Citation Nr: 18152465 Decision Date: 11/23/18 Archive Date: 11/23/18 DOCKET NO. 14-42 570 DATE: November 23, 2018 ORDER The appeal as to the claim of entitlement to an initial compensable evaluation for service-connected bilateral hearing loss prior to November 12, 2015, is denied. The appeal as to the claim of entitlement to an initial evaluation in excess of 10 percent for service-connected bilateral hearing loss from November 12, 2015, to January 19, 2018, is denied. The appeal as to the claim of entitlement to an initial evaluation of 30 percent, but no more, for service-connected bilateral hearing loss since January 19, 2018, is granted. FINDINGS OF FACT 1. Prior to November 12, 2015, the Veteran’s hearing impairment has been no worse than Level I in the right ear and I in the left ear. 2. From November 12, 2015, to January 19, 2018, the Veteran’s hearing impairment has been no worse than Level IV in the right ear and IV in the left ear. 3. Since January 19, 2018, the Veteran’s hearing impairment has been no worse than Level VI in the right ear and VI in the left ear. CONCLUSIONS OF LAW 1. The criteria for establishing an initial compensable evaluation for service-connected bilateral hearing loss prior to November 12, 2015, have not been met. 38 U.S.C. § 1155 (West 2012); 38 C.F.R. § 4.85, Diagnostic Code 6100 (2018). 2. The criteria for establishing an initial evaluation in excess of 10 percent for service-connected bilateral hearing from November 12, 2015, to January 19, 2018, have not been met. 38 U.S.C. § 1155 (West 2012); 38 C.F.R. § 4.85, Diagnostic Code 6100 (2018). 3. The criteria for establishing an initial evaluation of 30 percent, but no more, for service-connected bilateral hearing since January 19, 2018, have been met. 38 U.S.C. § 1155 (West 2012); 38 C.F.R. § 4.85, Diagnostic Code 6100 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the United States Marine Corps from March 1965 to March 1969. His service was under honorable conditions. Among other commendations, the Veteran received the Vietnam Service Medal (VSM) and the Vietnam Campaign Medal (VCM). This matter is on appeal from a May 2014 rating decision. In a November 2015 rating decision, the evaluation for the service-connected bilateral hearing loss disability was increased from noncompensable to 10 percent disabling, effective November 12, 2015. Increased Rating – Legal Criteria Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2018). 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 their residual conditions in civil occupations. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.321 (a), 4.1 (2018). 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In accordance with 38 C.F.R. §§ 4.1, 4.2 (2018) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the service-connected disabilities at issue. The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes. Moreover, the Board is of the opinion that this case presents no evidentiary considerations which would warrant an exposition of remote clinical histories and findings pertaining to the disability. In both initial rating claims and normal increased rating claims, the Board must discuss whether "staged ratings" are warranted, and if not, why not. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Entitlement to an initial compensable evaluation for service-connected bilateral hearing loss prior to November 12, 2015, and in excess of 10 percent since November 12, 2015. The Veteran contends that his service-connected bilateral hearing loss disability has increased in severity. Specifically, he asserts that because he must wear hearing aids, he is more disabled than his current rating reflects. Disability ratings for hearing loss disability are derived from mechanical application of the rating schedule to the numeric designations resulting from audiometric testing. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). The rating schedule establishes 11 auditory hearing acuity levels based upon average puretone thresholds and speech discrimination. 38 C.F.R. § 4.85. 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 puretone audiometry test. Examinations will be conducted without the use of hearing aids. See Id. 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 puretone 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). 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 puretone 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). "Puretone threshold average" as used in Tables VI and VIa is the sum of the puretone thresholds at 1000, 2000, 3000 and 4000 Hertz and divided by four. This average is used in all cases (including those of § 4.86) to determine a Roman numeral designation from Tables VI and VIa. 38 C.F.R. § 4.85(d). 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 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). Provisions for evaluating exceptional patterns of hearing impairment are as follows: (a) When the puretone thresholds at each of the four specified frequencies (1000, 2000, 3000 and 4000 Hertz) is 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 puretone 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 Veteran underwent a VA audiometric examination in March 2014. The Veteran’s puretone thresholds were as follows: HERTZ 1000 2000 3000 4000 RIGHT 35 45 60 65 LEFT 25 50 50 50 The puretone average for his right ear was 50. The puretone average for his left ear was 45. Speech recognition was 98 percent for his right ear and 98 percent for the left ear. The examiner diagnosed bilateral sensorineural hearing loss. Applying the values above to Table VI results in a Level I Roman numeral designation for the right ear and a Level I Roman numeral designation for the left ear. Application of Level I and Level I designations to Table VII results in a noncompensable evaluation. Neither ear demonstrates an exceptional pattern of hearing impairment under the provisions of 38 C.F.R. §§ 4.86(a) or 4.86(b). The examiner noted that the Veteran’s current bilateral hearing loss disability did impact ordinary conditions of daily life, to include the Veteran’s inability to understand speech in environments with background noise present. The Veteran underwent a VA audiometric examination in November 2015. On examination, the Veteran’s puretone thresholds were as follows: HERTZ 1000 2000 3000 4000 RIGHT 45 60 60 60 LEFT 40 55 65 65 The puretone average for his right ear was 56. The puretone average for his left ear was 56. Speech recognition was 82 percent for his right ear and 78 percent for the left ear. The examiner diagnosed bilateral sensorineural hearing loss. Applying the values above to Table VI results in a Level IV Roman numeral designation for the right ear and a Level IV Roman numeral designation for the left ear. Application of Level IV and Level IV designations to Table VII results in a 10 percent disability evaluation. Neither ear demonstrates an exceptional pattern of hearing impairment under the provisions of 38 C.F.R. §§ 4.86(a) or 4.86(b). The examiner noted that the Veteran’s current bilateral hearing loss disability did impact ordinary conditions of daily life, to include the Veteran’s inability to hear the television. The Veteran underwent a VA audiometric examination in January 2018. On examination, the Veteran’s puretone thresholds were as follows: HERTZ 1000 2000 3000 4000 RIGHT 55 60 65 65 LEFT 45 65 65 65 The puretone average for his right ear was 61. The puretone average for his left ear was 60. Speech recognition was 60 percent for his right ear and 64 percent for the left ear. The examiner diagnosed bilateral sensorineural hearing loss. Applying the values above to Table VI results in a Level VI Roman numeral designation for the right ear and a Level VI Roman numeral designation for the left ear. Application of Level VI and Level VI designations to Table VII results in a 30 percent disability evaluation. The right ear demonstrates an exceptional pattern of hearing impairment under the provisions of 38 C.F.R. §§ 4.86(a). Applying the right ear puretone threshold average (61) to Table VIA results in a Level IV Roman numeral designation for the right ear. Application of Level IV and Level VI designations to Table VII only results in a 20 percent disability evaluation; thus, applying Table VI is more advantageous to the Veteran. The examiner noted that the Veteran’s current bilateral hearing loss disability did impact ordinary conditions of daily life, to include the Veteran’s inability understand speech clearly. Upon review of the evidence of record, it is evident the criteria for an initial compensable evaluation prior to November 12, 2015, under Diagnostic Code 6100 are not met. Although the report of the March 2014 audiological evaluation clearly shows the Veteran had hearing loss, it did not show sufficient hearing impairment to warrant a compensable evaluation and there is no other evidence showing sufficient hearing impairment to warrant an initial compensable evaluation prior to November 12, 2015. From November 12, 2015, to January 19, 2018, the evidence of record, namely, the November 2015 audiological evaluation shows hearing loss sufficient to warrant an initial 10 percent evaluation, but no more. Finally, since January 19, 2018, the evidence of record demonstrates hearing loss sufficient to warrant an initial 30 percent evaluation, but no more. The Court has held that, "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). In this regard, the March 2014 VA examiner noted that the Veteran's bilateral hearing loss impacted ordinary conditions of daily life, to include his ability to understand speech clearly with the presence of background noise. Likewise, the November 2015 VA examiner noted that the Veteran’s bilateral hearing loss impacted ordinary conditions of daily life, to include difficulty hearing the television. Similarly, the January 2018 VA examiner noted that the Veteran's bilateral hearing loss impacted ordinary conditions of daily life, to include his ability to understand speech clearly. A layperson is competent to testify regarding the onset and continuity of symptomatology. Heuer v. Brown, 7 Vet. App. 379, 384 (1995). However, the rating schedule for hearing loss is a reasonable exercise of the Secretary's rulemaking authority. Martinak, 21 Vet. App. 447. Whereas the Veteran's hearing loss has not been shown by medical or lay evidence to be worse than that measured during audiological evaluation. Accordingly, an initial compensable evaluation for service-connected bilateral hearing loss prior to November 12, 2015, in excess of 10 percent from November 12, 2015, to January 19, 2018, and in excess of 30 percent since January 19, 2018, is not warranted. The Board has considered the doctrine of reasonable doubt, but has determined that it is not applicable because the preponderance of the evidence is against the claim. Gilbert, 1 Vet. App. 49, 54. Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Sara Schinnerer, Counsel