Citation Nr: 20020003 Decision Date: 03/18/20 Archive Date: 03/18/20 DOCKET NO. 14-23 724 DATE: March 18, 2020 ISSUE Entitlement to an initial compensable rating for a bilateral hearing loss disability. ORDER Entitlement to an initial compensable rating for a bilateral hearing loss disability is denied. FINDING OF FACT The Veteran's service-connected bilateral hearing loss disability is, at worst, productive of level II hearing acuity in the right ear and Level III hearing acuity in the left ear. CONCLUSION OF LAW The criteria for entitlement to a compensable disability rating for the Veteran's service-connected bilateral hearing loss disability have not been met or approximated. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.321, 4.7, 4.85, Diagnostic Code (DC) 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Air Force from October 1962 to September 1966, and was awarded the National Defense Service Medal, among other decorations. This case comes before the Board of Veterans’ Appeals (the Board) from an August 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran had a hearing before the undersigned Veterans Law Judge (VLJ) in September 2017. A transcript of that proceeding has been associated with the claims file. This matter was previously before the Board in February 2018. In that decision, the Board granted service connection for the Veteran’s right ear hearing loss disability and remanded the Veteran’s claims for 1) entitlement to an initial compensable rating for a left ear hearing loss disability, and 2) entitlement to service connection for paresthesia of the jaw, specifically for the purpose of scheduling VA examinations. The VA examinations did take place. The Board finds that VA has substantially complied with the Board's remand directives, to the extent possible. See Stegall v. West, 11 Vet. App. 268 1998) (holding that a remand confers on the claimant, as a matter of law, the right to compliance with the remand order). The Board notes that a subsequent December 2019 rating decision granted entitlement to service connection for cranial nerve V palsy claimed as (paresthesia of the jaw) and assigned a 10 percent evaluation. The Veteran did not submit a NOD (Notice of Disagreement) with regards to the evaluation nor file a new claim for an increased evaluation. As such, the claim is no longer before the Board. The filing of a NOD is mandatory to confer jurisdiction upon the Board. See 38 C.F.R. §§ 20.200, 20.201 (2016); see also Percy v. Shinseki, 23 Vet. App. 37, 44 (2009). Because the Board has granted service connection for the Veteran’s right ear hearing loss disability as discussed above, the Board has characterized the issue on appeal as entitlement to an initial compensable rating for a bilateral hearing loss disability. The Board will review the evidence of record to determine whether an initial compensable rating is warranted during the entire period on appeal for the Veteran’s service-connected right ear and left ear hearing loss disability. This case has been advanced on the docket pursuant to 38 C.F.R. § 20.900 (c) (2018). Increased Ratings Entitlement to an initial compensable disability rating for a bilateral hearing loss disability. The Veteran contends that he is entitled to an increased rating for his bilateral hearing loss disability. See August 2013 NOD. The Veteran also contends that his left ear hearing loss disability has worsened since his last VA examination. See September 2017 Hearing Transcript, pgs. 8-9. 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. 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. In cases where the original rating assigned is appealed, as is the case with the Veteran's claims of entitlement to higher evaluations for the bilateral hearing loss consideration must be given to whether a higher rating is warranted at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). 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). 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). If the evidence for and against a claim is in equipoise, the claim will be granted. 38 C.F.R. § 4.3 (2013). 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. Hearing Loss A rating for bilateral hearing loss is determined by a mechanical application of the rating schedule to the numeric designations assigned based on audiometric test results. Lendenmann v. Principi, 3 Vet. App. 345 (1992). Under the rating criteria, the basic method of rating bilateral hearing loss 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. 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 (2018). There is an alternative method of rating hearing loss in defined instances of exceptional hearing loss. In such exceptional cases, the Roman numeral designation for hearing loss of an ear may be based only on pure tone threshold average, using Table VIA, or from Table VI, whichever results in the higher Roman numeral. 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. The higher Roman numeral determined from Table VI or VIA, will then be elevated to the next higher Roman numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86. Turning to the audiological examinations of record in the evaluation of the Veteran’s claim. The Veteran was afforded a VA audiological examination in July 2012 to determine the nature, etiology and severity of the Veteran’s bilateral hearing loss disability. The audiometric results were as follows: Right Ear Hertz 500 1000 2000 3000 4000 6000 8000 Ave. Hz. 25 15 45 50 55 65 65 41 Left Ear Hertz 500 1000 2000 3000 4000 6000 8000 Ave. Hz. 15 20 60 55 60 60 65 49 Speech audiometry results using the Maryland CNC were 88 percent for the right ear and 92 percent for the left ear. The Veteran's hearing impairment was manifested by Level II hearing acuity in the right ear and Level I hearing acuity in the left ear. In this case, neither of the Veteran's ears meet the criteria for exceptional patterns of hearing impairment under 38 C.F.R. § 4.86 (a) or (b) and therefore will be evaluated according to 38 C.F.R. § 4.85. Applying Table VII, DC 6100, these results are consistent with a noncompensable disabling rating. 38 C.F.R. § 4.85. Addressing the functional impact of the Veteran’s bilateral hearing loss, the VA examiner noted that the Veteran’s hearing loss did not impact the ordinary conditions of his daily life. See July 2012 VA audiological examination., pg. 9. The Veteran was afforded a VA examination in November 2019 to determine the current severity of his bilateral hearing loss disability pursuant to the Board’s remand directives, which considered the Veteran’s assertion that his left ear hearing loss disability specifically had worsened since the last VA examination. The November 2019 audiometric results were as follows: Right Ear Hertz 500 1000 2000 3000 4000 6000 8000 Ave. Hz. 25 40 60 60 65 85 70 56.25 Left Ear Hertz 500 1000 2000 3000 4000 6000 8000 Ave. Hz. 30 40 60 65 70 70 75 58.75 Speech audiometry results using the Maryland CNC were 88 percent for the right ear and 90 percent for the left ear. The Veteran's hearing impairment was manifested by Level II hearing acuity in the right ear and Level III hearing acuity in the left ear. The Boards observes that while these results do show that the Veteran’s left ear hearing loss worsened since the last July 2012 examination, these results are consistent with a noncompensable disabling rating. 38 C.F.R. § 4.8, Table VII, Diagnostic Code 6100. The Board notes that neither of the Veteran's ears meet the criteria for exceptional patterns of hearing impairment under 38 C.F.R. § 4.86 (a) or (b) and therefore will be evaluated according to 38 C.F.R. § 4.85. Once again, applying Table VII, DC 6100, this equates to a noncompensable disability rating. With regards to the functional impact the Veteran’s hearing loss has had on the conditions of his ordinary life, the VA examiner noted in the examination that the Veteran had difficulty understanding. See November 2019 VA Audiological examination pg. 5. The Board also notes that the Veteran testified at his Board Hearing that he has difficulty understanding because of his hearing loss, and that he must turn the TV up very loud in order to hear. The Veteran further testified that he is “really at a loss” without his hearing aids. See September 218 Board Hearing Transcript, pgs. 4-7. The Board does fully acknowledge the impact the Veteran’s service-connected bilateral hearing loss disability has had on the ordinary conditions of his daily life. The Board points out however that rating a hearing loss disability involves the mechanical application of rating criteria to the results of specified audiometric studies. The Board is bound to apply the VA rating schedule, under which the rating criteria are defined and limited by audiometric findings. This criteria measures hearing acuity directly in a controlled laboratory environment. There are no probative objective audiometric evaluations to the contrary. See 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100. All potentially applicable codes have been considered in this case and there is no basis to assign a compensable during the entire period on appeal for the Veteran’s bilateral hearing loss disability. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). In summary, the Board finds the July 2012 and November 2019 VA examinations discussed above adequate in assessing the level of severity of the Veteran’s bilateral hearing loss disability. Neither the Veteran nor his representative have identified any other outstanding medical records that reflect the severity of his hearing loss disability. The Board has considered all relevant evidence of record. Therefore, the Board finds that that the preponderance of the evidence is against assigning a compensable disability rating for the Veteran's bilateral hearing loss disability during the period on appeal. 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, 36970 (2017). As the preponderance of the evidence is against the assigning of an increased rating for a bilateral hearing loss disability, the benefit-of-the-doubt doctrine is inapplicable. 38 C.F.R. § 4.3. For these reasons, the claim is denied. Michael A. Pappas Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Little, 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.