Citation Nr: 18156269 Decision Date: 12/11/18 Archive Date: 12/07/18 DOCKET NO. 09-43 824 DATE: December 11, 2018 ORDER Entitlement to an initial compensable rating for bilateral hearing loss is denied. FINDING OF FACT During the period on appeal, the Veteran’s bilateral hearing loss was not manifested by worse than a Level I hearing loss in each ear. CONCLUSION OF LAW During the period on appeal, 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, 3.385, 4.1-4.14, 4.85, 4.86, Diagnostic Code 6100 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Navy from August 1966 to July 1968. The Veteran testified before the undersigned Veterans Law Judge during a May 2017 hearing. This matter is on appeal from a July 2009 rating decision. This issue was previously remanded by the Board in August 2017 to afford the Veteran a VA examination. The Agency of Original Jurisdiction (AOJ) has done so. There was substantial compliance with the remand directives with regard to the issue being decided below. See Stegall v. West, 11 Vet. App. 268 (1998). The Board also remanded the issue of entitlement to service connection for bilateral foot fungus. In a June 2018 rating decision, VA granted service connection for onychomycosis. As this represents a full grant of the benefit sought with respect to that issue, it is no longer before the Board. Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) The issue of entitlement to service connection for hepatitis C was denied by the Board in its August 2017 decision. In January 2018, submitted a request to reopen the claim. In a January 2018 administrative decision, the Agency of Original Jurisdiction (AOJ) declined to adjudicate this claim because it incorrectly found that the claim was still on appeal. The AOJ has yet to adjudicate the claim. Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b). The Veteran was previously represented in this appeal by an attorney. In an August 2018 statement, the attorney requested to withdraw his services. After certification of an appeal, a representative may only withdraw if good cause is shown on motion. 38 C.F.R. § 20.608(b)(2) (2017). In a September 2018 letter, VA informed the attorney that it construed his statement as a motion. In a separate August 2018 statement, the attorney explained that he had received notice from the Veteran that he no longer wished to be represented by the attorney due to a dispute over his services. Because the Board finds that the attorney has demonstrated good cause to withdraw, the attorney’s motion is granted. VA’s duty to notify was satisfied by a March 2009 letter. 38 U.S.C. §§ 5102, 5103, 5103A (2012); 38 C.F.R. § 3.159 (2015); Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). With regard to the duty to assist, the Veteran’s service treatment records, VA medical treatment records, and indicated private medical records have been obtained. The Veteran underwent VA audiological examinations in April 2009 and November 2017. The VA examinations are adequate because they were based upon consideration of the Veteran’s pertinent medical history, his lay assertions and current complaints, and because they describe his bilateral hearing loss in detail sufficient to allow the Board to make a fully informed determination. Barr v. Nicholson, 21 Vet. App. 303 (2007) (citing Ardison v. Brown, 6 Vet. App. 405, 407 (1994)). 1. Bilateral Hearing Loss The Veteran contends that his service-connected bilateral hearing loss warrants a compensable rating. It is currently service-connected with a noncompensable rating on and after March 9, 2009. Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate Diagnostic Codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4 (2017). Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. “Staged” ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Given the nature of the present claim for a higher initial evaluation, the Board has considered all evidence of severity since the effective date for the award of service connection. Fenderson v. West, 12 Vet. App. 119 (1999). Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Evaluations of defective hearing range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of a controlled Maryland CNC speech discrimination test together with the average hearing threshold level measured by pure tone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hertz). 38 C.F.R. §§ 3.385, 4.85, Diagnostic Code 6100. To evaluate the degree of disability from bilateral service-connected hearing loss, the schedule establishes 11 auditory hearing acuity levels designated from Level I for essentially normal hearing acuity through Level XI for profound deafness. 38 C.F.R. § 4.85, Tables VI and VII. Disability ratings for hearing loss are derived from a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). An exceptional pattern of hearing impairment occurs when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more. 38 C.F.R. § 4.86(a). In that situation, 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. Further, when the average pure tone 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, and that numeral will then be elevated to the next higher numeral. 38 C.F.R. § 4.86(b). In April 2009, the Veteran was afforded a VA examination. The examiner diagnosed bilateral sensorineural hearing loss. The hearing examination results were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 30 20 20 45 50 LEFT 25 20 20 50 65 The pure tone average in the right ear was 33.75 and the pure tone average in the left ear was 38.75. Speech recognition was 92 percent in each ear. The examiner noted the Veteran’s report of functional impact in the form of missing out on conversations, needing the television to be loud, difficulty listening in noisy environments, and difficulty hearing at a distance. 38 C.F.R. § 4.10; Martinak v. Nicholson, 21 Vet. App. 447 (2007). The findings from the April 2009 VA examination require the use of Table VI for each ear. Applying the findings to that table yields findings of Level I hearing loss in each ear. 38 C.F.R. § 4.85, Diagnostic Code 6100. Where hearing loss is at Level I in each ear, a noncompensable rating is assigned under Table VII. Id. In his August 2009 Notice of Disagreement (NOD), the Veteran reported inability to hear or understand what people tell him unless he reads their lips. In a September 2014 VA treatment appointment, the Veteran was afforded an additional audiology evaluation. The hearing examination results were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 20 15 25 25 LEFT 15 10 15 50 60 The pure tone average in the right ear was 21.25 and the pure tone average in the left ear was 33.75. Speech recognition was 92 percent in each ear. The findings from the September 2014 audiology evaluation require the use of Table VI for each ear. Applying the findings to that table yields findings of Level I hearing loss in each ear. 38 C.F.R. § 4.85, Diagnostic Code 6100. Where hearing loss is at Level I in each ear, a noncompensable rating is assigned under Table VII. Id. During the May 2017 hearing, the Veteran testified that he could not hear conversations if there was a lot of background noise and misheard people, including his spouse. He added that he believed his hearing to be getting worse. In November 2017, the Veteran was afforded an additional VA examination. The examiner diagnosed bilateral sensorineural hearing loss. The hearing examination results were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 10 5 25 35 LEFT 10 5 15 55 60 The pure tone average in the right ear was 19 and the pure tone average in the left ear was 34. Speech recognition was 96 percent in the right ear and 92 percent in the left ear. The examiner noted the Veteran’s report of functional impact in the form of difficulty understanding his spouse in any level of background noise. 38 C.F.R. § 4.10; Martinak, 21 Vet. App. 447. The findings from the November 2017 VA examination require the use of Table VI for each ear. Applying the findings to that table yields findings of Level I hearing loss in each ear. 38 C.F.R. § 4.85, Diagnostic Code 6100. Where hearing loss is at Level I in each ear, a noncompensable rating is assigned under Table VII. Id. To the extent that the Veteran’s lay statements constitute assertions that his hearing loss is worse than its currently assigned noncompensable rating, he is competent to report a decrease in hearing acuity and his statements are credible. The Board acknowledges the Veteran’s complaints regarding the impact of hearing loss on his daily life, but his lay assertions do not constitute competent evidence to indicate that his hearing disability is worse than has been recorded in his VA examination or that hearing loss has functionally affected the Veteran in any more severe ways than have been discussed in the record and were already considered by medical professionals. The competence of a lay person to provide a medical opinion must be determined on a case by case basis. Kahana v. Shinseki, 24 Vet. App. 428 (2011). The Veteran in this case is not competent to make such a conclusion. Determining the severity of hearing loss involves using specialized equipment and interpreting audiological test results. The record does not show that the Veteran possesses the training or experience needed to accomplish these actions. The probative value of his assertions is low. The rating criteria contemplate speech reception thresholds and ability to hear spoken words on Maryland CNC testing. The functional impact that the Veteran describes, difficulty hearing speech, is contemplated by the rating criteria. Doucette v. Shulkin, 28 Vet. App. 366 (2017). The Veteran’s main complaint is reduced hearing acuity and clarity, which is what is contemplated in the rating assigned. See Martinak, 21 Vet. App. 447. In brief, the medical examination findings are of greater probative value than the Veteran’s allegations regarding the severity of his hearing loss and the nature of any functional impairment is adequately reflected by those medical findings. Accordingly, the preponderance of the most probative evidence is against the claim of entitlement to a compensable rating for hearing loss. (Continued on the next page)   In reaching the conclusion above, the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran’s claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Ryan Frank, Counsel