Citation Nr: 1807314 Decision Date: 02/05/18 Archive Date: 02/14/18 DOCKET NO. 14-38 798 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Entitlement to an increased initial rating for bilateral hearing loss disability, rated noncompensable prior to August 19, 2017, and 30 percent disabling as of that date. REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs WITNESSES AT HEARING ON APPEAL The Veteran, his wife and J.F. ATTORNEY FOR THE BOARD N. Rippel, Counsel INTRODUCTION Veteran served on active duty from August 1959 to July 1961. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon, that granted the Veteran service connection for bilateral hearing loss disability, and assigned a noncompensable disability rating. In February 2017, the Veteran testified at Board hearing before the undersigned Veterans Law Judge. In July 2017, the Board remanded this matter to the Agency of Original Jurisdiction (AOJ). In September 2017, the RO granted a 30 percent rating effective from August 19, 2017. The appeal has continued. As the requested medical examination was obtained, the Board finds the directives have been substantially complied with, and the matter again is before the Board. Stegall v. West, 11 Vet. App. 268, 271 (1998). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (2012). FINDINGS OF FACT 1. Prior to March 22, 2014, the Veteran's bilateral hearing loss disability is manifested by no greater than level III hearing loss in the right ear and level II hearing loss in the left ear. 2. From March 22, 2014, the Veteran's bilateral hearing loss disability is manifested by no greater than level VII hearing loss in the right ear and level V hearing loss in the left ear. CONCLUSIONS OF LAW 1. The criteria for a compensable disability rating for bilateral hearing loss disability have not been met prior to March 22, 2014. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.7, 4.85, 4.86, Diagnostic Code 6100 (2017). 2. The criteria for a disability rating of 30 percent, and no higher, for bilateral hearing loss disability have been met from March 22, 2014. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.7, 4.85, 4.86, Diagnostic Code 6100 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Preliminary Matters Upon receipt of a complete or substantially complete application, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5103 (a), 5103A (2012); 38 C.F.R. § 3.159 (2017). VA treatment records and identified private treatment records have been obtained. Also, VA examination was conducted, most recently in August 2017. Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist as to this claim, and the appeal may be considered on the merits. In addition, during the Board hearing, the undersigned Veterans Law Judge (VLJ) clarified the issue on appeal, identified potential evidentiary deficits, and clarified the type of evidence that would support the appellant's claim. The VLJ issued the aforementioned remand in part based on the testimony. The actions of the VLJ supplement the VCAA and comply with any related duties owed during a hearing. See 38 C.F.R. § 3.103. II. Increased Rating The Veteran asserts he is entitled to compensable rating for his service-connected bilateral hearing loss disability. His wife testified that despite wearing hearing aids, he has substantial trouble hearing many words. Both she and J.F. explained at the hearing that he turns the television volume up extremely high now and has significant difficulty talking on the phone. J.F. indicated that it is a struggle to carry on a phone conversation with the Veteran. He indicated his perception that the Veteran's hearing has worsened since the most recent VA examination in March 2014. As addressed below, the Board finds that the preponderance of the evidence is against finding that the Veteran's bilateral hearing loss disability more nearly approximates the level of severity contemplated by a compensable rating until March 22, 2014, at which point it more nearly approximates a 30 percent rating, and no higher. A. Law Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule). 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 their residual conditions in civil occupations. 38 U.S.C. § 1155. Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Here, the service-connected bilateral hearing loss disability materially changed following the March 2014 examination, and a staged evaluation is assigned as explained below. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Veteran's service-connected bilateral hearing loss is rated as 10 percent disabling pursuant to 38 C.F.R. § 4.85, Diagnostic Code 6100. Under the rating criteria, the method for rating bilateral hearing loss disability is based on examination results including a controlled speech discrimination test (Maryland CNC), and a pure tone audiometric test of pure tone decibel thresholds at 1000, 2000, 3000, and 4000 Hz with an average pure tone threshold obtained by dividing these thresholds by four. 38 C.F.R. § 4.85. Once these test results have been obtained, employing Table VI, a Roman numeral designation of auditory acuity level for hearing impairment is ascertained based on a combination of the percent of speech discrimination and pure tone threshold average. Once a Roman numeral designation of auditory acuity level for each ear has been determined, Table VII is used to determine the percentage evaluation for bilateral hearing loss by combining the Roman numeral designations of auditory acuity level for hearing impairment of each ear. 38 C.F.R. § 4.85. There is an alternative method of rating hearing loss in defined instances of exceptional hearing loss. Exceptional hearing exists when the pure tone threshold at the frequencies of 1000, 2000, 3000, and 4000 Hertz is 55 decibels or more; or where the pure tone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz. See 38 C.F.R. § 4.86. The Board further notes the United States Court of Appeals for Veterans Claims has held that, "in addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in his or her final report." Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). However, the Federal Circuit has noted that such is not part of the rating criteria. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (2009). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. B. Analysis Service connection for bilateral hearing loss was granted in a January 2013 rating decision, and a noncompensable rating was assigned, effective from June 22, 2012. The Veteran disagreed, seeking a compensable rating. A September 2017 rating decision granted a 30 percent rating from the date of VA examination in August 2017. Three VA examinations were accomplished during the period on appeal. A June 2012 report from Mid-Valley Hearing Center does not provide all data required for rating and, while it is noted to show hearing loss, will not be used to in the actual rating of this claim. See 38 C.F.R. § 4.85(a). At the Veteran's December 2012 VA examination, pure tone thresholds, in decibels, and Maryland CNC speech discrimination results were as follows: HERTZ CNC 1000 2000 3000 4000 Avg RIGHT 30 65 85 100 70 86% LEFT 30 50 75 80 59 86% Neither ear demonstrates an exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 (a). Applying 38 C.F.R. § 4.85, Table VI to the above audiological findings, the Veteran has a numeric designation of III for the right ear and III for the left ear. Application of 38 C.F.R. § 4.85, Table VII, results in a noncompensable disability evaluation. At the Veteran's March 2014 VA examination, pure tone thresholds, in decibels, and Maryland CNC speech discrimination results were as follows: HERTZ CNC 1000 2000 3000 4000 Avg RIGHT 30 60 65 95 62.5 86% LEFT 30 55 65 75 56.25 86% Neither ear demonstrates an exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 (a). Applying 38 C.F.R. § 4.85, Table VI to the above audiological findings, the Veteran has a numeric designation of III for the right ear and II for the left ear. Application of 38 C.F.R. § 4.85, Table VII, results in a noncompensable disability evaluation. At the Veteran's August 2017 VA examination, pure tone thresholds, in decibels, and Maryland CNC speech discrimination results were as follows: HERTZ CNC 1000 2000 3000 4000 Avg RIGHT 40 65 90 100 73.75 60% LEFT 30 55 75 85 61.25 72% Again, neither ear demonstrates an exceptional pattern of hearing impairment under 38 C.F.R. § 4.86. Applying 38 C.F.R. § 4.85, Table VI, for both ears, to the above audiological findings, the Veteran again has a numeric designation of VII for the right ear and V for the left ear. Application of 38 C.F.R. § 4.85, Table VII, results in a 30 percent disability evaluation. At the Veteran's hearing, both he and his witnesses credibly testified that he has had a higher degree of hearing loss than reflected in the March 2014 examination for some time. Additionally, the treatment records dated since the March 2014 examination report unequivocally reflect that the Veteran has difficulty communicating due to hearing loss. Essentially, the clinical record is consistent with the testimony as of the time period since the March 2014 examination. Based on a careful review of all the evidence, the Board finds that prior to March 22, 2014, a compensable rating for the Veteran's service-connected bilateral hearing loss disability is not warranted. However, as of the day following the March 21, 2014, examination, the Board resolves reasonable doubt regarding the degree of disability in favor of the claim and finds that a 30 percent rating, and no higher, is approximated based on the audiological clinic test results shown in August 2017, the hearing testimony and the treatment record. Up to and including March 21, 2014, the criteria are not met or approximated. The arguments in favor of a compensable rating prior to March 22, 2014, are outweighed by the documented treatment and examination record showing no support for a compensable rating. In so deciding, the Board has carefully considered the Veteran's contentions noted above. It must be emphasized that the assignment of a schedular disability rating for hearing impairment is derived by a mechanical application of the rating schedule to the numeric designation assigned after valid audiometry results are obtained. Hence, the Board has no discretion in this matter and must predicate its determination on the basis of the results of the audiology studies of record. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). A staged rating is warranted only as set forth above, as the Board finds that the Veteran has had a stable level of symptomatology throughout the period on appeal prior to March 22, 2014, and notes the audiograms and treatment records prior to that date show a consistent degree of objective impairment. Here, the Board finds that the overall record, consisting not only of examination reports but also treatment records, written statements, and testimony, persuasively suggests that the level of disability remained uniform prior to March 22, 2014. As the preponderance of the evidence is against the claim for increase prior to that date, the benefit-of-the-doubt doctrine is inapplicable. 38 C.F.R. § 4.3. (CONTINUED ON NEXT PAGE) Neither the Veteran nor his representative have raised any other issues, nor have any other issues been reasonably raised by the record as to this claim. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (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); see also Yancy v. McDonald, 27 Vet. App 484 (2016). ORDER Prior to March 22, 2014, a compensable rating for bilateral hearing loss disability is denied. From March 22, 2014, a 30 percent rating, and no higher, is granted for bilateral hearing loss disability, subject to the laws governing the award of monetary benefits. ____________________________________________ C. TRUEBA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs