Citation Nr: 18112367 Decision Date: 06/19/18 Archive Date: 06/19/18 DOCKET NO. 14-29 288 DATE: June 19, 2018 ORDER The reduction in the rating for service-connected bilateral hearing loss from 50 percent disabling to 0 percent disabling, effective April 1, 2012, was proper. Prior to April 1, 2012, entitlement to a rating in excess of 50 percent for bilateral hearing loss disability is denied. From April 1, 2012, entitlement to a compensable rating for bilateral hearing loss disability is denied. FINDING OF FACT 1. By an August 2010 rating action, the RO notified the Veteran of a proposed reduction in the 50 percent disability rating for his service-connected bilateral hearing loss to 0 percent. 2. A January 2012 rating decision reduced the disability rating from 50 percent to 0 percent, effective April 1, 2012; the 50 percent rating was in effect for less than 5 years. 3. The medical evidence of record at the time of the reduction in rating showed actual improvement in the bilateral hearing loss disability. 4. For the period prior to April 1, 2012, the Veteran’s bilateral hearing loss was no worse than level VIII in each ear. 5. During the current period on appeal, the applicable evidence of record shows that the Veteran does not have a compensable level of bilateral hearing loss. CONCLUSION OF LAW 1. The reduction in the rating for bilateral hearing loss disability from 50 percent to 0 percent, effective April 1, 2012, was proper. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.105, 3.344, 4.7, 4.85, Diagnostic Code 6100 (2017). 2. Prior to April 1, 2012, the criteria for a rating in excess of 50 percent for bilateral hearing loss have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.7, 4.85, Diagnostic Code 6100 (2017). 3. From April 1, 2012, the criteria for a compensable disability rating for bilateral hearing loss have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.7, 4.85, Diagnostic Code 6100 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1969 to June 1971. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. In an August 2014 VA Form 9, the Veteran requested a Board hearing. However, in a March 2016 VA Form 9, the Veteran indicated he did not want a hearing. After a request to clarify the Veteran’s hearing request, the Veteran submitted a correspondence in May 2018 formally withdrawing his Board hearing request. Accordingly, the Board finds that the Veteran’s request for a hearing on the issues on appeal has been withdrawn. 38 C.F.R. § 20.704 (d). Duties to Notify and Assist VA provided the Veteran with 38 U.S.C. § 5103(a)-compliant notice in March 2010. The record also shows that VA has fulfilled its obligation to assist the Veteran in developing the claim, including with respect to VA examination of the Veteran. Neither the Veteran nor his representative has identified any deficiency in VA’s notice or assistance duties. See Scott v. McDonald, 789 F.3rd 1375 (Fed. Cir. 2015). Propriety of the reduction of the disability rating from 50 percent to 0 percent for bilateral hearing loss A Veteran’s disability will not be reduced unless an improvement in the disability is shown to have occurred. 38 U.S.C. § 1155. Procedurally, where a reduction in rating of a service-connected disability is considered warranted and the lower rating would result in a reduction or discontinuance of compensation payments currently being made, a rating proposing the reduction or discontinuance must be prepared setting forth all material facts and reasons. In addition, the RO must notify the Veteran that he has 60 days to present additional evidence showing that compensation should be continued at the present level. The Veteran is also to be informed that he may request a predetermination hearing, provided that the request is received by VA within 30 days from the date of the notice. If no additional evidence is received within the 60-day period and no hearing is requested, final rating action will be taken and the award will be reduced or discontinued effective the last day of the month in which a 60-day period from the date of notice to the Veteran expires. 38 C.F.R. § 3.105(e). In cases where a rating has been in effect for five years or more, the rating agency must make reasonably certain that the improvement will be maintained under the conditions of ordinary life even if material improvement in the physical or mental condition is clearly reflected. Kitchens v. Brown, 7 Vet. App. 320 (1995). A rating that has been in effect for five years or more may not be reduced on the basis of only one examination in cases where the disability is the result of a disease subject to periodic or episodic improvement. 38 C.F.R. § 3.344(a). The five-year period is calculated from the effective date of the rating to the effective date of the reduction. Brown v. Brown, 5 Vet. App. 413 (1993). If doubt remains, after according due consideration to all the evidence, the rating agency will continue the rating in effect. 38 C.F.R. § 3.344(b). The above requirements do not apply to ratings that have not continued for long periods of five years or more at the same level or to disabilities which have not become stabilized and are likely to improve. Rather, in such cases, reexaminations disclosing improvement, physical or mental, in those disabilities will warrant a rating reduction. 38 C.F.R. § 3.344(c). When an RO reduces a rating without following the applicable regulations, the reduction is void ab initio. Greyzck v. West, 12 Vet. App. 288 (1999). The Veteran’s bilateral hearing loss disability was properly reduced pursuant to the requirements of 38 C.F.R. § 3.105(e). The RO prepared a rating decision proposing the reduction in August 2010 setting forth the rationale of the proposed reduction. The RO then issued a rating decision in January 2012 reducing the rating effective May 1, 2012. Thus, the Veteran received proper notice and the benefit of other measures under 38 C.F.R. § 3.105(e). The 50 percent disability rating had been assigned by the RO in an April 2008 rating decision and was effective March 27, 2008. Thus, the rating had been in effect for less than five years and the provisions of 38 C.F.R. § 3.344 do not apply. In considering the propriety of a reduction, the Board must focus on the evidence of record available to the RO at the time the reduction was effectuated, although post-reduction medical evidence may be considered for the limited purpose of determining whether the condition has demonstrated actual improvement. Dofflemyer v. Derwinski, 2 Vet. App. 277 (1992). However, care must be taken to ensure that a change in an examiner’s evaluation demonstrates an actual change in the condition, and not merely a difference in the thoroughness of the examination or in descriptive terms, when viewed in relation to the prior disability history. The Veteran’s bilateral hearing loss disability has been rated under Diagnostic Code 6100. 38 C.F.R. § 4.85. Ratings for hearing loss are determined in accordance with findings obtained on audiometric evaluation. Ratings for hearing impairment range from 0 percent to 100 percent based on organic impairment of hearing acuity, as measured by the results of the controlled speech discrimination tests, together with the average hearing threshold level, as measured by pure tone audiometry tests in the frequencies 1000, 2000, 3000, and 4000 cycles per second. To evaluate the degree of disability from hearing impairment, the rating schedule establishes eleven auditory acuity levels designated from Level I for essentially normal acuity through Level XI for profound deafness. Diagnostic Code 6100. Hearing tests are to be conducted without hearing aids, and the results of the testing are applied to Table VI and Table VII. 38 C.F.R. § 4.85. When the puretone threshold at each of the four specified frequencies of 1000, 2000, 3000, and 4000 Hertz is 55 decibels or more, 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. Each ear will be evaluated separately. 38 C.F.R. § 4.86(a). When the puretone 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. That numeral will then be elevated to the next higher Roman numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86(b). Factual Background and Analysis An April 2008 rating decision increased the Veteran’s service-connected bilateral hearing loss evaluation from 0 percent to 50 percent, effective March 27, 2008, the date of the VA examination which reflected decreased hearing acuity sufficient to warrant 50 percent under Table VII. The March 2008 VA examination revealed that the hearing threshold levels in decibels were 70, 85, 95, and 100 in the right ear and 65, 85, 95, and 100 in the left ear at 1000, 2000, 3000, and 4000 Hertz respectively. The puretone average was 87.5 in the right and 86.25 in the left. Maryland CNC speech recognition score was 60 percent in the right ear and 68 percent in the left ear. Since the puretone thresholds for the left ear and right ear met the definition of an exceptional pattern of hearing impairment, application of Table VIa resulted in a numeric designation of VIII for both ears, which result in the higher numeral for the left ear and same numeral for right ear as compared to Table VI, warranting a 50 percent rating under Table VII. The Veteran stated that he experienced otalgia in both ears and positional vertigo occasionally. The Veteran’s primary concerns were speech understanding and tinnitus. A November 2009 VA treatment record noted the Veteran’s test reliability was poor when pure tone thresholds revealed an average of 40 dB in both the right and left ear with word recognition scores of 88 percent in both ears. These findings result in designation of Level I hearing in each ear based on application of the findings to Table VI, and warrant a 0 percent rating under Table VII. A December 2009 VA treatment record noted the Veteran had normal hearing thresholds in both ears from 250 Hz to 2000 Hz, moderate sensorineural hearing loss from 3000 Hz to 8000 Hz in the right ear, and mild to moderate sensorineural hearing loss from 3000 Hz to 8000 Hz in the left ear. Word recognition scores of 92 percent were noted for both ears. The provider noted that the Veteran’s hearing was essentially unchanged since February 2009. The Board notes that since puretone threshold averages were not provided, these hearing results will not be considered. A June 2010 VA examination revealed that the hearing threshold levels in decibels were 20, 35, 60, and 60 in the right ear and 20, 20, 45, and 50 in the left ear at 1000, 2000, 3000, and 4000 Hertz respectively. The puretone average was 43.75 in the right and 33.75 in the left. Maryland CNC speech recognition score was 94 percent in the right ear and 96 percent in the left ear. These findings result in designation of Level I hearing in each ear based on application of the findings to Table VI, and warrant a 0 percent rating under Table VII. The Veteran denied any history of ear surgery, ear infections, ear injury outside of the military, or family history of hearing loss. The examiner noted test reliability was considered average and that the Veteran had to be instructed that he must respond consistently in order to obtain accurate hearing thresholds. The examiner also noted that previous audiometric testing performed at the VA Loma Linda noted inconsistencies in patient responses. The VA examiner found there were no significant effects on usual daily activities or occupation. A September 2011 VA examination revealed that the hearing threshold levels in decibels were 25, 30, 55, and 60 in the right ear and 25, 20, 40 and 50 in the left ear at 1000, 2000, 3000, and 4000 Hertz respectively. The puretone average was 42 in the right and 34 in the left. Maryland CNC speech recognition score was 94 percent in both ears. These findings result in designation of Level I hearing in each ear based on application of the findings to Table VI, and warrant a 0 percent rating under Table VII. Regarding his hearing loss’ impact on his ordinary conditions of daily life, including ability to work, the Veteran reported having trouble hearing. He indicated that he had to turn the television volume higher and that he had to have people sit in front of him to hear. He stated that it bothered him a lot that he had to try to hear. The examiner noted VA audiological evaluations in November 2005 and October 2007 showed significant threshold decreased in both ears with a note of poor reliability. The examiner noted that these responses lead to suspect that results were questionable or some medical conditions attributed to these results. The examiner highlighted VA treatment records in February 2009 and December 2009 that indicated hearing results within normal limits 500 to 2000 Hz, moderate to moderately severe sensorineural hearing loss 3000 to 40000 Hz with excellent speech discrimination skills in the right and left ear. The examiner compared the examination results obtained that day to the results obtained in December 2009 and found there were no significant threshold shifts noted. The reduction in rating of the Veteran’s bilateral hearing loss disability was based on the November 2009 VA audiological evaluation and June 2010 and September 2011 VA examinations. As noted above the VA audiological evaluation and VA examinations showed findings resulting in a designation of Level I hearing in both ears based on application of the findings to Table VI, warranting a 0 percent rating. In considering the propriety of a reduction, the Board must focus on the evidence available to the RO at the time the reduction was effectuated. Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-82 (1992). The Veteran need not demonstrate that he is entitled to retain the higher evaluation; rather, it must be shown by a preponderance of the evidence that the RO’s reduction was warranted. See Brown v. Brown, 5 Vet. App. 413, 418 (1993); Kitchens v. Brown, 7 Vet. App. 320 (1995). In this case, the November 2009 VA audiological evaluation and June 2010 and September 2011 VA examinations objectively demonstrated that the preponderance of the evidence supported the reduction in the evaluation for hearing loss disability as compared to the March 2008 VA examination as there was a clear showing of improvement in both hearing threshold levels and speech discrimination scores and there is no reason to doubt the accuracy of the findings in the examination reports. The Board notes that although the Veteran is competent to report the symptoms such as worsening hearing, he is not competent to report that his hearing acuity is sufficient to warrant a higher evaluation under VA’s tables for rating hearing loss disabilities. Such an opinion requires medical expertise and testing. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Moreover, his reports alone do not negate the objective medical evidence, which clearly shows an improvement in his audiological test results, and thus an improvement in his bilateral hearing loss disability. This also occurred under the ordinary conditions of life, as the Veteran’s description of the perceived impact of his hearing loss has remained consistent over time. Given that the RO complied with the appropriate procedural protections and the preponderance of medical evidence of record supports the RO’s reduction, the Board finds that the reduction was proper. The preponderance of the evidence is consistent with a finding of improvement of the overall hearing loss disability, as reflected by the improvement in the Veteran’s hearing acuity thresholds and by the increase in the Veteran’s speech recognition scores at the time the reduction was effectuated. The rating reduction from 50 percent to 0 percent effective from April 1, 2012, was proper, and restoration of a rating of 50 percent for the Veteran’s hearing loss disability is therefore not warranted. 38 C.F.R. § 3.105(e). Increased Rating Disability ratings are determined by applying the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity resulting from disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The Board has been directed to consider only those factors contained wholly in the rating criteria. Massey v. Brown, 7 Vet. App. 204 (1994). However, the Board has been advised to consider factors outside the specific rating criteria in determining the level of occupational and social impairment. Mauerhan v. Principi, 16 Vet. App. 436 (2002). If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for the higher evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran’s condition. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When the veteran is requesting an increased rating for an established service-connected disability, the present disability level is the primary concern and past medical reports do not take precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). However, the most recent examination is not necessarily and always controlling; rather, consideration is given not only to the evidence as a whole but to both the recency and adequacy of examinations. Powell v. West, 13 Vet. App. 31 (1999). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis below is therefore undertaken with consideration of the possibility that different “staged” ratings may be warranted for different time periods. The terms mild, moderate, and severe are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are equitable and just. 38 C.F.R. § 4.6. Use of such descriptive terms by medical examiners, although an element of the evidence to be considered by the Board, is not dispositive of an issue. Such evidence must be interpreted in light of the whole recorded history, reconciling the evidence into a consistent picture so that the current rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2. Factual Background and Analysis In this case, VA received the Veteran’s claim for an increased rating for his bilateral hearing loss disability in December 2009. The Board notes that a May 8, 2009 Board decision denied the Veteran’s claim for increased rating for his bilateral hearing loss. Considering the Veteran did not appropriately appeal the decision, the May 8, 2009 Board decision is final and the Board will only look to medical evidence from December 2008 for the current increased rating claim. See Hazan v. Gober, 10 Vet. App. 511 (1997). Given the Board’s finding that the reduction in rating was proper, the Veteran’s bilateral hearing loss disability is rated at 0 percent from August 10, 2005 to March 26, 2008, 50 percent from March 27, 2008 to March 31, 2012, and 0 percent from April 1, 2012. As discussed earlier, the findings of the November 2009 VA audiological evaluation and June 2010 and September 2011 VA examinations all resulted in designation of Level I hearing in each ear based on application of Table VI, and warrant a 0 percent rating under Table VII. Consequently, a rating in excess of 50 percent for the period prior to April 1, 2012 is not warranted. Turning to the period from April 1, 2012, an April 2013 VA treatment record noted that puretone results showed mild sloping to severe sensorineural hearing loss in the right ear and mild sloping to moderate severe sensorineural hearing loss in the left ear. The Board notes that specific puretone threshold results were not provided. The Veteran was provided another VA examination in August 2014. Hearing test revealed that the hearing threshold levels in decibels were 50, 65, 85, and 90 in the right ear and 60, 65, 80, and 85 in the left ear at 1000, 2000, 3000, and 4000 Hertz respectively. The puretone average was 72.5 in both ears. Maryland CNC speech recognition score was 68 percent in the right ear and 66 percent in the left ear. These findings result in designation of Level VI hearing in right ear and Level VII in the left ear based on application of the reported findings to Table VI, and warrant a 30 percent rating under Table VII. The puretone thresholds for the left ear met the definition of an exceptional pattern of hearing impairment and application of Table VIa results in a lower numeric designation of V in the left ear. Since the right ear did not meet the definition of an exceptional pattern of hearing impairment, the right ear was designated Level VI based on Table VI. Regarding his hearing loss’ impact on his ordinary conditions of daily life, including ability to work, the Veteran reported that he had a hard time hearing people, that he had to face them and sometimes lost their voices. In an October 2014 VA examination opinion regarding the conflicting medical evidence, the examiner found that in light of conflicting audiological findings in March 2008, June 2010, September 2011, and August 2014, as well as examinations in September 2005, November 2005, October 2007, February 2009, December 2009, and April 2013, the examiner found that it was less likely than not that the most current evaluation results from August 2014 were considered valid. The examiner noted the Veteran’s test history was inconsistent amongst multiple audiological examinations, but also within each individual examination. The examiner highlighted that of all tests recorded in VA and VBMS records, only the September 2005 examination indicated having good reliability and that all other examinations indicated poor or fair reliability at the time of the tests. The examiner noted that the most recent audiometric data from August 2014 indicates elevated pure tone thresholds at the left ear when compared to speech reception threshold for the left ear and when comparing the 2014 audiometric results to previous test results from 2013 and 2011, there is a significant decline in hearing acuity which would only occur in the case of either non-organic component to the Veteran's responses or a transient medical condition. The examiner found that as tympanograms were Jerger Type A (within normal limits), and no conductive component measured, it was less likely than not that a temporary hearing loss was measured at the most recent evaluation. The examiner also found that acoustic reflexes measured at the most recent evaluation were also indicative of the possibly of non-organic contribution to test scores. Therefore, given the multiple inconsistencies listed above, the examiner found it was suggested that the Veteran's most recent hearing test in August 2014 not be used in determining rating for service connection. Rather, the examiner suggested that the Veteran be referred for additional testing through VES to encourage more accurate responses while being examined. The Veteran was provided another VA examination in November 2014. Hearing test revealed that the hearing threshold levels in decibels were 35, 40, 65, and 70 in the right ear and 35, 35, 60, and 70 in the left ear at 1000, 2000, 3000, and 4000 Hertz respectively. The puretone average was 53 in the right ear and 50 in the left ear. Maryland CNC speech recognition score was 86 percent in the right ear and 96 percent in the left ear. These findings result in designation of Level II hearing in right ear and Level I in the left ear based on application of the reported findings to Table VI, and warrant a 0 percent rating under Table VII. The examiner noted that results of the examination were more consistent with previous testing from 2010 and 2011 and that while 2010 and 2011 and the November 2014 evaluation did not represent an improvement in hearing when compared to 2008, they showed consistency amongst tests. The examiner found that given the consistency on these three examinations, it was opined that the 2008 evaluation included transient or non-organic results and that results of the November 2014 evaluation should be used for the purposes of determining service connection rating rather than the 2008 or August 2014 VA examination results. Regarding his hearing loss’ impact on his ordinary conditions of daily life, including ability to work, the Veteran reported that he had a hard time hearing people, that he had to face them and sometimes lost their voices. In a March 2016 VA treatment record, hearing tests revealed that the hearing threshold levels in decibels were 85, 95, 105, and 105+ in the right ear and 105, 105, 105+, and 105+ in the left ear at 1000, 2000, 3000, and 4000 Hertz respectively on first response. On second response, after re-instructions were given, the hearing threshold levels in decibels were 95, 90, 95, 100 in the right ear and 100, 100, 100, and 100 in the left ear at 1000, 2000, 3000, and 4000 Hertz respectively. On first response, the puretone average was 98+ in the right ear and 105+ in the left ear. On second response, the puretone average was 95 in the right ear and 100 in the left ear. Since the puretone thresholds for the left ear and right ear met the definition of an exceptional pattern of hearing impairment, application of Table VIa resulted in a numeric designation of X for the right ear and XI for the left ear, warrant a 90 percent rating under Table VII on first response and a numeric designation of IX for the right ear and X for the left ear, warrant a 70 percent rating under Table VII on second response. The provider noted that a determination of actual hearing loss could not be made on the test results. The provider noted that the results of the evaluation were consistent with a non-organic hearing loss because previous testing on November 2014 showed consistent test results much different than the March 2016 results. The provider noted that word recognition was not tested due to the responses being received and equipment limitation but indicated that after testing the Veteran, a biologic test was performed on the equipment to rule out any equipment malfunction. The provider noted that the March 2016 testing results were discussed with the Veteran and he was informed that due to the significant change in his hearing from his last test amplification could not be pursued until he was seen by an ENT. However, the provider found that based on the inconsistent test results received and the Veteran's ability to communicate unaided during the history interview, an ENT visit had been ruled out at the time. The provider noted the Veteran had a history of providing inconsistent test results during testing, and therefore recommended that he be re-tested by another provider at the clinic before pursuing any new amplification or referral to an ENT. After considering all the evidence, lay and medical, the Board finds that the weight of the competent and probative lay and medical evidence demonstrates that a compensable rating for the service-connected bilateral hearing loss is not warranted. The Board acknowledges the August 2014 VA examination and March 2016 VA treatment audiological evaluation results which would warrant 30 percent and 70 percent or 90 percent under Table VII respectively. However, the Board notes that the October 2014 and November 2014 VA examiner specifically opined that test results in August 2014 were not valid for rating purposes (not indicative of organic hearing loss or a result of a transient medical condition), and the puretone average and word recognition scores inappropriate. The examiner also indicated the Veteran’s hearing loss was not the type to fluctuate in severity. Specifically, the examiner noted tympanograms were Jerger Type A (within normal limits), and no conductive component measured, thus making it is less likely than not that a temporary hearing loss was measured at the August 2014 evaluation. Acoustic reflexes measured at the August 2014 evaluation were also indicative of the possibly of non-organic contribution to test scores. Regarding the March 2016 VA audiological evaluation results, the provider also indicated unreliable testing results. Instead, the provider found the results of the evaluation were consistent with a non-organic hearing loss and that word recognition was not tested due to the responses being received and equipment limitation. The provider noted the inconsistent test results received and the Veteran’s ability to communicate unaided during the history interview, as well as the Veteran’s history of providing inconsistent test results during testing. The Board also notes that the Veteran has not provided a contrary medical opinion indicating the reliability of the results from the August 2014 VA examination and the March 2016 VA treatment record. As such, the Board finds the August 2014 VA examination and March 2016 VA treatment audiological evaluation results cannot serve as a basis for an increased rating. The remaining results from the November 2009 VA audiological evaluation, the June 2010 VA examination, the September 2011 VA examination, and the November 2014 VA examination show the Veteran’s hearing thresholds warrant a 0 percent rating. There is no indication that the November 2009, June 2010, September 2011, and November 2014 results are unreliable or invalid. Instead, the November 2014 VA examiner specifically noted that results from the November 2014 audiological evaluation should be used for the purposes of determining service connection rating rather than 2008 or August 2014. In sum, the applicable evidence of record shows that the Veteran does not have a compensable level of bilateral hearing loss for the current period on appeal. The Board does not find evidence that the ratings assigned for bilateral hearing loss should be higher based on the facts found during the above-referenced period. Thus, the weight of the competent and probative lay and medical evidence of record is against a rating in excess of 50 percent prior to April 1, 2012 and is also against a compensable rating for bilateral hearing loss from April 1, 2012. 38 C.F.R. §§ 4.3, 4.7. THOMAS H. O'SHAY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Cheng, Associate Counsel