Citation Nr: 19190876 Decision Date: 12/03/19 Archive Date: 12/03/19 DOCKET NO. 18-12 775 DATE: December 3, 2019 ORDER Entitlement to a compensable disability rating for bilateral hearing loss is denied. FINDING OF FACT The most probative evidence of record shows the Veteran’s hearing loss resulted in level II hearing acuity in the right ear and level I hearing acuity in the left ear. CONCLUSION OF LAW The criteria for a compensable disability rating for bilateral hearing loss have not been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. § § 3.102, 4.1, 4.3, 4.7, 4.85, 4.86. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from April 2003 to April 2008. This claim comes before the Board of Veterans’ Appeals (Board) on appeal of a May 2017 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). In August 2019, the Veteran testified during a video conference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. Increased Rating Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27. When rating the Veteran’s service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Separate higher or lower compensable evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as “staged” ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). Regulations require that where there is a question as to which of two evaluations is to be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The assignment of a particular diagnostic code to evaluate a disability is “completely dependent on the facts of a particular case.” See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual’s relevant medical history, the diagnosis, and demonstrated symptomatology. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). In evaluating the evidence in any given appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307, 310-11 (1999). In this regard, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). Entitlement to a compensable disability rating for bilateral hearing loss. The Veteran contends that he is entitled to an increased rating for his bilateral hearing loss. The Veteran is currently service connected at the 0 percent disability rating under DC 6100 (hearing loss). 38 U.S.C. § 4.86. Hearing loss disabilities are rated by application of a mechanical process that is explained here. Initially, VA must determine the Roman numerical designation for the degree of hearing impairment in each ear based upon a combination of the percent of speech discrimination and the pure tone threshold average. 38 C.F.R. § 4.85. In general, the Roman numerical designation is determined through application of 38 C.F.R. § 4.85 (h), Table VI. Under Table VI, the horizontal rows represent eight separate ranges of pure tone threshold averages, as demonstrated through audiometric testing for the frequencies at 1000, 2000, 3000, and 4000 Hertz. The average pure tone threshold is calculated by determining the sum of the pure tone thresholds demonstrated at the four frequencies and dividing that sum by four. The vertical columns under Table VI represent nine separate ranges of speech discrimination percentage, as determined through Maryland CNC testing. The Roman numerical designation of impaired efficiency is determined for each ear by intersecting the horizontal row appropriate for the calculated pure tone threshold average and the vertical column appropriate for the demonstrated percentage of speech discrimination. 38 C.F.R. § 4.85 (b). After the Roman numerical designation has been determined for each ear, VA then determines the appropriate disability rating through application of 38 C.F.R. § 4.85 (h), Table VII. Table VII is applied by intersecting the appropriate horizontal row (which represents the Roman numerical designation for the poorer ear) with the appropriate vertical column (which represents the Roman numerical designation for the better ear). 38 C.F.R. § 4.85 (e). The Veteran was provided with a VA audiological examination in May 2017. His reported puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 6000 8000 AVG (B-E) RIGHT 25 45 60 65 65 80 95 58.75 LEFT 40 45 55 65 50 65 85 53.75 Speech audiometry revealed speech recognition ability of 98 percent in the right ear and of 98 percent in the left ear. Applying the puretone threshold average and speech discrimination percentage to Table VI produces a numerical designation for the right ear of level II in the left ear and level I in the right ear. Applying the results from Table VI, entering the numeral designations of II for the right ear and I for the left ear to Table VII yields a disability rating of 0 percent under Diagnostic Code 6100. The Veteran received a private audiological examination in January 2017. His reported puretone threshold average, in decibels, was 45 in the right ear and 45 in the left ear. Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 96 percent in the left ear. Applying the puretone threshold average and speech discrimination percentage to Table VI produces a numerical designation for the right ear of level I in the left ear and level I in the right ear. Applying the results from Table VI, entering the numeral designations of I for the right ear and I for the left ear to Table VII yields a disability rating of 0 percent under Diagnostic Code 6100. The assignment of disability ratings for hearing loss is primarily based upon a mechanical application of the rating criteria, as explained, and applied in this decision. In this case, the clinical evidence of record, when mechanically applied to the rating criteria, simply does not show that a rating more than 0 percent is warranted. The Board notes that the Veteran raised concerns about the May 2017 VA audiological examination, citing the antiquated appearance of the examiner’s office and equipment. At the August 2019 hearing, the Veteran asked that the Board to exclusively rely on the private examinations obtained by the Veteran or provide an alternative VA examination. Despite the Veteran’s concerns, the May 2017 VA audiological examination showed a greater degree of hearing loss than the Veteran’s private examinations. Application of the VA audiological testing results to Table VI produces a level II numerical designation for the Veteran’s right ear. Application of the private audiological testing results produces a lower numerical designation of level I for the Veteran’s right ear. Unfortunately, as detailed above, both the private audiological testing results and VA audiological testing results yield a disability rating of 0 percent when applied to Table VII. To the extent that the Veteran contends that his bilateral hearing loss is more severe than reflected by his current disability ratings, the Board observes that the Veteran can attest to factual matters of which he has first-hand knowledge and understanding as a lay person, such as trouble hearing. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). However, he is not competent to state that his hearing acuity is of a severity sufficient to warrant a higher rating under VA’s tables for rating hearing loss disabilities because such an opinion requires medical expertise and knowledge that he has not been shown to possess. See Kahana v. Shinseki, 24 Vet. App. 428 (2011). Accordingly, the Board finds that the preponderance of the evidence is against the assignment of a rating higher than 0 percent for the Veteran’s bilateral hearing loss and the claim must be denied. This finding does not suggest that the Veteran does not have hearing loss, simply the nature and extent of the problem is within the 0 percent evaluation based on the criteria, nothing more. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable. See U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. E. VanValkenburg, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.