Citation Nr: 18161206 Decision Date: 12/31/18 Archive Date: 12/28/18 DOCKET NO. 16-63 524 DATE: December 31, 2018 ORDER Entitlement to a compensable rating prior to November 21, 2016 for bilateral hearing loss and in excess of 20 percent since that date is denied. FINDINGS OF FACT 1. Prior to November 21, 2016, the Veteran’s hearing loss has been manifested by hearing impairment no worse than auditory level I in the right ear, and level III in the left ear. 2. From November 21, 2016, and thereafter, the Veteran’s hearing loss has been manifested by hearing impairment no worse than auditory level V in both ears. CONCLUSION OF LAW 1. The criteria for entitlement to a compensable rating prior to November 21, 2016 for bilateral hearing loss and in excess of 20 percent from November 21, 2016 and thereafter have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.85, 4.86a, Diagnostic Code (DC) 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served from September 1972 to September 1974. 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 illness proportionate to the severity of the several grades of disability. See 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. While the Board typically considers only those 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). When 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 November 21, 2016 for bilateral hearing loss and in excess of 20 percent from November 21, 2016 and thereafter Prior to November 21, 2016 The Veteran contends that he is entitled to a compensable rating for his bilateral hearing loss. 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. 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). The Board determines that a compensable rating is not warranted for the Veteran’s bilateral hearing loss. At an audiological examination in January 2015, he reported difficulty in most listening situations. On audiological evaluation, his pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 10 65 60 65 50 LEFT 35 70 65 75 61 Speech recognition scores were 94 percent in the right ear and 86 percent in the left ear. When utilizing Table VI, the Veteran exhibits Level I hearing impairment in his right ear and Level III hearing impairment in his left ear. Applying these results to Table VII, a noncompensable percent rating is for application. Therefore, based on the evidence of record, a compensable rating for bilateral hearing loss is not warranted. From November 21, 2016 and thereafter In his October 2015 notice of disagreement, the Veteran stated that his bilateral hearing loss had worsened. The Veteran was afforded a new VA examination for his bilateral hearing loss in November 2016. On audiological evaluation, his pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 20 60 70 70 55 LEFT 35 65 65 85 63 Speech recognition scores were 68 percent in his right ear and 72 percent in his left ear. When utilizing table VI, the Veteran exhibits level V hearing impairment in both ears. Applying these results to Table VII, a 20 percent rating is for application. Therefore, based on the evidence of record, a rating in excess of 20 percent is not warranted. In considering the appropriate disability ratings, the Board has also considered the Veteran’s statements that his hearing loss is worse than the rating he currently receives. Here, while the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, he is not competent to identify a specific level of disability of his disabilities according to the appropriate diagnostic codes. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). On the other hand, such competent evidence concerning the nature and extent of the Veteran’s hearing loss has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. See Lendenmann, supra. The medical findings (as provided in the examination report) directly addresses the criteria under which this disability is evaluated. The Board has specifically considered the Veteran’s assertion that the January 2015 VA examination was improper, and that his 20 percent rating should extend the entire period on appeal, as he believes that his hearing loss has been of constant severity during this time. However, there is nothing in the January 2015 VA examination to suggest it was improperly performed or that the results of that examination were inaccurate. The Board is cognizant that the speech recognition scores were dramatically worse in the more-recent November 2016 VA examination. This was the primary basis for the increased rating. However, in the Board’s view, it is just as likely that it is the November 2016 evaluation that may be incorrect, given that his tonal thresholds actually improved since the prior VA examination, and it is possible that the Veteran is currently overrated for his condition. However, in order to afford the him the benefit of the doubt, the Board will decline to order a new VA examination to confirm whether the November 2016 results are truly accurate.   Based on the foregoing, the Board has determined that a rating in excess of 20 percent for bilateral hearing loss not warranted, and the appeal is denied. B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Vample, Associate Counsel