Citation Nr: 18155779 Decision Date: 12/06/18 Archive Date: 12/06/18 DOCKET NO. 13-01 604 DATE: December 6, 2018 ORDER Entitlement to a compensable rating prior to July 8, 2010 for bilateral hearing loss is denied. Entitlement to a rating higher than 30 percent from July 8, 2010 until July 26, 2012 for bilateral hearing loss is denied. REMANDED Entitlement to a compensable rating from July 26, 2012 until October 20, 2014 is remanded. Entitlement to a rating higher than 40 percent from October 20, 2014 for bilateral hearing loss is remanded. FINDINGS OF FACT 1. For the period prior to July 8, 2010, the Veteran’s hearing acuity was not shown to have been worse than Level II in either ear. 2. For the period from July 8, 2010 until July 26, 2012, the Veteran’s hearing acuity was not shown to have been worse than Level VII in the right ear and Level VI in the left ear. CONCLUSION OF LAW The criteria for entitlement to a compensable rating prior to July 8, 2010 and a rating higher than 30 percent from July 8, 2010 until July 26, 2012 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85, Diagnostic Code (Code) 6100, 4.86. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had honorable active military service from December 1968 to October 1969. In September 2017, the Board of Veterans’ Appeals (Board) remanded the claims of entitlement to service connection for an acquired psychiatric disorder, and increased rating for bilateral hearing loss and a total disability rating based upon individual unemployability (TDIU) for further development. By January 2013 interim rating decision, the Veteran’s service connected bilateral hearing loss was increased to 30 percent effective July 8, 2010 and a 0 percent rating was re-assigned from July 26, 2012. In a November 2014 interim rating decision, the Veteran’s service connection bilateral hearing loss was increased to 40 percent effective October 20, 2014. By July 2018 interim rating decision service connection was granted for major depressive disorder (claimed as acquired psychiatric disorder) with a 70 percent rating effective July 25, 2008 and 100 percent from August 8, 2012. This was a full grant of the benefit sought for that claim. The July 2018 rating decision also granted TDIU effective May 16, 2009 to August 8, 2012. Increased Rating Disability ratings are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity caused by a given disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability more closely approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Where entitlement to compensation has already been established and increase in disability is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, staged ratings may be appropriate in an increased-rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Hearing loss is evaluated under 38 C.F.R. § 4.85, Code 6100, which provides that numeric designations are assigned based upon a mechanical use of tables found in 38 C.F.R. § 4.85, based on puretone thresholds and speech discrimination; there is no room for subjective interpretation. Under Table VI, a Roman numeral designation (I through XI) for hearing impairment is found based on a combination of the percent of speech discrimination scores and the puretone threshold average. 38 C.F.R. § 4.85(b). Table VIA will be used, which assigns a Roman numeral designation solely on the puretone threshold average, when the examiner certifies that use of the speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc. 38 C.F.R. § 4.85(c). Table VIA may also be used when there is an exceptional pattern of hearing impairment. Such a pattern occurs when the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more, or when the puretone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz. 38 C.F.R. § 4.86. The Table which yields the better result for the Veteran is to be selected. The puretone threshold average is the sum of the puretone thresholds at 1000, 2000, 3000, and 4000 Hertz, divided by four. 38 C.F.R. § 4.85(d). The Roman numeral designations determined using Table VI or Table VIA are combined using Table VII to find the percentage evaluation to be assigned for the hearing impairment. Prior to July 8, 2010 The Veteran’s bilateral hearing loss was assigned a 0 percent rating for the period prior to July 8, 2010. On an August 2009 VA audiological examination, audiometry revealed puretone thresholds, in decibels, were: HERTZ 1000 2000 3000 4000 AVG. RIGHT 50 65 85 90 73 LEFT 45 60 85 95 71 Speech audiometry revealed speech recognition ability of 92 percent in the right ear and 100 percent in the left ear. The Veteran that his functional effect related to his hearing loss was having difficulty hearing speech clearly, particularly in background noise. Applying 38 C.F.R. § 4.85 Table VI to the findings on August 2009 VA audiometry establishes that the Veteran had Level II hearing acuity in each ear. Such findings warrant a 0 percent rating under Table VII, Code 6100. An exceptional pattern of hearing loss (to warrant a rating under alternate criteria in Table VIA) was not found on the August 2009 examination. The Board finds the examination to have been adequate for rating purposes; it was conducted in accordance with regulatory criteria, and the examiner commented on the effect the Veteran’s hearing loss disability had on his functional abilities. Accordingly, there is no schedular basis for a compensable rating based on the above test results. From July 8, 2010 until July 26, 2012 The Veteran’s bilateral hearing loss was assigned a 30 percent rating for the period from July 8, 2010 until July 26, 2012. On a July 2010 VA audiological examination, audiometry revealed that puretone thresholds, in decibels, were: HERTZ 1000 2000 3000 4000 AVG. RIGHT 60 70 90 95 79 LEFT 50 65 90 105 78 Speech audiometry revealed speech recognition ability of 64 percent in the right ear and 72 percent in the left ear. The diagnosis was bilateral hearing loss. The Veteran had severe sensorineural hearing loss in both ears. The examiner noted there was no change in the diagnosis because subjectively, the Veteran had difficulty hearing and understanding conversational speech and instructions; and objectively, the audiometric test results reflect bilateral sensorineural hearing loss. The examiner noted that the effects of the Veteran’s hearing loss disability on his usual occupation was he had difficulty concentrating and difficulty hearing and understanding instructions due to his hearing loss and tinnitus. The effect of his hearing loss on his daily activities was that he had difficulty hearing and understanding conversational speech and he had constant annoying tinnitus. Applying 38 C.F.R. § 4.85 Table VI to the findings on July 2010 VA audiometry establishes that the Veteran had Level VII hearing acuity in the right ear and Level VI in the left ear. Such findings warrant a 30 percent rating under Table VII, Code 6100. An exceptional pattern of hearing loss (to warrant a rating under the alternate criteria in Table VIA) was shown in the right ear on the July 2010 examination with the result being Level VII hearing acuity, the same as under Table VI. The Board finds the examination to have been adequate for rating purposes; it was conducted in accordance with regulatory criteria, and the examiner commented on the effect the Veteran’s hearing loss disability had on his occupation and daily activities. See Martinak v. Nicholson, 21 Vet. App. 447, 455-56 (2007). Accordingly, there is no basis for a rating higher than the 30 percent assigned for the period from July 8, 2010 until July 26, 2012. As noted, the Veteran claims essentially that the severity of his bilateral hearing loss is not adequately reflected in any of the ratings assigned. He reported he was unable to hear what was being said at a distance or what was being said when more than one person was talking and it was very hard to hear in background noise. He is competent, as a layperson, to report on that which he has personal knowledge, such as difficulty hearing. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Nevertheless, as a layperson, without the appropriate medical training and expertise, he is not competent to provide a probative (persuasive) opinion on a medical matter, especially the severity of his bilateral hearing loss disability in terms of the applicable rating criteria. Rather, this necessarily requires appropriate audiological testing, by a trained and credentialed professional. Since he is not competent to provide probative evidence in this regard, there is necessarily no need to additionally consider the credibility of his lay statements. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Although the Board is mindful of the Veteran’s description of his hearing loss, the Board is bound by the very precise nature of the laws governing evaluations of hearing loss disability. The Veteran’s claim hinges on a mechanical application of specifically defined regulatory standards. Accordingly, the Veteran’s claims of entitlement to a rating prior to July 8, 2010 and a rating higher than 30 percent from July 8, 2010 until July 26, 2012 must be denied. The more recent stages of the Veteran’s hearing loss evaluation are addressed in the REMAND section of this decision. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). While the Veteran raised the issue of a total disability rating based on individual unemployability (TDIU), he was granted TDIU from May 2009 to August 2012 and was subsequently assigned a 100 percent rating from August 2012 for his major depressive disorder. The Veteran has not asserted, nor does the record reflect, that hearing loss (as opposed to his psychiatric disorder) precludes substantially gainful employment. See Bradley v. Peake, 22 Vet. App. 280, 294 (2008). REASONS FOR REMAND In a statement received at the Regional Office (RO) in September 2018, the Veteran indicated that he has increased symptoms associated with his service-connected bilateral hearing loss, currently rated 40 percent from October 20, 2014. In addition, in an October 2018 brief, the Veteran’s representative asserted that a prior VA examiner did not adequately assess the Veteran’s hearing loss because he did not take into account that the Veteran was not able to hear the television without increasing the volume and because he was not able to hear during face-to-face conversations. Considering the Veteran’s statements indicating that his disability picture is more severe, and mindful that the examination is more than four years old, another examination must be afforded to accurately assess the current level of his bilateral hearing loss disability, and also to further explain the higher degree of hearing acuity shown on a July 26, 2012 VA examination that was cited in reducing the evaluation to zero percent as of that date but is rather at odds with evidence both earlier and later of record. 38 C.F.R. § 3.159(c)(4). The matter is REMANDED for the following action: Schedule the Veteran for a VA examination of his bilateral hearing loss disability to determine the current severity of the service-connected disability. The claims file must be made available to and reviewed by the examiner and all necessary tests should be performed. All findings should be reported in detail. The examiner should address the functional impairment caused by the Veteran’s service-connected bilateral hearing loss disability and related complications regarding his ability to perform tasks, including sedentary and physical tasks. The examiner should also explain the clinical significance of the relative improvement in the Veteran’s audiological findings from the June 26, 2012 VA examination, particularly as those findings are significantly at odds with other findings both earlier and later of record. A detailed rationale is requested for any opinion provided. A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Young, Counsel