Citation Nr: 18149989 Decision Date: 11/14/18 Archive Date: 11/14/18 DOCKET NO. 16-30 596 DATE: November 14, 2018 ORDER An initial compensable rating for bilateral hearing loss is denied. FINDINGS OF FACT For the entire appeal period, the Veteran’s bilateral hearing loss results in no worse than Level IV hearing in the right ear and no worse than Level II hearing in the left ear. CONCLUSION OF LAW The criteria for an initial compensable rating for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in active duty from December 1968 through November 1972. This matter comes before the Board of Veterans Appeals (Board) on an appeal from a November 2012 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that, following the issuance of the May 2016 statement of the case, the Veteran submitted additional evidence in support of his appeal in May 2017. 38 U.S.C. § 7105(e)(1). Further, while updated VA treatment records that reference to the Veteran’s bilateral hearing loss were subsequently associated with the record in May 2018, such are duplicative of those previously of record. 38 C.F.R. § 20.1304(c). Therefore, the Board may properly consider the entirety of the evidence of record pertinent to the Veteran’s bilateral hearing loss. The Board further observes that a June 2018 rating decision denied an increased rating for right eye aphakia, and the Veteran entered a notice of disagreement as to such denial in July 2018. Although a statement of the case has not yet been issued, according to the Veterans Appeals Control and Locator System, the claim is still being developed by the Agency of Original Jurisdiction (AOJ). As a result, the Board declines jurisdiction over this issue until such time as an appeal to the Board is perfected. Entitlement to an initial compensable rating for bilateral hearing loss. 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. 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. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. All reasonable doubt will be resolved in the claimant’s favor. 38 C.F.R. § 4.3. 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. Separate ratings can be assigned for separate periods based on the facts found - a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. The Veteran’s service-connected bilateral hearing loss is currently assigned a noncompensable rating under 38 C.F.R. § 4.85, Diagnostic Code 6100, as of October 2, 2008. Ratings of hearing loss range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of speech discrimination tests combined with the average hearing threshold levels as measured by pure tone audiometry tests in the frequencies 1000, 2000, 3000, and 4000 cycles per second. To rate the degree of disability for service-connected hearing loss, the Rating Schedule has established eleven auditory acuity levels, designated from Level I, for essentially normal acuity, through Level XI, for profound deafness. 38 C.F.R. § 4.85(h), Table VI. In order to establish entitlement to a compensable rating for hearing loss, it must be shown that certain minimum levels of the combination of the percentage of speech discrimination loss and average pure tone decibel loss are met. The assignment of disability ratings for hearing impairment is derived by a mechanical application of the Rating Schedule to the numeric designations assigned after audiometric evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). The criteria for rating hearing impairment use controlled speech discrimination tests (Maryland CNC) together with the results of pure tone audiometry tests. These results are then charted on Table VI, or Table VIA in exceptional cases as described in 38 C.F.R. § 4.86, and Table VII, as set out in the Rating Schedule. 38 C.F.R. § 4.85. An exceptional pattern of hearing loss occurs when the pure tone threshold at 1000, 2000, 3000, and 4000 Hertz is 55 decibels or more, or when the pure tone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz. 38 C.F.R. § 4.86. Upon VA examination in November 2009, pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 50 50 50 60 LEFT 15 20 30 35 The Veteran’s pure tone threshold average for the right ear was 53 decibels, and his pure tone threshold average for the left ear was 25 decibels. No exceptional pattern of hearing impairment was shown. Speech discrimination was 76 percent in the right ear and 88 percent in the left ear. Applying Table VI, the Veteran has Level IV hearing in the right ear and Level II hearing in the left ear. Such results in a noncompensable rating pursuant to Table VII. In connection with his refitting for hearing aids in January 2016, the Veteran underwent a VA audiological evaluation; however, the examiner noted that such was not adequate for adjudication purposes and he was advised to seek a VA examination through the AOJ for the evaluation of his bilateral hearing loss. On VA examination in May 2016, pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 55 55 60 65 LEFT 40 40 50 50 The Veteran’s pure tone threshold average for the right ear was 59 decibels, and his pure tone threshold average for the left ear was 45 decibels. However, an exceptional pattern of hearing impairment was shown in the right ear. Speech discrimination was 76 percent in the right ear and 84 percent in the left ear. Applying Table VI, the Veteran has Level IV hearing in the right ear and Level II hearing in the left ear. Further, applying Table VIA, he also had Level IV hearing in the right ear. Such results in a noncompensable rating pursuant to Table VII. In connection with his refitting for hearing aids in April 2017, the Veteran underwent a VA audiological evaluation. At such time, pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 55 55 60 65 LEFT 35 35 40 45 The Veteran’s pure tone threshold average for the right ear was 59 decibels, and his pure tone threshold average for the left ear was 39 decibels. However, an exceptional pattern of hearing impairment was shown in the right ear. Speech discrimination was 76 percent in the right ear and 96 percent in the left ear. Applying Table VI, the Veteran has Level IV hearing in the right ear and Level I hearing in the left ear. Further, applying Table VIA, he also had Level IV hearing in the right ear. Such results in a noncompensable rating pursuant to Table VII. The Board notes that the Veteran also submitted records of private audiological examinations conducted in October 2010 and October 2013; however, such reflect that speech discrimination testing was done with the NU-6 word list rather than the Maryland CNC word list. Consequently, such examinations are inadequate for rating purposes. Furthermore, a review of such testing reveals findings consistent with the VA examinations that were conducted both prior and subsequent to such evaluations. To the extent that the Veteran contends that his bilateral hearing loss is more severe than currently evaluated, the Board observes that the Veteran, while competent to report symptoms capable of lay observation, to include difficulty understanding people in communication settings, is not competent to report that his hearing acuity is of sufficient severity to warrant a 10 percent or greater evaluation 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); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2006); Charles v. Principi, 16 Vet. App. 370 (2002); Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). In Doucette v. Shulkin, 28 Vet. App. 366 (2017), the United States Court of Appeals for Veterans Claims held that the rating criteria for hearing loss contemplate the functional effects of decreased hearing and difficulty understanding speech in an everyday work environment as these are the effects that VA’s audiometric tests are designed to measure. The Veteran has not otherwise described functional effects that are considered exceptional or, that are not otherwise contemplated by the assigned evaluation. Id. In this regard, the Board is cognizant that he has repeatedly alleged that he experiences dizziness or disequilibrium as a result of his bilateral hearing loss. However, he has undergone extensive medical testing to determine the etiology of such complaints, and his treatment providers have consistently found his dizziness to be caused by labyrinthitis or possibly Meniere’s disease, but have not found that it is related to his service-connected bilateral hearing loss. In fact, he has been previously denied service connection for such claimed disorder as secondary to his bilateral hearing loss. Therefore, while the Veteran is certainly competent to describe the symptoms related to his dizziness, he is not competent to relate such to his bilateral hearing loss as he has not been shown to have the requisite expertise to address such a medically complicated question. See Woehlaert, supra. Therefore, the Board finds that the Veteran’s complete disability picture in regard to his bilateral hearing loss is compensated under the rating schedule. Further, neither he nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record, in regard to the instant claim. Id. (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). Therefore, the Board finds that the Veteran is not entitled to an initial compensable rating for his bilateral hearing loss at any point pertinent to the appeal period. In reaching such decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran’s claim for an initial compensable rating for his bilateral hearing loss. Therefore, the benefit of the doubt doctrine is not applicable in the instant appeal and his initial rating claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. A. JAEGER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Gardner Gaye, Associate Counsel