that he was prescribed a hearing aid during his active duty service. The Board also notes that, in a September 2016 statement, the Veteran reported that he could “barely hear” out of his left ear and that he used a hearing aid daily, but he stated that this had been the case since he was initially prescribed a hearing aid during his active duty service. Because the Veteran’s statements contain no assertion that his symptoms have worsened during the period on appeal, the Board finds that a remand for a new examination is not warranted. Neither the Veteran nor his representative have raised any other issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Increased Rating Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate Diagnostic Codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4 (2017). Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. “Staged” ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Given the nature of the present claims for higher initial evaluations, the Board has considered all evidence of severity since the effective dates for the awards of service connection. Fenderson v. West, 12 Vet. App. 119 (1999). 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. 38 C.F.R. § 4.7. In adjudicating a claim for VA benefits, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107(b). VA is to resolve any reasonable doubt in the Veteran’s favor. 38 C.F.R. § 3.102. 1. Left hearing loss The Veteran contends that his service-connected left ear hearing loss warrants a compensable rating. It is currently service-connected with a noncompensable rating on and after May 10, 2014. His right ear is not service-connected. Evaluations of defective hearing range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of a controlled Maryland CNC speech discrimination test together with the average hearing threshold level measured by pure tone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hertz). 38 C.F.R. §§ 3.385, 4.85, Diagnostic Code 6100. To evaluate the degree of disability from bilateral service-connected hearing loss, the schedule establishes 11 auditory hearing acuity levels designated from Level I for essentially normal hearing acuity through Level XI for profound deafness. 38 C.F.R. § 4.85, Tables VI and VII. Disability ratings for hearing loss are derived from a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). An exceptional pattern of hearing impairment occurs when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more. 38 C.F.R. § 4.86(a). In that situation, 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. Further, when the average 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, and that numeral will then be elevated to the next higher numeral. 38 C.F.R. § 4.86(b). Because the Veteran is only service-connected for hearing loss in one ear, the nonservice-connected ear is assigned a Roman numeral designation for hearing impairment of Level I. 38 C.F.R. § 4.85(f). An exception to this rule applies if hearing loss in the service-connected ear is compensable to a degree of 10 percent, in which case hearing loss in the nonservice-connected ear is evaluated as though it were service-connected. 38 C.F.R. § 3.383(a) (2017). In November 2014, the Veteran was afforded a VA examination. The examiner diagnosed left ear sensorineural hearing loss. The hearing examination results were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 15 10 20 LEFT 25 25 25 35 60 The puretone average in the right ear was 15 and the puretone average in the left ear was 36. Speech recognition was 100 percent in the right ear and 96 percent in the left ear. The examiner noted the Veteran’s report of functional impact in the form of difficulty hearing “distinction” in voices and needing to sit near the front during meetings. 38 C.F.R. § 4.10; Martinak v. Nicholson, 21 Vet. App. 447 (2007). The findings from this examination require the use of Table VI for the left ear. Applying the findings to that table yields a finding of Level I hearing loss in the left ear. 38 C.F.R. § 4.85, Diagnostic Code 6100. Because only the left ear is service-connected, VA must assign Level I hearing loss to the right ear, but the result of applying Table VI to the right ear would also be Level I hearing loss. Where hearing loss is at Level I in each ear, a noncompensable rating is assigned under Table VII. Id. In his February 2015 NOD, the Veteran reported that he had been prescribed a hearing aid for his left ear during his active duty service. In a September 2016 statement, the Veteran reported that he continued to wear the hearing aid prescribed during his active duty service because he could “barely hear” out of his left ear. To the extent that these statements and the fact that he appealed the assigned rating constitute assertions that his hearing loss is worse than its currently assigned noncompensable rating, he is competent to report a decrease in hearing acuity and his statements are credible. The Board acknowledges the Veteran’s complaints regarding the impact of hearing loss on his daily life, but his lay assertions do not constitute competent evidence to indicate that his hearing disability is worse than has been recorded in his VA examination or that hearing loss has functionally affected the Veteran in any more severe ways than have been discussed in the record and were already considered by medical professionals. The competence of a lay person to provide a medical opinion must be determined on a case by case basis. Kahana v. Shinseki, 24 Vet. App. 428 (2011). The Veteran in this case is not competent to make such a conclusion. Determining the severity of hearing loss involves using specialized equipment and interpreting audiological test results. The record does not show that the Veteran possesses the training or experience needed to accomplish these actions. The probative value of his assertions is less than the VA examination report. The rating criteria contemplate speech reception thresholds and ability to hear spoken words on Maryland CNC testing. The functional impact that the Veteran describes, difficulty hearing speech, is contemplated by the rating criteria. Doucette v. Shulkin, 28 Vet. App. 366 (2017). The Veteran’s main complaint is reduced hearing acuity and clarity, which is what is contemplated in the rating assigned. See Martinak, 21 Vet. App. 447. In brief, the VA examination findings are of greater probative value than the Veteran’s allegations regarding the severity of his hearing loss and the nature of any functional impairment is adequately reflected by those medical findings. Accordingly, the preponderance of the most probative evidence is against the claim of entitlement to a compensable rating for left ear hearing loss. 2. Hypertension The Veteran contends that his hypertension warrants a higher rating than that currently assigned. It is currently rated under 38 C.F.R. § 4.104, Diagnostic Code 7101, with a noncompensable rating on and after May 10, 2014. Under Diagnostic Code 7101, hypertension is rated as follows: diastolic pressure that is predominantly 130 mm Hg or more (60 percent); diastolic pressure that is predominantly 120 mm Hg or more (40 percent); diastolic pressure that is predominantly 110 mm Hg or more or systolic pressure that is predominantly 200 mm Hg or more (20 percent); and diastolic pressure that is predominantly 100 mm Hg or more or systolic pressure that is predominantly 160 mm Hg or more (10 percent). 38 C.F.R. § 4.104, Diagnostic Code 7101. A 10 percent rating is also possible if a veteran who requires continuous medication for blood pressure control has a history of diastolic pressure that was predominantly 100 mm Hg or more. Id. The Veteran was afforded a VA examination in November 2014. The examiner conducted three blood pressure readings, the highest of which was 152/96 mm Hg. The examiner also noted that the Veteran’s hypertension required continuous medication for control and that he had a history of diastolic pressure of predominantly 100 mm Hg or more. The examiner added that the Veteran still had diastolic pressure of 100 mm Hg on frequent occasions. The examiner found that the Veteran’s hypertension would have no impact on his ability to work. In his February 2015 NOD and in a September 2016 statement, the Veteran reported that he continued to take medication for his hypertension. Based on the evidence described above, the Board finds that, affording the Veteran the benefit of the doubt, his hypertension warrants an evaluation of 10 percent throughout the period on appeal. The VA examiner found that the Veteran had a history of diastolic pressure of predominantly 100 mm Hg or more that required continuous medication for control, which is a disability picture contemplated by the 10 percent criteria, and the Veteran has reported that he continues to take medication. The Board does not, however, find that the criteria for a rating in excess of 10 percent are more nearly approximated by the Veteran’s symptoms at any point during the period on appeal. The record contains no evidence of diastolic pressure of predominantly 100 mm Hg or more or systolic pressure of predominantly 200 mm Hg or more. Even if the Veteran’s hypertension might be more severe without the use of medication, the ameliorative effect of medication is a factor contemplated by the criteria for a 10 percent rating. McCarroll v. McDonald, 28 Vet. App. 267 (2016) The Board has also taken the Veteran’s lay statements into account. The Veteran is competent to report his own observations with regard to the symptomatology of his hypertension. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). His statements are also credible. However, the rating criteria for a rating in excess of 10 percent for hypertension focus entirely on diastolic and systolic blood pressure and nothing in the Veteran’s lay statements indicates that his hypertension meets the criteria for a rating in excess of 10 percent. D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Ryan Frank, Counsel