Citation Nr: 18150263 Decision Date: 11/14/18 Archive Date: 11/14/18 DOCKET NO. 16-40 546 DATE: November 14, 2018 ORDER Entitlement to an initial compensable disability rating for bilateral hearing loss is denied. FINDING OF FACT Throughout the rating period on appeal, the Veteran’s bilateral hearing loss was manifested by no worse than level I hearing impairment in the right and left ear. CONCLUSION OF LAW The criteria for an initial compensable disability rating for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.21, 4.85, 4.86, Diagnostic Code 6100 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Army from December 1983 to November 1986 and November 1988 to April 1993. This matter comes before the Board of Veteran's Appeals (Board) from a March 2015 rating decision by the Regional Office (RO) of the Department of Veterans Affairs (VA). I. Duty to Notify and Assist The Veteran’s representative asserted in an August 2018 informal hearing presentations (IHP) that the March 2015 hearing loss examinations the Veteran underwent were “not indicative of the true severity of his bilateral hearing loss.” The representative also noted that the Veteran included in his VA Form 9 from August 2016 that the July 2016 VA examination was inadequate because “he was put in a room that was sound proof with ear muffs.” The Veteran contends the VA examination are not adequate because his hearing problems exist in “normal settings” with distractions, not in a VA examination environment. However, the Court of Appeals for Veterans Claims (Court) has upheld VA’s policy of conducting audiometric testing in a sound-controlled room, which is designed to obtain the necessary information for the full and accurate application of the hearing loss rating schedule. Martinak v. Nicholson, 21 Vet. App. 447, 454 (2007). Moreover, the Court recognized in Doucette v. Shulkin, 28 Vet. App. 366 (2017) that VA’s audiometric tests are specifically designed to measure the functional effects of decreased hearing and difficulty understanding speech in an everyday work environment; thus, the Veteran’s difficulty hearing or understanding speech or other sounds in various contexts was sufficiently measured during the Veteran’s March 2015 and July 2016 VA audiology examinations. Neither the Veteran nor his representative has 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). II. Bilateral Hearing Loss Disability ratings are assigned under a schedule for rating disabilities and based on a comparison of the veteran’s symptoms to the criteria in the rating schedule. 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 Rating Schedule but 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 (2017); see also Mauerhan v. Principi, 16 Vet. App. 436 (2002). The primary concern in a claim for increased rating is the present level of disability. Although the overall history of the veteran’s disability shall be considered, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, when an appeal is based on the assignment of an initial rating for a disability following an initial award of service connection for that disability, the rule articulated in Francisco does not apply. Fenderson v. West, 12 Vet. App. 119 (1999). Instead, the evaluation must be based on the overall recorded history of a disability, giving equal weight to past and present medical reports. Id. In all claims for an increased disability rating, VA has a duty to consider the possibility of assigning staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). With regard to hearing loss disabilities, evaluations range from non-compensable to 100 percent based on organic impairment of hearing acuity, as measured by controlled speech discrimination tests in conjunction with the average hearing threshold, as measured by puretone audiometric tests in the frequencies 1,000, 2,000, 3,000 and 4,000 cycles per second. The rating schedule establishes 11 auditory acuity levels designated from Level I, for essentially normal hearing acuity, through Level XI for profound deafness. VA audiometric examinations are conducted using a controlled speech discrimination test (Maryland CNC) together with the results of a puretone audiometry test. In 38 C.F.R. § 4.85 (2017), the vertical lines of Table VI represent nine categories of the percentage of discrimination based on the controlled speech discrimination test. The horizontal columns of Table VI represent nine categories of decibel (dB) loss based on the puretone audiometry test. The numeric designation of impaired hearing (Levels I through XI) is determined for each ear by intersecting the vertical row appropriate for the percentage of discrimination and the horizontal column appropriate to the puretone decibel loss. The percentage disability evaluation is then found from Table VII of 38 C.F.R. § 4.85 (2017), by intersecting the vertical column appropriate for the numeric designation for the ear having the better hearing acuity and the horizontal row appropriate to the numeric designation level for the ear having the poorer hearing acuity. Further, the provisions of 38 C.F.R. § 4.86 (2017) address exceptional patterns of hearing impairment. When the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz (Hz)) is 55 dB 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) (2017). Each ear will be evaluated separately. Further, when the puretone threshold is 30 dB or less at 1,000 Hz and 70 dB or more at 2,000 Hz, 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 (b) (2017). That numeral will then be elevated to the next higher Roman numeral. Id. The Veteran contends that he is entitled to an initial compensable rating for bilateral hearing loss. However, as outlined below, the preponderance of the evidence is against the claim. The Board will analyze the evidence of record against the above diagnostic criteria to determine whether a compensable disability rating is warranted for the Veteran’s bilateral hearing loss. In doing so, the Board notes that it has reviewed all of the evidence in the Veteran’s claims file, placing an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no obligation to discuss, in detail, the extensive evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that the Board must review the entire record, but does not have to discuss each piece of evidence). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board’s analysis will focus specifically on what the evidence shows, or fails to show, as it relates to the Veteran’s claim. In March 2015, the Veteran underwent a VA audiology exam. At that time, the Veteran’s audiometric results were reported as follows: HERTZ 1000 2000 3000 4000 Avg RIGHT 5 5 25 50 21 LEFT 10 10 30 50 25 Speech audiometry revealed speech recognition ability of 94 percent in the right ear and of 94 percent in the left ear. Puretone threshold averages were 21dB for the right ear and 25dB for the left. Table VI was used to determine the Veteran’s hearing impairment levels correspond to Level I in the left and right ear. Intersecting Levels I and I under Table VII result in a non-compensable disability rating. See 38 C.F.R. § 4.86. Upon consideration of the above findings, the Board finds that the March 2015 VA audiology exam showed that the Veteran does not qualify for a compensable disability. The Board notes that this finding does not signify the absence of a disability associated with the Veteran’s hearing loss. The Board is cognizant of the Veteran’s contentions concerning his difficulty in hearing. See Martinak v. Nicholson, 21 Vet. App. 447, 455-56 (2007). However, the assignment of disability ratings for hearing impairment is derived from a mechanical formula. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). In this case, the mechanical application does not yield a compensable disability rating for the Veteran’s level of hearing loss at any time during the appeals period. In July 2016, the Veteran underwent a new audiology exam because the Veteran contends that the March 2015 audiology exam reviewed by the RO for the March 2015 Rating Decision was inadequate. At that time, the Veteran’s audiometric results were reported as follows: HERTZ 1000 2000 3000 4000 Avg RIGHT 10 15 30 55 28 LEFT 10 20 35 55 30 Speech audiometry revealed speech recognition ability of 100 percent in the right ear and of 96 percent in the left ear. Puretone threshold averages were 28dB for the right ear and 30dB for the left. Table VI was used to determine the Veteran’s hearing impairment levels correspond to Level I in the left and right ear. Intersecting Levels I and I under Table VII result in a non-compensable disability rating. 38 C.F.R. § 4.86. Upon consideration of the above findings, the Board finds that the Veteran does not qualify for a compensable disability rating at any time during the rating period on appeal. The Board notes that this finding does not signify the absence of a disability associated with the Veteran’s hearing loss. The Board is cognizant of the Veteran’s contentions concerning his difficulty in hearing. See Martinak v. Nicholson, 21 Vet. App. 447, 455-56 (2007). However, the assignment of disability ratings for hearing impairment is derived from a mechanical formula. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). In this case, the mechanical application does not yield a compensable disability rating for the Veteran’s level of hearing loss at any time during the appeals period. The Veteran argued that his audiological testing was conducted in a sound proof booth with ear muffs on which did not address his main problem of distinguishing speech in normal settings. The Court in Martinak upheld VA’s policy of requiring that hearing examinations be conducted in soundproof booths. Martinak v. Nicholson, 21 Vet. App. at 453-4. As in Martinak, the Veteran in this case has offered no expert medical opinion that testing in a soundproof booth produces inaccurate results; or that an alternate method exists to determine his audiological impairment and is use by the general medical community. Moreover, the Court recognized in Doucette v. Shulkin, 28 Vet. App. 366 (2017), that VA’s audiometric tests are specifically designed to measure the functional effects of decreased hearing and difficulty understanding speech in an everyday work environment; thus, the Veteran’s inability to hear or understand speech or to hear other sounds in various contexts have been sufficiently measured during the VA examination and such functional effects are contemplated by the schedular rating criteria. An extraschedular evaluation is not warranted. (Continued on the next page)   While the Board is sympathetic to the Veteran’s complaints, the Board finds that entitlement to an increased evaluation has not been demonstrated in the present case. It is clear from the Rating Schedule that a higher rating can be awarded only when loss of hearing has reached a specified measurable level, and the Veteran has not demonstrated such a significant functional loss as to justify an increased rating at this time. Accordingly, the Board finds that entitlement to a compensable disability rating for bilateral hearing loss is not warranted at this time. Since the preponderance of the evidence is against the claim, the provisions of 38 U.S.C. § 5107 (b) regarding reasonable doubt are not applicable. The claim of entitlement to a compensable evaluation for bilateral hearing loss must be denied. G. A. WASIK Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Ronquillo, Law Clerk