Citation Nr: 18152725 Decision Date: 11/26/18 Archive Date: 11/23/18 DOCKET NO. 18-40 340 DATE: November 26, 2018 ORDER Entitlement to an initial compensable rating for bilateral hearing loss prior to July 11, 2017, is denied. FINDING OF FACT Prior to July 11, 2017, the Veteran demonstrated, at worst, level I hearing acuity in his bilateral ears. CONCLUSION OF LAW The criteria for a compensable initial rating for bilateral hearing loss prior to July 11, 2017, have not been met. 38 U.S.C. §§ 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.3, 4.7, 4.85, Diagnostic Code (DC) 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1959 to January 1962. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a December 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran timely appealed his initial rating. 1. Entitlement to a compensable initial rating for bilateral hearing loss prior to July 11, 2017 The Veteran is currently service-connected for bilateral hearing loss, rated as noncompensable from June 6, 2011, and 10 percent from July 11, 2017. He contends that his hearing loss warrants a 10 percent initial rating from June 6, 2011. The RO characterized the issue as entitlement to an earlier effective date of June 6, 2011, for the 10 percent evaluation assigned for bilateral hearing loss. The issue before the Board can also be characterized, as here, as entitlement to an initial compensable rating for bilateral hearing loss prior to July 11, 2017. The Board notes that the grant of any compensation benefit necessarily includes implementation of an award and the selection of an effective date, since no award is granted in a legal vacuum. Here, the Board has phrased the issue as entitlement to an initial compensable rating for bilateral hearing loss prior to July 11, 2017 because, in essence, the RO has granted a staged rating and part of the appeal has been satisfied by the grant of the 10 percent rating from July 11, 2017. Disability evaluations are determined by the application of VA’s Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations 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. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. The Veteran’s entire history is reviewed when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where the question for consideration is the propriety of the initial evaluation assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of a “staged rating” (assignment of different ratings for distinct periods of time, based on the facts found) is required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Hearing loss is evaluated under 38 C.F.R. §§ 4.85, 4.86, DC 6100, Tables VI, VIA, and VII of VA’s rating schedule. The Rating Schedule provides a table for rating purposes (Table VI) to determine a Roman numeral designation (I through XI) for hearing impairment, established by a state-licensed audiologist, including a controlled speech discrimination test (Maryland CNC), and based upon a combination of the percent of speech discrimination and the puretone threshold average, which is the sum of the puretone thresholds at 1000, 2000, 3000, and 4000 Hertz divided by four. 38 C.F.R. § 4.85. Table VII is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment of each ear. The horizontal row represents the ear having the poorer hearing and the vertical column represents the ear having the better hearing. Id. If impaired hearing is service-connected in only one ear, the nonservice-connected ear is a Roman numeral designation of I. 38 C.F.R. § 4.85(f). There are certain exceptional patterns of hearing impairment. When the puretone threshold 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. 38 C.F.R. § 4.86(a) (2017). When the puretone threshold is 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. That numeral will then be elevated to the next higher Roman numeral. 38 C.F.R. § 4.86(b). In the present case, the Veteran contends that he should receive a compensable rating for his bilateral hearing loss prior to July 11, 2017. A September 2011 VA examination report reflects pure tone thresholds as follows: HERTZ 1000 Hz 2000 Hz 3000 Hz 4000 Hz Avg Hz RIGHT 30 40 40 50 40 LEFT 40 45 60 75 55 Speech audiometry revealed speech recognition ability of 94 percent bilaterally. In addition, the Veteran reported that it was difficult to understand what was being said when there was other noise, although he could still hear people talking. Based on those results with the utilization of Table VI, the Veteran demonstrated Level I hearing impairment in both ears. 38 C.F.R. § 4.85(f). Applying the results to Table VII, a noncompensable disability rating is warranted for bilateral hearing loss. See 38 C.F.R. § 4.85, DC 6100. An May 2015 VA audiological evaluation report reflects pure tone thresholds as follows: HERTZ 1000 Hz 2000 Hz 3000 Hz 4000 Hz Avg Hz RIGHT 55 55 55 65 57.5 LEFT 55 55 65 70 61.25 Speech audiometry revealed speech recognition ability of 92 percent in the right ear and 96 percent in the left ear. However, the speech audiometry test was not conducted using the Maryland CNC. Under 38 C.F.R. § 4.85(a), an examination for “hearing impairment for VA purposes must include a controlled speech discrimination test (Maryland CNC).” A footnote to Table VIA for hearing impairment based only on puretone threshold average indicates that Table VIA is for use only as specified under 38 C.F.R. § 4.85. As the May 2015 VA audiological evaluation does not conform to the requirements under 38 C.F.R. § 4.85, the evaluation cannot be used to determine the Veteran’s rating. The Board notes that the September 2011 VA audiological examination report noted above describes the effects of the Veteran’s hearing impairments on his daily life, consistent with the requirements of Martinak v. Nicholson, 21 Vet. App. 447 (2007). In addition, the Veteran contends that his current bilateral hearing loss presented a compensable rating from June 6, 2011, the date of claim, because he had always been told that his hearing was the same or worse since that time. As a general matter, the Veteran is correct that effective dates should not be assigned based only on medical evidence as to how severe the disability was at a particular time. Swain v. McDonald, 27 Vet. App. 219, 224 (2015) (“effective date should not be assigned mechanically based on the date of a diagnosis. Rather, all of the facts should be examined to determine the date that [the veteran’s disability] first manifested”). However, ratings for hearing loss are an exception to this general rule. As noted above, the assigned rating for hearing loss is determined by mechanically applying the rating criteria to certified test results. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). While the Board acknowledges the Veteran’s hearing difficulties, the rating criteria dictates a noncompensable disability rating based on the audiometric test results specifically required by the applicable regulation. As the September 2011 audiometric and speech recognition scores resulted in a noncompensable rating for bilateral hearing loss, and the May 2015 VA evaluation cannot be used to determine the Veteran’s rating, a compensable rating is not warranted for bilateral hearing loss prior to July 11, 2017. This is the first date that the evidence shows that the Veteran met the criteria for a higher rating. In addition, the Veteran’s complaints of difficulty hearing individuals are manifestations of difficulty hearing or understanding speech, which are contemplated by the schedular criteria for hearing loss. Doucette v. Shulkin, 28 Vet. App. 366, 371-72 (2017) (difficulty in distinguishing sounds in a crowded environment, locating the source of sounds, understanding conversational speech, hearing the television, and using the telephone are each a manifestation of difficulty hearing or understanding speech, which are contemplated by the schedular rating criteria for hearing loss). Thus, remand for referral of the claim for extraschedular consideration is not warranted. Thun v. Peake, 22 Vet. App. 111 (2008), aff’d sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The Board has considered the Veteran’s claim and decided entitlement based on the evidence. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record, with respect to his claim. See Doucette, 28 Vet. App. at 369-70 (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD L. Leifert, Associate Counsel