Citation Nr: 18106973 Decision Date: 06/01/18 Archive Date: 05/31/18 DOCKET NO. 15-09 754 DATE: June 1, 2018 ORDER Entitlement to higher staged initial evaluations for bilateral hearing loss, rated 10 percent prior to January 15, 2014, and noncompensable from January 15, 2014, is denied. FINDING OF FACT For the appeal period prior to January 15, 2014, the Veteran’s service-connected bilateral hearing loss was manifested by no worse than level II hearing impairment in the right ear and level V hearing impairment in the left ear, and for the appeal period from January 15, 2014, his bilateral hearing loss was manifested by no worse than level II hearing impairment in the right ear and level II hearing impairment in the left ear. CONCLUSION OF LAW The criteria for an evaluation in excess of 10 percent prior to January 15, 2014, and the criteria for a compensable evaluation from January 15, 2014, for bilateral hearing loss, are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.3, 4.7, 4.21, 4.85, 4.86, Diagnostic Code 6100 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from April 1965 to April 1967. Subsequent to the most recent February 2015 statement of the case, issued for the appeal herein, in March 2015, the Veteran submitted additional private audiological records. However, as Veteran’s substantive appeal was filed after February 2, 2013 and as this additional evidence was submitted by the Veteran, the Board may proceed with appellate review. See VBA Fast Letter 14-02. 1. Entitlement to higher staged initial evaluations for bilateral hearing loss, rated 10 percent prior to January 15, 2014, and noncompensable from January 15, 2014. Disability evaluations are determined by comparing a veteran’s symptoms with criteria set forth in VA’s Schedule for Rating Disabilities, which are based on average impairment in earning capacity. 38 U.S.C. § 1155 (2015); 38 C.F.R. § 4.1 (2017). The assigned evaluation for hearing loss is determined by mechanically applying the rating criteria to certified test results. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Under the applicable criteria, ratings for hearing loss are determined in accordance with the findings obtained on audiometric examinations. Evaluations of hearing impairment range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests (Maryland CNC), together with the average hearing threshold level as measured by puretone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 Hertz. The rating criteria establish eleven auditory acuity levels designated from I to XI. As set forth in the regulations, Tables VI, VIa, and VII are used to calculate the rating to be assigned. See 38 C.F.R. § 4.85, Diagnostic Code 6100 (2017). Additionally, the regulations allow for evaluating exceptional patterns of hearing impairment. When the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more, Table VI or Table VIa is to be used, whichever results in the higher numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86 (a) (2016). When the puretone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, Table VI or Table VIa is to be used, whichever results in the higher numeral. Thereafter, that numeral will be elevated to the next higher numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86 (b). For the period prior to January 15, 2014, in conjunction with the Veteran’s claim, a VA hearing loss and tinnitus disability benefits questionnaire was afforded to the Veteran in June 2012. The June 2012 VA hearing loss and tinnitus disability benefits questionnaire results documented a puretone threshold average of 74 for the right ear and 64 for the left ear, at the relevant frequencies of 1000, 2000, 3000 and 4000 Hertz. The June 2012 VA hearing loss and tinnitus disability benefits questionnaire results revealed Maryland CNC speech recognition scores of 94 percent for each ear. Based on those results with the utilization of Table VI, the Veteran had level II hearing impairment in the right ear and level II hearing impairment in the left ear. However, based on the results which demonstrated an exceptional pattern of hearing impairment in the left ear, specifically, as 30 decibels at 1000 Hertz, and 70 decibels at 2000 Hertz, were documented, and with the utilization of Table VIa, which is more favorable to the Veteran, such provided a finding of level V hearing impairment in the left ear. 38 C.F.R. § 4.86 (a). Applying these results to Table VII, a 10 percent rating is warranted for bilateral hearing loss based on the June 2012 VA hearing loss and tinnitus disability benefits questionnaire results, which are the only audiometric results for the period prior to January 15, 2014. See 38 C.F.R. § 4.85, Diagnostic Code 6100. For the period from January 15, 2014 another VA hearing loss and tinnitus disability benefits questionnaire was afforded to the Veteran on January 15, 2014. The January 15, 2014 VA hearing loss and tinnitus disability benefits questionnaire results documented a puretone threshold average of 73 for the right ear and 64 for the left ear, at the relevant frequencies of 1000, 2000, 3000 and 4000 Hertz. However, unlike the results documented in the June 2012 VA hearing loss and tinnitus disability benefits questionnaire, an exceptional pattern of hearing impairment, pursuant to 38 C.F.R. § 4.86 (a), was not demonstrated for the left ear or the right ear, and thus, Table VIa is not for application. The January 15, 2014 VA hearing loss and tinnitus disability benefits questionnaire results revealed Maryland CNC speech recognition scores of 94 percent for each ear. Based on those results with the utilization of Table VI, the Veteran had level II hearing impairment in the right ear and level II hearing impairment in the left ear. Applying the results to Table VII, a noncompensable rating is warranted for bilateral hearing loss based on the January 15, 2014 hearing loss and tinnitus disability benefits questionnaire results. See 38 C.F.R. § 4.85, Diagnostic Code 6100. The Veteran submitted March 2014 private audiometric testing, which documented a puretone threshold average of 84 for the right ear and 74 for the left ear, at the relevant frequencies of 1000, 2000, 3000 and 4000 Hertz. An exceptional pattern of hearing impairment, pursuant to 38 C.F.R. § 4.86 (a), was not demonstrated for either ear. The March 2014 private audiometric testing also noted speech test results of 92 percent for the right ear and 100 percent for the left ear; however, it is unclear of such were Maryland CNC speech recognition scores as required by 38 C.F.R. § 4.85. Nonetheless, assuming arguendo, that such scores were indeed qualifying Maryland CNC scores, with the utilization of Table VI, the Veteran had level II hearing impairment in the right ear and level II hearing impairment in the left ear and in applying the results to Table VII, a noncompensable rating is again warranted. A February 2015 private medical record stated, in part, that comprehensive audiometry showed a moderate to profound sensorineural hearing loss in the right ear and a moderate to severe sensorineural hearing loss in the left ear but did not provide additional audiometric testing. Additional VA treatment records dated both prior to January 15, 2014, and thereafter, noted hearing loss related complaints but did not provide additional audiometric testing. Given the puretone threshold averages and speech recognition scores as set forth in June 2012 and January 2014 VA hearing loss and tinnitus disability benefits questionnaires and based on the March 2014 private audiometric testing, bilateral hearing loss is evident. However, in mechanically applying the rating criteria, the Veteran’s bilateral hearing loss has not been shown to be disabling enough to warrant higher ratings for the period prior to January 15, 2014 or thereafter. The rating criteria simply do not call for a rating in excess of what has already been assigned for the Veteran’s level of hearing impairment. See 38 C.F.R. § 4.85, Diagnostic Code 6100. This is so for the period prior to January 15, 2014 and the period thereafter. Furthermore, the Board recognizes the Veteran’s assertions, including in his May 2014 notice of disagreement that his hearing impairment had not improved in severity with the passage of time and that there was an anomaly in the testing equipment or misinterpretation of the audiometric results by the examiner. In a December 2014 statement, the Veteran reported, in part, his benefit was reduced because testing equipment at the West Haven VA noted a “slight improvement” in one ear, which was not borne out by his subjective experience. Additionally, in statement a received by VA in March 2015 as part of his substantive appeal, the Veteran reported, in part, he believed that his case was incorrectly decided because it relied solely on information provided by tests performed by machines carried out in sterile, isolated, laboratory environments, and as these tests were performed by and interpreted by people, they were subject to human error. He further argued, in part, he did not live in a sterile, isolated, laboratory environment, but in normal household environment, surrounded by a plethora of ambient sounds/noises, all of which impinged upon his ears and therefore had effects on his hearing ability. The Veteran’s endorsements as to his hearing difficulty are admissible and have been taken into consideration. See Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). However, the Veteran has not been shown to have the requisite knowledge or training to be deemed competent to identify a specific level of disability of his bilateral hearing loss according to the rating criteria. Such competent evidence concerning the nature and extent of the Veteran’s bilateral hearing loss has been provided by medical professionals who have objectively examined him and these medical findings directly address the criteria under which the Veteran’s hearing loss disability is evaluated. The Board finds these clinical records to be competent, objective, and probative evidence of record, and is therefore accorded greater weight than the Veteran’s subjective complaints of increased symptomatology for his bilateral hearing loss. Further, applicable VA law provides that examination for hearing impairment for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a puretone audiometry test. 38 C.F.R. § 4.85. There is no indication that the June 2012 or January 2014 hearing loss and tinnitus disability benefits questionnaires were conducted improperly. In this regard, the Board is entitled to presume the competency of the June 2012 and January 2014 VA examiners and specific challenges to a VA examiner’s competency must be raised by the Veteran to overcome this presumption. See Rizzo v. Shinseki, 580 F.3d 1288 (Fed. Cir. 2009). The Board is sympathic to the Veteran’s dissatisfaction with this bilateral hearing loss being rated as 10 percent prior to January 15, 2014 but noncompensable thereafter. However, this change was not precisely because his hearing showed an improvement but because his hearing pattern no longer met the exceptional pattern of hearing impairment under 38 C.F.R. § 4.86. Specifically, as noted above, 38 C.F.R. § 4.86 provides, in part, when the puretone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, Table VI or Table VIa is to be used, whichever results in the higher numeral. In this regard, as noted above, June 2012 audiometric testing documented 30 decibels at 1000 Hertz, and 70 decibels at 2000 Hertz which allowed for, in this instance, the more favorable utilization of Table VIa. However, January 2014 audiometric testing documented 35 decibels at 1000 Hertz, and 65 decibels at 2000 Hertz and March 2014 private audiometric testing documented 40 decibels at 1000 Hertz, and 90 decibels at 2000 Hertz, neither of which met the exceptional pattering of hearing impairment under 38 C.F.R. § 4.86. The regulations provide that consideration of whether special monthly compensation (SMC) is warranted is required when evaluating any claim for impaired hearing. See 38 C.F.R. § 4.85 (g). Certain levels of SMC may be awarded for deafness. However, the SMC criteria require bilateral deafness or some other service-connected disability, such as blindness, which do not apply to the Veteran’s case. See 38 U.S.C. § 1114 (2012); 38 C.F.R. § 3.350 (2017). Therefore, SMC is not warranted for the Veteran’s bilateral hearing loss. Additionally, a request for a total disability rating due to individual employability resulting from service-connected disability (TDIU), whether expressly raised by a veteran or reasonably raised by the record, is not a separate claim for benefits, but is rather part of the adjudication of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447 (2009). Thus, when entitlement to a TDIU is raised during the appeal of a rating for a disability, it is part of the claim for benefits for the underlying disability. Id. at 454. In this case, although the record reflects the Veteran’s bilateral hearing loss impacted ordinarily conditions of daily life, it does not reflect that the Veteran is unemployable due to his service-connected bilateral hearing loss. Specifically, the June 2012 hearing loss and tinnitus disability benefits questionnaire noted the Veteran’s hearing loss impacted ordinary conditions of daily life, including the ability to work, as the Veteran reported difficulty understanding speech or the television. Similarly, the January 2014 hearing loss and tinnitus disability benefits questionnaire noted the Veteran’s hearing loss impacted ordinary conditions of daily life, including the ability to work, as the Veteran reported difficulty hearing his wife and the television. However, the record does not indicate that the Veteran is unemployable due to his service-connected bilateral hearing loss, nor has the Veteran asserted such. Therefore, the issue of entitlement to a TDIU is not raised in this case. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record with respect to his bilateral hearing loss disability. 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). For these reasons, the Board finds that the Veteran is not entitled an evaluation in excess of 10 percent for bilateral hearing loss prior to January 15, 2014, nor a compensable evaluation thereafter. In making these determinations the Board considered the application of “staged” ratings, but found no additional distinctive periods where the Veteran’s service-connected bilateral hearing loss met or nearly approximated the criteria for higher ratings other than that already granted. In reaching this decision the Board considered the doctrine of reasonable doubt, however, to the extent the preponderance of the evidence is against ratings higher than or separate from that already assigned for the bilateral hearing loss, the doctrine is not for application. See 38 U.S.C. § 5107 (2012); 38 C.F.R. §§ 3.102, 4.3 (2017); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). U. R. POWELL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Espinoza, Associate Counsel