Citation Nr: 18151658 Decision Date: 11/19/18 Archive Date: 11/19/18 DOCKET NO. 11-32 332 DATE: November 19, 2018 ORDER Entitlement to an increased rating in excess of 20 percent disabling for bilateral hearing loss, including on an extraschedular basis, is denied. FINDING OF FACT For the entire time on appeal, the Veteran’s hearing loss was manifested by Level V hearing in the right ear and Level VI hearing in the left ear. CONCLUSION OF LAW The criteria for a rating in excess of 20 percent disabling for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from August 1962 to August 1966. This appeal comes to the Board of Veterans’ Appeals (Board) from a November 2009 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In November 2011, the Veteran requested a hearing at a local office. This request was later withdrawn. In April 2017 and February 2018 Board decisions, the Board remanded the case for further development. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. 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. 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. In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Consideration of the whole recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where an increase in the disability rating is at issue, the present level of the veteran’s disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the weight of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Entitlement to an increased rating in excess of 20 percent disabling for bilateral hearing loss The Veteran asserts entitlement to an increased rating for his service bilateral hearing loss. An examination for hearing impairment for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a pure tone audiometry test. Examinations will be conducted without the use of hearing aids. 38 C.F.R. § 4.85 (a) (2017). Table VI, “Numeric Designation of Hearing Impairment Based on Puretone Threshold Average and Speech Discrimination,” is used to determine a Roman numeral designation (I through XI) for hearing impairment based on a combination of the percent of speech discrimination (horizontal rows) and the pure tone threshold average (vertical columns). The Roman numeral designation is located at the point where the row and column intersect. 38 C.F.R. § 4.85 (b) (2017). Table VIa, “Numeric Designation of Hearing Impairment Based Only on Puretone Threshold Average,” is used to determine a Roman numeral designation (I through XI) for hearing impairment based only on pure tone threshold average. Table VIa is used when the examiner certifies that the use of the speech discrimination test is not appropriate due to language difficulties, inconsistent speech discrimination scores, etc., or when indicated under the provisions of § 4.86. 38 C.F.R. § 4.85 (c) (2017). “Pure-tone threshold average” as used in Tables VI and VIa is the sum of the pure tone thresholds at 1000, 2000, 3000 and 4000 Hertz and divided by four. This average is used in all cases (including those under § 4.86) to determine a Roman numeral designation from Tables VI and VIa. 38 C.F.R. § 4.85 (d) (2017). Table VII, “Percentage Evaluations of Hearing Impairment,” is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment in each ear. The horizontal rows represent the ear having the better hearing and the vertical columns represent the ear having the poorer hearing. The percentage evaluation is located at the point where the row and the column intersect. 38 C.F.R. § 4.85 (e) (2017). Provisions for evaluating exceptional patterns of hearing impairment are as follows: (a) When the pure-tone thresholds at each of the four specified frequencies (1000, 2000, 3000 and 4000 Hertz) are 55 decibels 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. Each ear will be evaluated separately; (b) When the pure-tone thresholds are 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; the numeral will then be elevated to the next higher Roman numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86. The record shows the Veteran underwent audiological testing in June 2009. On examination, pure-tone thresholds were as follows: HERTZ 1000 2000 3000 4000 RIGHT 10 45 60 60 LEFT 15 60 65 80 Speech audiometry revealed speech recognition ability of 84 percent in the right ear and of 84 percent in the left ear. On the numbers shown above, his pure tone threshold average for the right ear was 43.75 decibels and his pure tone threshold average for the left ear was 55 decibels. No exceptional pattern of hearing loss was shown. Applying 38 C.F.R. § 4.85, Table VI to the June 2009 audiological findings, his right ear hearing loss results in Level II hearing acuity, and his left ear hearing loss is assigned Level II hearing acuity. Applying the criteria from Table VI to Table VII, a noncompensable rating is derived. A December 2011 private audiological evaluation found pure tone thresholds to be the following, in decibels: HERTZ 1000 2000 3000 4000 RIGHT 20 65 75 75 LEFT 25 75 80 80 Speech audiometry using the Maryland CNC word list revealed speech recognition ability of 80 percent in the right ear and of 72 percent in the left ear. On the numbers shown above, his pure tone threshold average for the right ear was 58.75 decibels and his pure tone threshold average for the left ear was 65 decibels. Applying 38 C.F.R. § 4.85, Table VI to the December 2011 audiological findings, his right ear hearing loss results in Level IV hearing acuity, and his left ear hearing loss is assigned Level V hearing acuity. Applying the criteria from Table VI to Table VII, a 10 percent rating is derived. An exceptional pattern of hearing loss was present at the December 2011 examination for left ear because the pure tone threshold at 1000 Hertz was 30 decibels or less and the threshold at 2000 Hertz was 70 decibels or more. See 38 C.F.R. § 4.86(a). Other patterns of exceptional hearing loss are not indicated. See 38 C.F.R. § 4.86(b). Therefore, Table VIA will be used for left ear. When applying the pure tone averages and speech recognition scores from the December 2011 examination are applied to Table VI, the right ear is assigned a Level IV and the left ear is assigned a Level III. The Board then applies those levels to Table V, which results in a 10 percent rating for the Veteran’s bilateral hearing loss. On the audiological evaluation in May 2016, pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 10 60 60 75 LEFT 25 65 70 80 Speech audiometry revealed speech recognition ability of 68 percent in the right ear and of 64 percent in the left ear. On the numbers shown above, his pure tone threshold average for the right ear was 51.25 decibels and his pure tone threshold average for the left ear was 60 decibels. No exceptional pattern of hearing loss was shown. Applying 38 C.F.R. § 4.85, Table VI to the May 2016 audiological findings, his right ear hearing loss results in Level V hearing acuity, and his left ear hearing loss is assigned Level VI hearing acuity. Applying the criteria from Table VI to Table VII, a 20 percent rating is derived. Although lay evidence from the Veteran regarding his symptoms is competent and credible, the evaluation of hearing loss is reached by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered. Lendenmann, 3 Vet. App. 345. The requirements of 38 C.F.R. § 4.85 set out the percentage ratings for exact numerical levels of impairment required for an evaluation of hearing loss, which requires specific testing. In this case, such mechanical application does not warrant a compensable rating. To the extent that the Veteran contends that his hearing loss is more severe than currently shown on examination, the Board observes that the Veteran, while competent to report his observable symptoms, he is not competent to report that his hearing acuity is of sufficient severity to warrant a higher rating 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. 2007); Buchanan v. Nicholson, 451 F.3d 1331(Fed. Cir. 2006); Charles v. Principi, 16 Vet. App. 370 (2002). Despite the foregoing, the Board acknowledges the Veteran’s reports of difficulty hearing in most situations without hearing aids and sometimes in situations with hearing aids. Even after considering such contentions as to the effects of the disability on his daily life, the Board finds that the criteria for a higher rating are not met. See Lendenmann, supra. The Rating Schedule contemplates such impairment under the ordinary conditions of daily life. 38 C.F.R. § 4.10; see also Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). In reaching its decision, the Board has duly considered the benefit-of-the-doubt doctrine. However, the Board has determined a preponderance of the evidence weighs against the Veteran’s claim. Accordingly, the doctrine is inapplicable and the claim must be denied. KRISTY L. ZADORA Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD O. Owolabi, Law Clerk