Citation Nr: 18154243 Decision Date: 11/29/18 Archive Date: 11/29/18 DOCKET NO. 15-27 444A DATE: November 29, 2018 ORDER Entitlement to an initial compensable evaluation for a bilateral hearing loss disability is denied. FINDING OF FACT Throughout the pendency of the instant appeal, the Veteran had, at worst, Level II hearing loss in both the right and left ears. CONCLUSION OF LAW The criteria for entitlement to an initial compensable evaluation for a bilateral hearing loss disability have not been met or approximated at any time relevant to the appeal period. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.21, 4.85, Diagnostic Code 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from November 1992 to November 1997, November 2001 to October 2002, September 2005 to October 2005, and January 2008 to October 2008. This appeal comes to the Board of Veterans’ Appeals (Board) from a rating decision, dated October 2012, issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama (hereinafter Agency of Original Jurisdiction (AOJ)). In its decision, the RO denied initial compensation for his bilateral hearing loss disability. The Veteran timely appealed the evaluation assigned. In the October 2012 rating decision, the AOJ denied the Veteran’s claim for entitlement to initial compensable evaluation for bilateral hearing loss disability because higher evaluations of compensation are based on more severe levels of hearing impairment. A video conference hearing was scheduled for October 2018. However, as the Veteran did not attend the hearing, the Board will proceed with its decision. Entitlement to an initial compensation evaluation for bilateral hearing loss disability. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), found in 38 C.F.R. § 4.1. The Rating Schedule is primarily a guide in the evaluation of disabilities resulting from all types of diseases and injuries encountered as a result of, or incident to, military service. Separate diagnostic codes identify the various disabilities and each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition. 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. § 4.10. As such, each disability must be considered from the point of view of the Veteran working or seeking work. 38 C.F.R. § 4.2. When there is a question as to which evaluation should be applied to a Veteran’s disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. 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. 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). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the Veteran’s medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999). Where, as here, the question for consideration is the propriety of the initial evaluation assigned, the relevant time period for consideration begins on the date that the claim for service connection was filed. Moore v. Nicholson, 21 Vet. App. 211, 216-17 (2007). In the instant appeal, that date is July 2012. Moreover, the Board acknowledges that a Veteran may experience multiple distinct degrees of disability that might result in different levels of compensation. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). The following analysis is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. In evaluating service-connected hearing loss, disability ratings are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are performed. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992); 38 C.F.R. § 4.85. Evaluations of bilateral defective hearing range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests, together with the average hearing threshold level as measured by pure tone audiometric tests at the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hertz). To evaluate the degree of disability from bilateral defective hearing, the rating schedule establishes 11 auditory acuity levels designated from Level I, for essentially normal acuity, through Level XI, for profound deafness. Id. When the pure tone 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 VI(a), whichever results in the higher numeral. Each ear will be evaluated separately. See 38 C.F.R. § 4.86(a). Similarly, if the puretone threshold is 30 decibels or less at 1000 Hz, and 70 decibels or more at 2000 Hz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VI(a), whichever results in the higher numeral, and that numeral will be elevated to the next higher Roman numeral. Table VI(a), “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 the pure tone threshold average. Table VI(a) will be used when the examiner certifies that use of the speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc., or when indicated under the provisions of Section 4.86, described in the preceding paragraph. 38 C.F.R. § 4.85(c). Lastly, the Board must also assess the competence and credibility of lay statements and testimony. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). In increased rating claims, a Veteran’s lay statements alone, absent a negative credibility determination, may constitute competent evidence of worsening, at least with respect to observable symptoms. See Vazquez-Flores v. Shinseki, 24 Vet. App. 94, 102 (2010). That being the relevant law to the Veteran’s current claim, the Board finds, that at no time during the pendency of his appeal has the Veteran’s bilateral hearing loss disability warranted the assignment of a compensable evaluation. The Veteran was provided an audiological evaluation in September 2012, which showed puretone thresholds, in decibels, as follows: HERTZ 1000 2000 3000 4000 AVG RIGHT 10 20 45 45 30 LEFT 10 20 35 65 32.5 The VA examiner additionally administered the Maryland CNC word list pursuant to VA regulations. See 38 C.F.R. § 3.485. The Veteran attained 92 percent in the right ear and of 90 percent in the left ear. These audiometric findings equate to Level I hearing loss in the right ear, and Level I hearing loss in the left ear, which results in a non-compensable rating. 38 C.F.R. § 4.85, Table VI. In July 2016, the Veteran underwent a second audiological evaluation, which showed puretone thresholds, in decibels, as follows: HERTZ 1000 2000 3000 4000 AVG RIGHT 15 25 55 55 38 LEFT 15 25 50 70 40 The VA examiner additionally administered the Maryland CNC word list pursuant to VA regulations. See 38 C.F.R. § 3.485. The Veteran attained 88 percent in the right ear, and 88 percent in the left ear. These audiometric findings equate to Level II hearing loss in the right ear, and Level II hearing loss in the left ear, which results in a non-compensable rating. 38 C.F.R. § 4.85, Table VI.   The Veteran was provided another audiological evaluation in August 2017, which showed puretone thresholds, in decibels, as follows: HERTZ 1000 2000 3000 4000 AVG RIGHT 15 35 50 55 39 LEFT 15 35 40 65 38 The VA examiner additionally administered the Maryland CNC word list pursuant to VA regulations. See 38 C.F.R. § 3.485. The Veteran attained a 96 percent score in the right ear, and a 92 percent score in the left ear. These audiometric findings equate to Level I hearing loss in the right ear, and Level I hearing loss in the left ear, which results in a non-compensable rating. 38 C.F.R. § 4.85, Table VI. As such, a review of the audiological examinations of record does not support the assignment of an initial compensable evaluation for the Veteran’s bilateral hearing loss disability. In reaching this determination, the Board has additionally considered the provisions 38 C.F.R. § 4.86, regarding exceptional patterns of hearing impairment. However, the audiological testing of record does not show that the Veteran has puretone thresholds of 55 decibels or more at each of the frequencies of 1,000, 2,000, 3,000 and 4,000 hertz or a puretone threshold of 30 decibels or less at 1,000 hertz and 70 decibels or more at 2,000 hertz. Consequently, the evidence does not support an initial compensable disability rating for the Veteran’s bilateral hearing loss. 38 C.F.R. § 4.3. Finally, the Board has considered the Veteran’s lay reports of symptoms. With regard to an actual diagnosis of bilateral hearing loss, lay persons are not categorically incompetent to speak on matters of medical diagnosis or etiology. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). The Board must consider the type of condition specifically claimed and whether it is readily amenable to lay diagnosis or probative comment on etiology. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). The Board acknowledges the Veteran is competent to report hearing loss symptoms both during and after service. See 38 C.F.R. § 3.159(a)(2); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); (discussing that Veteran is competent to report a contemporaneous medical diagnosis). That is, lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson, 581 F.3d at 1316. See also Jandreau, 492 F.3d at 1376-77. While the Veteran is competent as a lay person to report certain symptoms, his reports of hearing loss and similar symptoms, he is not competent to assign puretone threshold findings or speech recognition scores to his perceived hearing impairment. In this regard, the Board places greater probative weight on the audiometric findings recording in the various examinations during the course of the appeal. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). Finally, to the extent that the Veteran may be challenging the validity of the VA examination reports above, the Board finds no indication that the examinations are inadequate for rating purposes to rebut the presumption of regularity. See Rizzo v. Shinseki, 580 F.3d 1288, 1292 (Fed. Cir. 2008). Here, the examinations are performed by appropriate audiological professionals. All test results and observations are reported in detail and include consideration of functional limitations. 38 C.F.R. § 3.159 (c)(4); Martinak v. Nicholson, 21 Vet. App. 447, 455-56 (2007). For example, during the September 2012 examination, the Veteran described the effects of his hearing loss disability on his daily activities. Specifically, he reported difficulty understanding what others said, having to have others constantly repeat themselves, and trouble hearing the radio. Likewise, during the July 2016 examination, the Veteran reported that his hearing loss resulted in difficulty hearing in crowds, difficulty hearing the television at normal volume, and difficulty hearing people unless he was looking at them. Further, his hearing loss disability caused concern at work when he had to remove a “communication earpiece” to hear people talking directly to him. During his July 2017 examination, the Veteran again reported difficulty hearing people unless he looked at them and difficulty understanding his kids and hearing the television. The types of limitations reported by the Veteran such as difficulty hearing others and televisions and radios are contemplated by the audiometric testing that measures auditory acuity and speech recognition. The Veteran has not described, nor does the evidence show, any functional limitation resulting from the Veteran’s hearings loss disability that is not reflected in the audiometric testing performed during the course of the appeal. Based on the reported descriptions of the functional effects of the Veteran’s hearing loss disability, the Board finds that the examination reports are in compliance with Martinak, and that the evidence of record is sufficient for the Board to consider whether referral for an extraschedular rating is warranted under 38 C.F.R. § 3.321 (b). Here, the Board finds the most probative evidence as to the functional impairment resulting from this disability to be the conclusions of the qualified VA examiners. The Board believes that the rating criteria reasonably describe the Veteran’s disability level and symptomatology pertaining to his service-connected hearing loss of the left ear. To the extent that the Veteran may experience some difficulties communicating with others as a result of his hearing disability in the left ear, the ratings schedule contemplates these impairments. For these reasons, the disability picture is contemplated by the Rating Schedule, and the assigned schedular ratings are, therefore, adequate. Consequently, referral for extraschedular consideration is not required under 38 C.F.R. § 3.321 (b)(1). Although the Veteran is entitled to the benefit of the doubt where the evidence is in approximate balance, the benefit of the doubt doctrine is inapplicable where, as here, the preponderance of the evidence is against the claim for entitlement to an   initial compensable evaluation for bilateral hearing loss. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Kathryn Bristor