Citation Nr: 18154249 Decision Date: 11/29/18 Archive Date: 11/29/18 DOCKET NO. 16-41 552 DATE: November 29, 2018 ORDER Entitlement to a compensable rating prior to March 20, 2015, a rating in excess of 30 percent prior to July 11, 2016, and in excess of 50 percent thereafter, is denied. FINDINGS OF FACT 1. Prior to March 20, 2015, the Veteran’s bilateral hearing loss has been manifested by no worse than Level II hearing impairment in both the right and left ear. 2. Prior to July 11, 2016, the Veteran’s bilateral hearing loss has been manifested by no worse than Level VI hearing impairment in the right ear and Level VII hearing impairment in the left ear. 3. From July 11, 2016, onwards, the Veteran’s bilateral hearing loss has been manifested by no worse than Level VIII hearing impairment for the right ear and Level XI hearing impairment for the left ear. CONCLUSION OF LAW The criteria for a compensable rating prior to March 20, 2015, a rating in excess of 30 percent prior to July 11, 2016, and in excess of 50 percent thereafter, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.85, 4.86a, Diagnostic Code 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1963 to August 1967. This matter comes before the Board of Veteran’s Appeals (Board) on appeal of an August 2014 rating decision by the Department of Veteran Affairs (VA). Increased Ratings Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. See 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. While the Board typically considers only those factors contained wholly in the rating criteria, it is appropriate to consider factors outside the specific rating criteria when appropriate in order to best determine the level of occupational and social impairment. See Mauerhan v. Principi, 16 Vet. App. 436 (2002); Massey v. Brown, 7 Vet. App. 204, 208 (1994). Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating. 38 C.F.R. § 4.7. When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, in cases where the Veteran’s claim arises from a disagreement with the initial evaluation following the grant of service connection, the Board shall consider the entire period of claim to see if the evidence warrants the assignment of different ratings for different periods of time during these claims a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119 (1999). 1. Entitlement to a compensable rating prior to March 20, 2015, a rating in excess of 30 percent prior to July 11, 2016, and in excess of 50 percent thereafter. Ratings for hearing loss, which range from noncompensable to 100 percent, are based on an organic impairment of hearing acuity as demonstrated by the results of speech discrimination tests together with the average hearing threshold levels as measured by pure tone audiometry tests in the frequencies of 1,000, 2,000, 3,000, and 4,000 Hertz (Hz). The degree of disability from service-connected hearing loss is rated based on 11 auditory acuity levels with Level I, representing essentially normal acuity, through Level XI, representing profound deafness. See 38 C.F.R. § 4.85. An alternative rating method may be used when the pure tone threshold at each of the four specified frequencies (1,000, 2,000, 3,000, and 4,000 Hertz) is 55 decibels or more, or when the pure tone threshold is 30 decibels or less at 1,000 Hz and 70 decibels or more at 2,000 Hz. 38 C.F.R. § 4.86 (2017). VA will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa based on whichever results in the higher numeral. Id. In hearing loss rating cases, an examination 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 are conducted without the use of hearing aids. 38 C.F.R. § 4.85(a). First Period: Prior to March 2015 The Veteran filed a claim for an increased rating for his bilateral hearing loss disability that was received by VA on June 3, 2014. Initially, the Board determines that a rating of 50 percent prior to July 11, 2016, is not warranted for the veteran’s bilateral hearing loss disability. At an audiological examination in August 2014, he reported that he experienced worse hearing, and that he had difficulty hearing the T.V. and his wife, even with hearing aids. On the authorized audiological evaluation, his pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 AVG RIGHT 45 55 65 65 58 LEFT 45 55 65 65 58 Speech audiometry revealed speech recognition ability of 92 percent bilaterally. An exceptional pattern of hearing loss was not shown. Applying these values Table VI, the Veteran exhibited Level II hearing impairment in both ears. Applying these results to Table VII, a noncompensable percent rating is for application. Second Period: March 2015 – July 2016 The Veteran underwent a private audiological examination in March 2015. He stated that he had problems communicating due to his hearing loss. On the authorized audiological evaluation, his pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 AVG RIGHT 55 60 65 70 63 LEFT 55 65 70 75 66 Speech audiometry revealed speech recognition ability of 60 percent in the right ear and 65 percent in the left ear. As all thresholds were 55 dB or greater, an exceptional pattern of hearing loss has been shown. Applying these values to Table VIa, the Veteran exhibits Level V hearing loss in the right ear and Level V in the left ear. When utilizing Table VI, the Veteran exhibited Level VI hearing impairment in the right ear and Level VII hearing impairment in the left ear. Applying these results from Table VI to Table VII, a 30 percent rating is for application. The Board acknowledges the Veteran’s desire for a 50 percent rating prior to July 11, 2016. However, there is no indication during this time period that the Veteran’s hearing worsened to a degree that would warrant a 50 percent rating. The Veteran underwent audiology examinations in 2014 and 2015, both of which do not demonstrate a basis to award a compensable rating prior to March 20, 2015 and prior to July 11, 2016, in excess of 30 percent. The Veteran has also not specifically explained why a higher rating is warranted during this time period. Third Period: July 2016 - Present Next, the Board examined whether the Veteran should receive a rating in excess of 50 percent from July 11, 2016, onwards. However, the Board determines that a higher rating is also not warranted during this time period. At a July 2016 VA audiological examination, the Veteran remarked his inability to hear without using hearing aids and indicated the difficulty that he has with communicating and understanding people. He also noted his difficulty hearing on the telephone even with his amplified phone and that he cannot hear any nature sounds outside. The Veteran noted challenges communicating to customers, which often requires help form his work colleagues. On the authorized audiological evaluation, his pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 AVG RIGHT 60 70 85 90 76 LEFT 65 70 90 90 78 Speech audiometry revealed speech recognition ability of 52 percent in the right ear and of 48 percent in the left ear. Again, an exceptional pattern of hearing loss has been shown. Applying these values to Table VIa, the Veteran exhibits Level VI hearing loss in the right ear and Level VII in the left ear. When utilizing Table VI, which is more advantageous in this case, the Veteran exhibited Level VIII hearing impairment in the right ear and Level XI hearing impairment in the left ear. Applying these results to Table VII, a 50 percent rating is for application. Therefore, based on the evidence of record, a rating in excess of 50 percent for bilateral hearing loss from July 11, 2016, is not warranted. To the extent that the Veteran reports that his acuity is worse than rated, the Board has considered his statements. This evidence is both competent and credible in regard to reporting his hearing acuity. However, far more probative of the degree of the disability are the results of testing prepared by skilled professionals since the schedular criteria are predicated on audiological findings rather than subjective reports of severity of hearing loss. In essence, lay statements are of limited probative value. As a layperson, the Veteran is competent to report difficulty with his hearing; however, he is not competent to assign particular speech recognition scores or pure tone decibel readings to his current acuity problems. As indicated above, ratings of hearing loss disability involve mechanical application of the rating criteria to the findings on official audiometry. Therefore, a rating in excess of those already assigned are not warranted for any period on appeal. B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD I. McGee, Law Clerk