Citation Nr: 18160090 Decision Date: 12/21/18 Archive Date: 12/21/18 DOCKET NO. 14-17 608 DATE: December 21, 2018 ORDER Entitlement to an initial compensable rating prior to January 25, 2018, and in excess of 20 percent thereafter, for bilateral hearing loss is denied. FINDINGS OF FACT 1. Prior to January 25, 2018, the Veteran’s bilateral hearing loss disability manifested by no more than Level III impairment in the right ear and Level III impairment in the left ear. 2. From January 25, 2018, the Veteran’s bilateral hearing loss disability manifested by no more than Level V impairment in the right ear and Level VI impairment in the left ear. CONCLUSION OF LAW The criteria for an initial compensable rating prior to January 25, 2018, and in excess of 20 percent thereafter, for bilateral hearing loss are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.321, 4.1-4.10, 4.85, Diagnostic Code 6100 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service in the United States Army from March 1964 to March 1966. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas, which, in relevant part, granted entitlement to service connection for bilateral hearing loss with a noncompensable evaluation effective December 31, 2012. The Veteran submitted a Notice of Disagreement in January 2014 contesting the assigned disability evaluation. A Statement of the Case (SOC) was issued in April 2014. The Veteran perfected a timely Substantive Appeal via a VA Form 9 in May 2014. In October 2017, the Veteran testified before the undersigned Veterans Law Judge at a videoconference Board hearing. A copy of the hearing transcript has been associated with the claims file. The appeal was remanded by the Board for further development in December 2017. In November 2018, a rating decision increased the evaluation of service-connected bilateral hearing loss to 20 percent effective January 25, 2018. A Supplemental SOC was also issued in November 2018. 1. Entitlement to an initial compensable rating prior to January 25, 2018, and in excess of 20 percent thereafter, for bilateral hearing loss. The Veteran seeks a higher rating for his service-connected bilateral hearing loss, rated as noncompensable prior to January 25, 2018, and 20 percent disabling thereafter. Disability evaluations are determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule), found in 38 C.F.R. Part 4. The basis of disability evaluations is the ability of the body to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10. 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 civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history and reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability; resolving any reasonable doubt regarding the degree of disability in favor of the claimant; where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating; and evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person’s ordinary activity. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 4.2, 4.3, 4.7, 4.10. In evaluating hearing loss, disability ratings are derived by a mechanical application of the Rating Schedule to the numeric designations assigned after audiometric evaluations are rendered. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). The Rating Schedule provides a table for rating purposes (Table VI) to determine a Roman numeral designation (I through XI) for hearing impairment, established by a state-licensed audiologist including a controlled speech discrimination test (Maryland CNC), and based upon a combination of the percent of speech discrimination and the pure tone threshold average, which is the sum of the pure tone thresholds at 1000, 2000, 3000 and 4000 Hertz, divided by four. See 38 C.F.R. § 4.85. Table VII is then used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment of each ear. In some circumstances, the rating specialist may use Table VIa instead of Table VI. Specifically, Table VIa may be used where the examiner certifies that use of the speech discrimination test was not appropriate because of language difficulties, inconsistent speech discrimination scores, etc., or when indicated under the provisions of 38 C.F.R. § 4.86. See 38 C.F.R. § 4.85(c). Also, in cases presenting exceptional patterns of hearing impairment, a rating specialist may use Table VIa. 38 C.F.R. § 4.86 (2017). Exceptional patterns of hearing impairment include circumstances where the hearing thresholds are 55 decibels or more in each of the four frequencies from 1000 to 4000 Hertz or where a veteran has a hearing threshold of less than 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz. Id. Turning to the evidence, the Veteran underwent VA audiological examination in December 2013. His pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 50 50 50 70 70 LEFT 45 50 50 65 70 The average decibel loss was 60 in the right ear and 58.75 in the left ear. Speech audiometry revealed speech recognition ability of 86 percent in the right ear and 90 percent in the left ear. The Veteran underwent further VA audiological examination in January 2018. Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 35 40 45 75 70 LEFT 30 40 50 80 85 The average decibel loss was 58 in the right ear and 64 in the left ear. Speech audiometry revealed speech recognition ability of 72 percent in the right ear and 60 percent in the left ear. After careful consideration of the evidence, the Board finds that the currently assigned noncompensable rating prior to January 25, 2018 and 20 percent thereafter is appropriate. The December 2013 VA audiological examination results reflect Level III hearing acuity in the right ear and Level III hearing acuity in the left ear under Table VI. Under Table VII, utilizing these designations, a compensable rating is not warranted. 38 C.F.R. § 4.85, Tables VI and VII, Diagnostic Code 6100. The January 2018 VA audiological examination results reflect Level V hearing acuity in the right ear and Level VI hearing acuity in the left ear under Table VI. Under Table VII, utilizing these designations, a 20 percent evaluation is warranted. Id. An exceptional pattern of hearing impairment is not demonstrated by the results of either VA audiological examination. The evidence of record also includes multiple statements from the Veteran declaring his belief that a higher rating is warranted. The Board acknowledges the contentions put forth by the Veteran regarding his hearing difficulties and the impact his service-connected hearing loss has on his ability to understand speech. As a layperson, he is competent to report symptoms related to his hearing. However, he is not competent to assign particular speech recognition scores or pure tone decibel readings to his current acuity problems. Thus, the findings of the audiological examinations are more probative than the lay contentions as to the extent of hearing loss. In this case, because disability ratings for hearing impairment are derived by a mechanical application of the Rating Schedule to the numeric designations assigned after audiometry evaluations are rendered, there is no doubt as to the proper evaluation to assign. Lendenmann, 3 Vet. App. at 345; 38 C.F.R. § 4.85, Tables VI and VII, Diagnostic Code 6100. Thus, when applying the audiological examination test results described above under the Rating Schedule, the Board is compelled to find against entitlement to a compensable disability rating prior to January 25, 2018, or a rating in excess of 20 percent thereafter. In finding such, the Board reiterates that the Veteran is competent to report the symptoms related to his loss of hearing. He is also credible to the extent that he sincerely believes he is entitled to a higher rating. However, the competent and credible lay evidence is outweighed by the competent and credible medical evidence that evaluates the true extent of his disability based on objective data coupled with the lay complaints. Importantly, an initial noncompensable rating does not mean that the Veteran’s hearing was normal during the period prior to January 25, 2018. The initial grant of service connection acknowledged that he has hearing loss, while the assigned rating reflects that the degree of disability of his hearing loss did not meet VA’s criteria for a compensable rating during that period. The exact date when the Veteran’s bilateral hearing loss disability surpassed the criteria for a compensable rating cannot be determined with any certainty based upon the evidence of record. The earliest date that it can be factually ascertained that he met the diagnostic criteria for an award of a 20 percent rating is January 25, 2018, the date of the second VA audiological examination. In reaching the above conclusions, consideration has been given to the holding in Martinak v. Nicholson, 21 Vet. App. 447 (2007), which requires a VA audiologist to describe the functional effects of a hearing loss disability in the examination report. The examination reports include recognition of the Veteran’s reported trouble hearing people speak, holding conversations with his wife, and hearing the TV or radio. The December 2013 examiner found no functional impact, while the January 2018 examiner noted that the hearing loss impacted the ordinary conditions of daily life, including the ability to work. Because the examination reports include a discussion of the functional and occupational impact of the Veteran’s hearing loss, the Board finds that the above examinations are adequate for rating purposes and entitled to significant probative value. See Martinak, 21 Vet. App. 447; 38 C.F.R. § 4.1, 4.2, 4.10. Finally, the Veteran has not indicated that he experiences symptoms that are not contemplated by the criteria, to include the speech recognition scores. As noted above, he reports hearing difficulties with other people, as well as the TV and radio. However, such difficulty is contemplated in the hearing loss criteria. Cf. Doucette v. Shulkin, 28 Vet. App. 366 (2017) (difficulty in distinguishing sounds in a crowded environment, locating the source of sounds, understanding conversational speech, hearing the television, and using the telephone are each a manifestation of difficulty hearing or understanding speech, which is contemplated by the schedular rating criteria for hearing loss). Moreover, he has not claimed, and the evidence does not reflect, that there has been marked interference with employment, frequent hospitalization, or that his symptoms have otherwise rendered impractical the application of the regular schedular standards. Therefore, referral for consideration of an extraschedular rating for bilateral hearing loss disability is not warranted. 38 C.F.R. § 3.321(b)(1). The Veteran has not raised any other issues with respect to the increased rating claim, nor have any other assertions been reasonably raised by the record. See Doucette, 28 Vet. App. at 369-70 (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Jamison, Elizabeth G.