Citation Nr: 18155215 Decision Date: 12/04/18 Archive Date: 12/03/18 DOCKET NO. 16-56 186 DATE: December 4, 2018 ORDER Entitlement to a compensable rating for service connected bilateral hearing loss is denied. FINDING OF FACT Throughout the period on appeal, the Veteran’s hearing impairment has been no worse than Level III in the right ear and Level II in the left ear. CONCLUSION OF LAW The criteria for entitlement to a compensable disability rating for a service connected bilateral hearing loss disability have not been met or approximated. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 3.385, Part 4, §§ 4.1, 4.2, 4.3, 4.85, Diagnostic Code 6100, 4.86. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1973 to June 1979. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a January 2016 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In the instant case, VA did not provide the appellant with a VCAA notice prior to the issuance of the January 2016 rating decision. However, the appellant’s current claim for compensation benefits was filed as a Fully Developed Claim (FDC) using VA Form 21-526EZ. When filing a FDC, a claimant submits all evidence relevant and pertinent to his claim other than service treatment records, which will be obtained by VA. The FDC form includes notice to the claimant of what evidence is required to substantiate a claim and of the claimant’s and VA’s respective duties for obtaining evidence. Thus, the notice that is part of the FDC form submitted by the appellant satisfies the duty to notify under the VCAA. Thus, the Board finds that VA has substantially complied with its duty to notify under the VCAA, and it is not prejudicial to the Veteran for the Board to proceed to a final decision in this appeal. 1. Entitlement to a compensable rating for bilateral hearing loss. Disability evaluations are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. 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 the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (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). That said, higher evaluations may be assigned for separate periods based on the facts found during the appeal period. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). This practice is known as staged ratings. Id. If the evidence for and against a claim is in equipoise, the claim will be granted. 38 C.F.R. § 4.3. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Assignment of a disability rating for hearing loss is derived by a mechanical application of the rating schedule to the specific numeric designations assigned after audiology testing is completed. Lendenmann v. Principi, 3 Vet. App. 345 (1992). 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. 38 C.F.R. § 4.85. The rating schedule establishes 11 auditory hearing acuity levels based upon average puretone thresholds and speech discrimination. See 38 C.F.R. § 4.85. “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 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 or 4.85(c). 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). The special provisions of 38 C.F.R. § 4.86 apply in instances of exceptional hearing loss. See 38 C.F.R. § 4.86. When the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) are all 55 decibels or more, the adjudicator must determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa in 38 C.F.R. § 4.85, whichever results in the higher numeral. 38 C.F.R. § 4.86(a). Also, 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. Each ear is evaluated separately. 38 C.F.R. § 4.86(b). In this case, the Veteran was provided with a VA audiological examination in December 2015, which diagnosed the Veteran with bilateral sensorineural hearing loss. The results of the audiological examination were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 35 40 70 80 LEFT 35 35 45 65 85 Based on these results, the average puretone threshold was 62.5 decibels for the right ear and 66.25 decibels for the left ear. 38 C.F.R. § 4.85(d). Speech recognition was 88 percent in the right ear and 100 percent in the left ear, as measured by the Maryland CNC test. Applying these values to Table VI, the result is a Level III Roman numeral designation for the right ear and a Level II Roman numeral designation for the left ear. When the Level II and Level III designations from the audiological examination are applied to Table VII, the result is a 0 percent rating. 38 C.F.R. § 4.85; Lendenmann, 3 Vet. App. 345. In his January 2016 Notice of Disagreement (NOD) the Veteran stated that he disagreed with the results of the audiological examination because the test volume was much louder than would be encountered in normal conversation, and therefore, he was warranted a compensable rating for his bilateral hearing disability. For this reason, the Veteran contends the severity of his bilateral hearing impairment is not reflected in the December 2015 VA audiological evaluation; however, there is no indication that the VA evaluation produced test results that were invalid, or that they did not sufficiently address the Veteran’s disability picture. The Veteran’s lay statement regarding the inadequacy of the VA audiological examination, which is an objective evaluation based on empirical numerical findings, is insufficient for the Board to deem the examination inadequate. Also, the Veteran has not alleged symptoms of his bilateral hearing impairment have worsened since the December 2015 VA audiological evaluation. (Continued on the next page)   Based on the foregoing, the preponderance of the evidence is against a compensable rating for the Veteran’s bilateral hearing loss. As such, the benefit-of-the-doubt doctrine is inapplicable. 38 C.F.R. § 4.3. The Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369–70 (2017). For these reasons, the claim is denied. Michael Pappas Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. White, Associate Counsel