Citation Nr: 18150194 Decision Date: 11/14/18 Archive Date: 11/14/18 DOCKET NO. 13-24 205 DATE: November 14, 2018 ORDER Entitlement to a higher initial rating for bilateral hearing loss, currently evaluated as noncompensable prior to January 5, 2018, and 50 percent disabling from January 5, 2018 is denied. FINDINGS OF FACT 1. Prior to January 5, 2018, the Veteran’s bilateral hearing loss was manifested by no worse than Level II hearing in the right ear and no worse than Level IV hearing in the left ear. 2. From January 5, 2018, the Veteran’s bilateral hearing loss has been manifested by no worse than Level XI hearing in the right ear and no worse than Level VI hearing in the left ear. CONCLUSION OF LAW The criteria for a compensable initial rating prior to January 5, 2018, and an initial rating in excess of 50 percent from January 5, 2018, for bilateral hearing loss, have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100, and Tables VI, VIA, and VII (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from September 1955 to September 1958 and from October 1958 to October 1960. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a November 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. The Veteran’s claims file is currently under the jurisdiction of the Philadelphia, Pennsylvania RO. This case was previously remanded by the Board in August 2017. A review of the claims file shows that there has been substantial compliance with the Board’s remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). The case has been returned to the Board for review. In May 2017, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. In a January 2018 rating decision, the Agency of Original Jurisdiction (AOJ) increased the rating for the Veteran’s bilateral hearing loss to 50 percent, effective January 5, 2018. As the increase did not satisfy the appeal in full, the issue remains on appeal and has been characterized as shown on the title page of this decision. See AB v. Brown, 6 Vet. App. 35 (1993). 1. Entitlement to an Increased Initial Rating for Bilateral Hearing Loss Increased Rating – General Legal Criteria Disability ratings are determined by the application of VA’s Schedule for Rating Disabilities (Schedule), which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155 (2012); 38 C.F.R. Part 4 (2017). Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficient to identify the disease and the resulting disability and, above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21; see also Mauerhan v. Principi, 16 Vet. App. 436 (2002). When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings,” in all claims for increased ratings. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999). Analysis The Veteran seeks higher initial ratings for his service-connected bilateral hearing loss. The Veteran’s service-connected bilateral hearing loss is rated as noncompensable prior to January 5, 2018, and 50 percent disabling from January 5, 2018, under 38 C.F.R. § 4.85, Diagnostic Code 6100. The applicable rating period is from June 3, 2011, the effective date for the award of service connection for bilateral hearing loss, through the present. See 38 C.F.R. § 3.400. Ratings for 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 puretone threshold levels as measured by puretone audiometry tests at the frequencies 1000, 2000, 3000, and 4000 Hertz. To rate the degree of disability for hearing loss, the 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. 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 puretone decibel loss are met. The assignment of disability ratings for hearing impairment is derived by a mechanical application of the Schedule to the numeric designations assigned after audiometric evaluations are rendered. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). The criteria for rating hearing impairment use the results of puretone audiometry tests together with the results of controlled speech discrimination tests, using the Maryland CNC test. Results of those tests are charted on Table VI and Table VII as set out in the Schedule. Table VIA, which allows for rating based only on puretone threshold averages, is used instead of Table VI when an examiner certifies that the use of speech discrimination testing is not appropriate or when there is an exceptional pattern of hearing impairment. 38 C.F.R. § 4.85(c). When the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, 4000 Hertz) is 55 decibels or more, it is appropriate to use the Roman numeral designation for hearing impairment from either Table VI or Table Via, whichever is results in the higher numeral. Each ear will be evaluated separately. When the puretone threshold is 30 decibels or less at 1000 Hz, and 70 decibels or more at 2000 Hz, it is appropriate to use 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. Each ear is evaluated separately. 38 C.F.R. § 4.86 (b). Turning to the relevant evidence of record, the Veteran was provided a VA audiological examination in September 2012. The pertinent audiometric results, measured in decibels, were: HERTZ 1000 2000 3000 4000 Average RIGHT 15 50 60 70 49 LEFT 25 55 90 90 65 Speech audiometry revealed speech recognition ability of 96 percent in the right ear and 92 percent in the left ear. The results of the September 2012 audiological testing do not reflect an exceptional pattern of hearing impairment. See 38 C.F.R. § 4.86. Under Table VI, the right ear is assigned a Level I impairment and the left ear is assigned a Level II impairment. When applied to Table VII, a noncompensable rating is warranted. The Veteran was provided a VA audiological examination in May 2015. The pertinent audiometric results, measured in decibels, were: HERTZ 1000 2000 3000 4000 Average RIGHT 15 50 60 65 47.5 LEFT 15 40 70 80 51.25 Speech audiometry revealed speech recognition ability of 88 percent in the right ear and 80 percent in the left ear. The results of the May 2015 audiological testing do not reflect an exceptional pattern of hearing impairment. See 38 C.F.R. § 4.86. Under Table VI, the right ear is assigned a Level II impairment and the left ear is assigned a Level IV impairment. When applied to Table VII, a noncompensable rating is warranted. At the May 2017 Board hearing, the Veteran stated that he has difficulty interpreting what people are saying and that he cannot hear or understand what people are saying in a crowded restaurant. The Veteran was provided a VA audiological examination on January 5, 2018. The pertinent audiometric results, measured in decibels, were: HERTZ 1000 2000 3000 4000 Average RIGHT 30 70 70 85 64 LEFT 30 70 70 85 64 Speech audiometry revealed speech recognition ability of 8 percent in the right ear and 68 percent in the left ear. The results of the January 2018 audiological testing reflect an exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 (b) for both ears. Under Table VI, the right ear is assigned a Level XI impairment. Under Table VIA, the right ear is assigned a Level V impairment. Level XI is the higher Roman numeral, and is the highest Roman numeral available under Table VI. Under Table VI or Table VIA, the left ear is assigned a Level V impairment. Additionally, that numeral is elevated to the next higher Roman numeral. As such, the Veteran’s left ear is assigned a level VI impairment. When applied to Table VII, a 50 percent rating is warranted. Accordingly, the competent evidence of record does not reflect that the Veteran’s bilateral hearing loss warranted a compensable disability rating prior to January 5, 2018, or a disability rating in excess of 50 percent from January 5, 2018. To the extent that the Veteran contends that his bilateral hearing loss is more severe than reflected by his current disability ratings, the Board acknowledges that the Veteran can attest to factual matters of which he has first-hand knowledge and understanding as a lay person such as difficulty understanding conversation. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, he is not competent to state that his hearing acuity is of a severity sufficient to warrant a higher rating under VA’s tables for rating hearing loss disabilities because such an opinion requires medical expertise and knowledge that he has not been shown to possess. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Accordingly, the Board attaches more probative weight to the medical records and clinical findings from the skilled medical professionals who conducted the VA audiological testing than to the Veteran’s lay witness statements. Moreover, the assignment of disability ratings for hearing loss is primarily based upon a mechanical application of the rating criteria, as explained and applied in this decision. In this case, the clinical evidence of record, when mechanically applied to the rating criteria, simply does not show that a compensable rating prior to January 5, 2018, or a rating in excess of 50 percent from January 5, 2018, is warranted. Neither the Veteran nor his representative has raised any other issues with regard to the rating for the service-connected bilateral hearing loss, nor have any other such issues been reasonably raised by the record. See Yancy v. McDonald, 27 Vet. App. 484, 495 (2016); Doucette v. Shulkin, 28 Vet. App. 366 (2017). Specifically, the Veteran has described the functional impact from his bilateral hearing loss as difficulty hearing. The provisions of 38 C.F.R. §§ 4.85 and 4.86 contemplate, and thus compensate for, the functional effects of hearing loss, namely difficulty understanding speech and the inability to hear sounds in various contexts. Doucette, 28 Vet. App. at 369. The situations noted by the Veteran in this case amount to decreased hearing and difficulty understanding speech in an everyday environment, and are not exceptional or unusual for someone with hearing loss. The Board therefore finds that the criteria for a compensable initial disability rating prior to January 5, 2018, and an initial disability rating in excess of 50 percent from January 5, 2018, for bilateral hearing loss, have not been met at any time during the relevant rating period. As the preponderance of the evidence is against the assignment of a compensable initial rating prior to January 5, 2018, and an initial rating in excess of 50 percent from January 5, 2018, the benefit-of-the-doubt doctrine is not for application, and the appeal must be denied. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990).   VA’s Duty to Notify and Assist With respect to the Veteran’s claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156 (a), 3.159, 3.326 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). U. R. POWELL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. G. LeMoine, Associate Counsel