Citation Nr: 18154097
Decision Date: 11/29/18	Archive Date: 11/29/18

DOCKET NO. 16-24 048
DATE:	November 29, 2018
ORDER
Entitlement to a compensable rating for bilateral hearing loss is denied.

FINDING OF FACT
The Veteran’s service-connected bilateral hearing loss is manifested by no more than Level II hearing impairment in the right ear and no more than Level IV hearing impairment in the left ear.

CONCLUSION OF LAW
The criteria for a compensable rating for bilateral hearing loss have not been met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.85, 4.86, Diagnostic Code 6100 (2017).
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran served on active duty with the United States Army (Army) from March 1966 to January 1969. 
This matter comes before the Board of Veterans’ Appeals (Board) on appeal of an April 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California.
Neither the Veteran nor his representative has 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 Rating
Disability ratings are determined by application of the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; see generally 38 C.F.R. Part 4. When there is a question as to which of two ratings of a disability applies under a diagnostic code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating applies. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining about which rating to apply is resolved in favor of the veteran. 38 C.F.R. § 4.3.
The veteran’s entire history is to be considered during disability evaluations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  However, separate ratings may be assigned for separate periods of time based on the facts found. This practice is known as "staged" ratings.  Hart v. Mansfield, 21 Vet. App. 505 (2007). 
In evaluations of hearing loss, disability ratings are derived by a mechanical application of the ratings schedule to the numeric designations assigned after audiometric evaluations are rendered. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Hearing loss disability evaluations range from noncompensable (0 percent) to 100 percent based on organic impairment of hearing acuity. Audiological examinations used to measure impairment must be conducted by a state-licensed audiologist and must include both a controlled speech discrimination test (Maryland CNC) and a puretone audiometric test. 38 C.F.R. § 4.85(a).  
The rating schedule provides a table for rating purposes (Table VI) to determine a Roman numeral designation (I for essentially normal acuity through XI for profound deafness) for hearing impairment, 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. See 38 C.F.R. § 4.85, Diagnostic Code 6100.
Table VII is then used to determine the percentage evaluation by intersecting the roman numeral designations (from Table VI) for hearing impairment of each ear. The horizontal row represents the ear that has the better hearing. Id. Exceptional patterns of hearing impairment are evaluated under the provisions of 38 C.F.R. § 4.86. 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, depending on which table results in the higher numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86(a).
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 designations for hearing impairment from either Table VI or Table Via, depending on which results in the higher numeral. That numeral will then be elevated to the next higher Roman numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86(b).
When there is an approximate balance of positive and negative evidence on any issue material to the determination of a claim, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  For a claim to be denied on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996).

Entitlement to a compensable rating for bilateral hearing loss
The Veteran is assigned a noncompensable rating for his service-connected bilateral hearing loss.  The Veteran contends that his hearing is worse than contemplated by that rating.
The Veteran underwent a VA audiology examination in March 2012 for his claim for service connection. The audiological evaluation recorded puretone thresholds, in decibels, as follows:
 	 	 	HERTZ	 	 
 	1000	2000	3000	4000	AVG
RIGHT	25 	 30	50 	65 	43
LEFT	45	 50	65 	80 	60 


Speech discrimination scores were 84 percent in the right ear and 76 percent in the left ear. The March 2012 audiology examination findings, applied to Table VI, yield a numeric designation of Roman numeral II for the right ear on the basis of a 43 decibel puretone threshold average and 84 percent speech discrimination, and a numeric designation of Roman numeral IV for the left ear on the basis of a 60 decibel puretone threshold average and 76 percent speech discrimination. The numeric designation for the right ear, II, along with the numeric designation for the left ear, IV, entered into Table VII corresponds to a noncompensable (0 percent) rating for hearing impairment. Exceptional patterns of hearing impairment under 38 C.F.R. § 4.86 are not present.
The Veteran underwent a VA audiology examination in March 2013 for his claim for increase. The audiological evaluation recorded puretone thresholds, in decibels, as follows:								
  	 	 	HERTZ	 	 
 	1000	2000	3000	4000	AVG
RIGHT	25 	30 	 65	75 		49 
LEFT	25 	50 	 80	80 	 59
Speech discrimination scores were 94 percent in the right ear and 82 percent in the left ear. The March 2013 audiology examination findings, applied to Table VI, yield a numeric designation of Roman numeral I for the right ear on the basis of a 49 decibel puretone threshold average and 94 percent speech discrimination, and a numeric designation of Roman numeral IV for the left ear on the basis of a 59 decibel puretone threshold average and 82 percent speech discrimination. The numeric designation for the right ear, I, along with the numeric designation for the left ear, IV, entered into Table VII corresponds to a noncompensable (0 percent) rating for hearing impairment. Exceptional patterns of hearing impairment under 38 C.F.R. § 4.86 are not present.
To the extent that the Veteran contends that his hearing loss is more severe than currently evaluated, the Board observes that the Veteran, while competent to report symptoms such as difficulty understanding people in communication settings, he is not competent to report that his hearing acuity is of sufficient severity to warrant a compensable 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); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (reiterating that medical evidence was needed to support a claim for rheumatic heart disease).
Despite the foregoing, the Board acknowledges the Veteran's reports of difficulty understanding people in communication settings. Even after considering such contentions as to the effects of the disability on his daily life and occupation, the Board finds that the criteria for a compensable rating are not met. See Lendenmann, supra (assignment of disability ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered). Likewise, the Rating Schedule contemplates impairment under the ordinary conditions of daily life. 38 C.F.R. § 4.10. The functional effects caused by the Veteran's bilateral hearing loss were considered and addressed in the March 2012 and March 2013 VA examinations. See Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007).
While the Board is sympathetic to the Veteran's contention that he has difficulty hearing, the VA rating criteria are definitive and provide for a precise result based on audiometric test results. His subjective report of difficulty hearing cannot be the basis for an evaluative rating. The Board is bound to apply the VA rating schedule, under which the rating criteria are defined by audiometric test findings involving hearing acuity in a controlled laboratory environment, and the functional impact he describes is contemplated by the rating criteria. See Doucette v. Shulkin, 28 Vet. App. 366 (2017).
The Veteran argued in his April 2014 Notice of Disagreement that his VA hearing examinations, and therefore the data from them used to rate his hearing disability under Diagnostic Code 6100, did not accurately capture his hearing disability accurately because the audiometry tests were administered under clinical, “perfect” conditions, ones free of the “background noise” and “distractions” of the kind encountered in daily life. The Court rejected such an argument in Doucette v. Shulkin, 28 Vet. App. 366 (2017).  In Doucette, Id., the Court found that "the rating criteria for hearing loss contemplate the functional effects of decreased hearing and difficulty understanding" and that "when a claimant's hearing loss results in an inability to hear or understand speech or to hear other sounds in various contexts, those effects are contemplated by the schedular rating criteria." Id.   These are the precise symptoms that the appellant in this case refers to, i.e., difficulty understanding speech and hearing various sounds in his personal life. As found by the Court in Doucette, these symptoms are contemplated by the schedular rating criteria and do not require extraschedular evaluation. Id.   While the Veteran indicated he had “periods of dizziness,” he clarified that they were “slight” and occurred when he was “getting up quick or standing fast.”  He did not check the same item on his March 2012 questionnaire. Nor has the Veteran or his Representative stated since he checked that item on the March 2013 questionnaire that the Veteran experiences any dizziness. Thus, the Board regards the response as an isolated statement by the Veteran that does not point to an element of his overall hearing disability picture.
Accordingly, the Board finds that entitlement to a compensable rating for bilateral hearing loss is not warranted. As the evidence of record preponderates against the claim, the benefit-of-the-doubt doctrine is not for application and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. at 57-58.


 
LESLEY A. REIN
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	A. Pitts,  Associate Counsel