Citation Nr: 18150316 Decision Date: 11/15/18 Archive Date: 11/14/18 DOCKET NO. 16-39 694 DATE: November 15, 2018 ORDER Entitlement to an initial compensable rating for bilateral hearing loss is denied. FINDING OF FACT The Veteran’s bilateral hearing loss is manifested by no greater than Level I hearing loss in the right ear and Level I hearing loss 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 (2012); 38 C.F.R. § 4.1, 4.3, 4.7, 4.85, Diagnostic Code 6100 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Navy from August 1970 to May 1974. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a February 2016 rating decision by the Regional Office (RO) of the United States Department of Veterans Affairs (VA). Duty to Notify and Assist VA has a duty to notify and assist Veterans in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2017). Neither the Veteran nor his representative have raised any 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 duty to assist argument). Increased Schedular Rating Disability evaluations are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). In this case, the Board finds that based on the evidence, further staged increased ratings are not warranted. The Veteran contends he is entitled to an initial compensable rating for his service-connected bilateral hearing loss. 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 speech discrimination test (Maryland CNC) together with the average hearing threshold level measured by puretone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hertz). To evaluate the degree of disability from service-connected defective hearing, the rating schedule establishes eleven 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, VIa and VII, Diagnostic Code 6100 (2017). 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). Hearing tests will be conducted without hearing aids, and the results of above-described testing are charted on Table VI and Table VII. See 38 C.F.R. § 4.85. Additionally, under 38 C.F.R. § 4.85(c), Table VIA will be used when the examiner certifies that use of speech discrimination is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc., or when indicated under the provisions of § 4.86. Here, however, the Veteran’s hearing loss does not qualify as “exceptional,” for purposes of the application of Table VIA, and thus neither 38 C.F.R. § 4.85(c), Table VIA, nor 38 C.F.R. § 4.86 will be further discussed. In addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in his or her final report. Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007); 38 C.F.R. § 4.85. After review of the record, the Board finds that an initial compensable rating is not warranted for the Veteran’s bilateral hearing loss. The record reflects the Veteran was afforded a VA audiological examination in February 2016. The pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 30 35 60 70 48.75 LEFT 35 35 70 80 55 Maryland CNC speech audiometry revealed speech recognition ability of 94 percent in the right ear and 98 percent in the left ear. Applying the results from that examination to Table VI in 38 C.F.R. § 4.85 yields a finding of Level I hearing loss in the right ear and Level I hearing loss in the left ear. When hearing loss is at Level I in the better ear and Level I in the poorer ear, a 0 percent rating is assigned under Table VII. The VA examiner opined that the Veteran’s bilateral hearing loss impacts ordinary conditions of daily life, including the ability to work. The VA examiner referenced the Veteran’s reports of difficulty understanding speech on the telephone. The Board has considered the Veteran’s contentions. In an August 2016 VA Form 9, the Veteran reported that he has to turn the volume to “high” on his television. He further noted that most of the time, he is unable to hear his wife, and that she is embarrassed when he speaks too loudly. However, it must be emphasized that the assignment of a schedular disability rating for hearing impairment is derived by a mechanical application of the rating schedule to the numeric designation assigned after valid audiometry results are obtained. Hence, the Board must predicate its determination on the basis of the results of the audiology studies of record. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). The VA examiner reported the effects of the Veteran’s hearing loss on his daily activities and occupational functioning. Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). However, such factors were considered in the calculation and formation of the rating schedule criteria. See 59 Fed. Reg. 17295 (April 12, 1994). Therefore, the Veteran’s symptomatology most closely approximates the criteria for a noncompensable disability evaluation for bilateral hearing loss. 38 C.F.R. §§ 4.3, 4.7. For all the foregoing reasons, the preponderance of the evidence is against a compensable disability evaluation for this disability. Hart v. Mansfield, 21 Vet. App. 505 (2007). As such, the benefit-of-the-doubt doctrine is inapplicable. 38 C.F.R. § 4.3. MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD G. A. Ong, Associate Counsel