Citation Nr: 20004797 Decision Date: 01/23/20 Archive Date: 01/21/20 DOCKET NO. 17-53 986 DATE: January 23, 2020 ORDER Entitlement to an increased evaluation in excess of 10 percent for bilateral hearing loss is denied. FINDING OF FACT Throughout the period on appeal, the Veteran’s hearing impairment has been no worse than a Level III impairment on the right and a Level V impairment on the left. CONCLUSION OF LAW Throughout the period on appeal, the criteria for an evaluation in excess of 10 percent for bilateral hearing loss have not been met or approximated. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.85, Diagnostic Code 6100, 4.86 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1949 to January 1953. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. The Board remanded the issues on appeal for additional development in March 2019. The directives having been substantially complied with, the matter again is before the Board. D’Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268 (1998). When a Veteran files a claim for an increased rating, he is presumed to be seeking the maximum benefit under any applicable theory, including TDIU. See generally Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001); Rice v. Shinseki, 22 Vet. App. 447 (2009). In light of this principle, entitlement to special monthly compensation (SMC) has been found to be an inferable issue anytime a veteran is requesting increased benefits. Akles v. Derwinski, 1 Vet. App. 118 (1991). Here, the Board notes from VA medical records that the Veteran is retired, but he has not claimed that his service-connected disabilities prevent him from gaining and maintaining suitable employment. As such, the Board finds that a claim for TDIU is not inferred by the record. There is no further lay or medical evidence the Veteran is housebound in fact, requires aid and attendance, or that his disabilities result in loss of use of a limb, blindness or deafness. 38 U.S.C. §§ 1114(s), (l), (k); 38 C.F.R. § § 3.350(a), (b), (i). As such, the Board will not infer the issue of entitlement to SMC at this time. Veterans Claims Assistance Act of 2000 (VCAA) The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2018). The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015, cert. denied, U.S.C. Oct. 3, 2016) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board….to search the record and address procedural arguments when the [appellant] fails to raise them before the Board”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant’s failure to raise a duty to assist argument before the Board). The Board has reviewed all of the evidence in the Veteran’s claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board’s analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). Increased Schedular Rating for Bilateral Hearing Loss Disability evaluations are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) at 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 the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1 (2013); Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). That said, higher evaluations may be assigned for separate periods based on the facts found during the appeal period. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). This practice is known as staged ratings. Id. The determination of whether an increased disability rating is warranted is to be based on a review of the entire evidence of record and the application of all pertinent regulations. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Board considers not only the criteria of the currently assigned diagnostic codes, but also the criteria of other potentially applicable diagnostic codes. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. However, the evaluation of the same “disability” or the same “manifestations” under various diagnoses is not allowed. See 38 C.F.R. § 4.14. A claimant may not be compensated twice for the same symptomatology as “such a result would overcompensate the claimant for the actual impairment of his [or her] earning capacity.” See 38 U.S.C. § 1155 (2012); Brady v. Brown, 4 Vet. App. 203, 206 (1993). This would result in pyramiding, contrary to the provisions of 38 C.F.R. § 4.14. However, if a veteran has separate and distinct manifestations attributable to the same injury, they should be compensated under different diagnostic codes. See Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225, 230 (1993). 38 U.S.C. § 1154(a) requires that the VA give “due consideration” to “all pertinent medical and lay evidence” in evaluating a claim to disability benefits. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). When analyzing lay evidence, the Board should assess the evidence and determine whether the disability claimed is of the type for which lay evidence is competent. See Davidson, 581 F.3d at 1313; Kahana v. Shinseki, 24 Vet. App. 428 (2011). If the evidence for and against a claim is in equipoise, the claim will be granted. 38 C.F.R. § 4.3. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. 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. Evidence and Analysis Assignment of a disability rating for hearing loss is derived by a mechanical application of the rating schedule to the specific numeric designations assigned after audiology testing is completed. Lendenmann v. Principi, 3 Vet. App. 345 (1992). An 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. The rating schedule establishes 11 auditory hearing acuity levels based upon average puretone thresholds and speech discrimination. See 38 C.F.R. § 4.85. “Puretone threshold average” as used in Tables VI and VIa is the sum of the puretone thresholds at 1000, 2000, 3000 and 4000 Hertz and divided by four. This average is used in all cases (including those of § 4.86) to determine a Roman numeral designation from Tables VI and VIa. 38 C.F.R. § 4.85(d). Table VI, “Numeric Designation of Hearing Impairment Based on Puretone Threshold Average and Speech Discrimination,” is used to determine a Roman numeral designation (I through XI) for hearing impairment based on a combination of the percent of speech discrimination (horizontal rows) and the puretone threshold average (vertical columns). The Roman numeral designation is located at the point where the row and column intersect. 38 C.F.R. § 4.85(b). Table VIa, “Numeric Designation of Hearing Impairment Based Only on Puretone Threshold Average,” is used to determine a Roman numeral designation (I through XI) for hearing impairment based only on puretone threshold average. Table VIa is used when the examiner certifies that the use of the speech discrimination test is not appropriate due to language difficulties, inconsistent speech discrimination scores, etc., or when indicated under the provisions of § 4.86. 38 C.F.R. § 4.85(c). Table VII, “Percentage Evaluations of Hearing Impairment,” is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment in each ear. The horizontal rows represent the ear having better hearing and the vertical columns represent the ear having the poorer hearing. The percentage evaluation is located at the point where the row and the column intersect. 38 C.F.R. § 4.85(e). Special provisions apply in instances of exceptional hearing loss. See 38 C.F.R. § 4.86. When the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) are all 55 decibels or more, the adjudicator must determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa in 38 C.F.R. § 4.85, whichever results in the higher numeral. 38 C.F.R. § 4.86(a). Also, 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 is evaluated separately. 38 C.F.R. § 4.86(b). The Board notes the Veteran was originally granted service connection for bilateral hearing loss in a January 2011 rating decision, with a 10 percent rating effective from January 15, 2010. The Veteran did not appeal that decision. On April 7, 2015, the Veteran made a claim for an increased rating for his bilateral hearing loss. The Board thus considers the relevant period to be from that date of claim. “The relevant temporal focus for adjudicating an increased-rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim.” Hart v. Mansfield, 21 Vet. App. 505, 509 (2007) (discussing 38 U.S.C. § 5110 and 38 C.F.R. § 3.400(o)). During the period on appeal, the Veteran was provided with two valid VA audiological examinations, in July 2015 and October 2019. The results of the earliest audiological examination in this period, the July 2015 VA examination, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 30 40 65 75 75 LEFT 30 45 75 105 90 Based on these results, the average puretone threshold was 64 decibels for the right ear and 79 decibels for the left ear. See 38 C.F.R. § 4.85(d). Speech recognition was 84 percent in the right ear and 84 percent in the left ear, as measured by the Maryland CNC test. Applying these values to Table VI, the result is a Level III Roman numeral designation for the right ear and a Level III for the left ear. As to functional impairment, the Veteran reported difficulty hearing with the effect of poor social interactions, to include listening to his television and carrying on conversations with people around him. The results of the August 2019 VA audiological examination were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 35 45 65 70 75 LEFT 40 50 75 100 90 Based on these results, the average puretone threshold was 64 decibels for the right ear and 79 decibels for the left ear. See 38 C.F.R. § 4.85(d). Speech recognition was 84 percent in the right ear and 80 percent in the left ear, as measured by the Maryland CNC test. Applying these values to Table VI, the result is a Level III Roman numeral designation for the right ear and a Level V for the left ear. As to functional impairment, the Veteran reported “social situations are impossible as conversation becomes noise” and that “watching TV is a nightmare as [he] can’t understand most of the dialogue.” In this case, the worst case audiological testing of record, which is the most recent examination of August 2019, reflects that the Veteran has a Level III hearing impairment in the right ear and a Level V hearing impairment in the left ear. When the Level III and Level V designations are mechanically applied to Table VII, the result is a 10 percent rating. 38 C.F.R. § 4.85; Lendenmann, 3 Vet. App. at 345. None of the results reported in the Veteran’s claims file meet the requirements for evaluation based on an exceptional pattern of impairment. 38 C.F.R. § 4.86(a)–(b). As noted previously, in addition to objective test results, the functional effects of a hearing disability must be discussed for an audiological examination report to be adequate. Martinak, 21 Vet. App. at 455. The VA examiner noted the Veteran reported difficulty hearing and the resulting effect of poor social interactions. Thus, the functional impact of the Veteran’s hearing loss was considered by the VA examiner. No other medical evidence concerning the Veteran’s bilateral hearing loss, specifically valid audiograms, is of record for the period on appeal. The Board does note that the private audiogram of October 2017, considered not valid for VA evaluation purposes because of the lack of a Maryland CNC speech discrimination test, still reflected very similar puretone thresholds as the two valid VA audiograms noted earlier. The Board has considered the Veteran’s lay statements, in which he contends difficulty hearing generally, and difficulty understanding speech during conversations. Further, as was indicated above, rating a hearing loss disability involves the mechanical application of rating criteria to the results of specified audiometric studies. Here, the objective medical evidence of record for the period on appeal consists of the two VA audiological examinations, which indicates that the Veteran’s hearing loss is at a compensable rating of 10 percent for the period on appeal. See 38 C.F.R. § 4.85. For these reasons, the Veteran’s claim for an increased rating in excess of 10 percent for bilateral hearing loss for this period is denied. All potentially applicable codes have been considered, and there is no basis to assign an evaluation in excess of the currently assigned rating for the period on appeal for the Veteran’s bilateral hearing loss. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). Based on the foregoing, the Board concludes that the criteria for a rating in excess of 10 percent for the Veteran’s bilateral hearing loss are not met or approximated for the period on appeal, and thus the appeal is denied. All evidence has been considered and there is no doubt to be resolved. See 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). (CONTINUED ON NEXT PAGE) Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369–70 (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). MICHAEL A. PAPPAS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Setter, 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.