Citation Nr: 20051815 Decision Date: 08/05/20 Archive Date: 08/05/20 DOCKET NO. 16-54 587 DATE: August 5, 2020 ORDER Entitlement to a disability rating in excess of 30 percent for the Veteran’s bilateral hearing loss from August 14, 2015, to October 15, 2015 is denied Entitlement to a compensable disability rating for the Veteran’s bilateral hearing loss from October 15, 2015 until September 19, 2019 is denied. Entitlement to a disability rating in excess of 10 percent for the Veteran’s bilateral hearing loss from September 19, 2019 is denied. REFERRED The issue of secondary service connection for the Veteran’s benign paroxysmal vertigo was raised by the record in a medical record submitted in June 2020 but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over the issue, and it is referred to the AOJ for appropriate action. FINDINGS OF FACT 1. From August 14, 2015 to October 15, 2015, the audiometric evidence has shown the Veteran’s bilateral hearing acuity is manifested by no worse than Level IV in the right ear and Level XI in the left ear. 2. From October 15, 2015, to September 19, 2019, the audiometric evidence has shown the Veteran’s bilateral hearing acuity is manifested by no worse than level I in the right ear and Level III in the left ear. 3. As of September 19, 2019, the audiometric evidence has shown the Veteran’s bilateral hearing acuity is manifested by no worse than Level IV in the right ear and Level V in the left ear. CONCLUSIONS OF LAW 1. The criteria for entitlement to a disability rating in excess of 30 percent from August 14, 2015 to October 15, 2015 have not been met. 38 U.S.C. §§ 1115, 5107; 38 C.F.R. §§ 4.7, 4.85, 4.86. Diagnostic Code 6100. 2. The criteria for entitlement to a compensable disability rating from October 15, 2015 until September 19, 2019 have not been met. 38 U.S.C. §§ 1115, 5107; 38 C.F.R. §§ 4.7, 4.85, 4.86. Diagnostic Code 6100. 3. The criteria for entitlement to a disability rating in excess of 10 percent from September 19, 2019 have not been met. 38 U.S.C. §§ 1115, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.85, 4.86. Diagnostic Code 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Navy from July 1962 to July 1966. This matter comes before the Board of Veterans Appeals (Board) on appeal from a November 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). This claim was previously remanded by the Board in December 2018 for an additional VA examination. During development, the bilateral hearing loss rating was increased to 10 percent, effective September 19, 2019. Thus, the appeal has resulted in staged ratings and all periods remain on appeal. The matter has since returned to the Board for further consideration. 1. Entitlement to a rating in excess of 30 percent from August 14, 2015 to October 15, 2015 is denied. 2. Entitlement to a compensable rating from October 15, 2015 until September 19, 2019 is denied. 3. Entitlement to a disability rating in excess of 10 percent from September 19, 2019 is denied. The Veteran has been assigned a 30 percent rating for his service-connected bilateral hearing loss from August 14, 2015 to October 15, 2015, a noncompensable rating from October 15, 2015 to September 19, 2019, and a 10 percent rating thereafter. He contends that the ratings assigned do not adequately reflect the severity of his hearing loss during this period. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) in 38 C.F.R Part 4. The Rating Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 4.1 (2020). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more readily approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. Where entitlement to compensation has been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where an appeal is based on an initial rating for a disability, however, evidence contemporaneous with the claim and the initial rating decision are most probative of the degree of disability exiting when the initial rating was assigned and should be the evidence “used to decide whether an original rating on appeal was erroneous.” Fenderson v. West, 12 Vet. App. 119, 126 (1999). In either case, if later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, staged ratings may be assigned for separate periods of time. Fenderson, 12 Vet. App at 126; Hart v. Mansfield, 21 Vet. App. 606 (2007) (noting that staged ratings are appropriate whenever the factual findings show distinct time periods in which a disability exhibits symptoms that warrant different ratings). The appropriate disability rating for hearing impairment is determined under the criteria in 38 C.F.R. §§ 4.85 and 4.86. The Rating Schedule provides a table for rating purposes (Table VI) to determine a Roman numeral designation (I through XI) for hearing impairment, based on testing by a state-licensed audiologist, including puretone thresholds and speech discrimination (Maryland CNC test). See 38 C.F.R. § 4.85. Where there is an exceptional pattern of hearing impairment as defined in 38 C.F.R. § 4.86, the rating may be based solely on puretone threshold testing. See 38 C.F.R. § 4.85, Table VIa. One exceptional pattern of hearing impairment occurs when the puretone thresholds in each of the four frequencies (1,000, 2000, 3000, and 4000 Hertz) are 55 decibels or greater. Another occurs when the puretone threshold at 1000 Hertz is 30 decibels or less, and the threshold at 2000 Hertz is 70 decibels or more. See 38 C.F.R. § 4.86(a), (b). Table VII is used to determine the rating assigned by combining the Roman numeral designations for hearing impairment of each ear. 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 the puretone threshold average. Table VIa will be used where the examiner certifies that use of the speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, or when indicated under the provisions of § 4.86. 38 C.F.R. § 4.85. Ratings for hearing impairment are derived by the mechanical application of the Rating Schedule to the numeric designations assigned after audiometry evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345 (1992). An August 2015 private audiological examination found puretone thresholds in decibels as: 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz Average Right 25 25 30 35 50 35 Left 35 50 65 80 105 75 The average puretone thresholds were 35 decibels in the right ear and 75 decibels in the left ear. Speech audiometry revealed speech recognition ability of 72 percent in the right ear and 8 percent in the left ear. The Board finds that this examination results in a Roman Numeral designation of Level IV in the right ear and Level XI in the left ear under the standard evaluation outlined in Table VI. Together, these result in a 30 percent evaluation under Table VII. 38 C.F.R. § 4.85, Table VII. An October 15, 2015 VA audiological examination found puretone thresholds in decibels as: 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz Average Right 10 15 15 30 45 26 Left 15 35 55 75 100+ 66 The average puretone thresholds were 26 decibels in the right ear and 66 decibels in the left ear. Speech audiometry revealed speech recognition ability of 96 percent in the right ear and 84 percent in the left ear. At that time, the Veteran reported that he had difficulty hearing speech, especially in his left ear. The Board finds that this examination results in a Roman Numeral designation of Level I in the right ear and Level III in the left ear under the standard evaluation outlined in Table VI. Together, these result in a noncompensable evaluation under Table VII. 38 C.F.R. § 4.85, Table VII. Additionally, the Veteran underwent a private examination in February 2017, as well as two VA examinations in April 2017 and April 2018. However, all of these examinations were inadequate for rating purposes. The February 2017 and April 2018 examinations did not include word recognition test results utilizing the Maryland CNC testing list, while the April 2017 results had poor inter-test consistency. A September 19, 2019 VA audiological examination found puretone thresholds in decibels as: 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz Average Right 25 35 35 50 55 44 Left 25 35 35 40 50 40 The average puretone thresholds were 44 decibels in the right ear and 40 decibels in the left ear. Speech audiometry revealed speech recognition ability of 68 percent in the right ear and 60 percent in the left ear. At that time, the Veteran reported that he had difficulty hearing certain voice. In his Post Remand Brief filed on May 12, 2020, this was further clarified to state that the Veteran cannot hear female voices specifically. The Veteran also mentioned that his hearing loss had a significant impact on his ability to function in an occupational environment. The examiner’s opinion stated that “with proper hearing and/or adaptive devices, the Veteran has no work restrictions for hearing loss or tinnitus.” The Board finds that this examination results in a Roman Numeral designation of Level IV in the right ear and Level V in the left ear under the standard evaluation outlined in Table VI. Together, these result in a 10 percent evaluation under Table VII. 38 C.F.R. § 4.85, Table VII. The Board finds that from August 14, 2015, to October 15, 2015, a rating in excess of 30 percent is not warranted for bilateral hearing loss. The August 2015 private examination results in a Roman Numeral designation of Level IV in the right ear and Level XI in the left ear. Together, these result in a 30 percent evaluation. 38 C.F.R. § 4.85, Table VII. From October 15, 2015, to September 19, 2019, a compensable rating is not warranted for bilateral hearing loss. The October 15, 2015 VA examination results in a Roman Numeral designation of Level I in the right ear and Level III in the left ear. Together, these result in a noncompensable evaluation. Id. From September 19, 2019 onward, a rating in excess of 10 percent is not warranted for bilateral hearing loss. The September 19, 2019 VA examination results in a Roman Numeral designation of Level IV in the right ear and Level V in the left ear. Together, these result in a 10 percent evaluation. Id. The Board notes that the Veteran has been assigned staged ratings, which reflect the Veteran’s disability picture as established by the totality of the evidence throughout the appeal period. Such staged ratings address both the worsening and improvement of a condition that would necessitate a greater or lesser disability rating when shown in distinct time periods by the evidence of record. See Singleton v. Shinseki, 23 Vet. App. 376, 380 (2010). The Veteran, via his representative in the May 2020 brief, maintained that the hearing tests referenced above do not adequately portray the severity of his condition. He asserted that he cannot hear female voices and that his disability has a significant impact on his ability to function in an occupational environment. At his VA examinations, the Veteran also reported having difficulty hearing others, particularly when there was background noise. Lay persons are competent to provide opinions on some medical issues. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). However, in this case, such an opinion falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n. 4 (Fed. Cir. 2007). To the extent that the Veteran asserts that his hearing loss is more severe than currently evaluated, while he is competent to describe that he has difficulty hearing, he is not competent to report that his hearing acuity is of sufficient severity to warrant a certain percent evaluation under VA’s tables for rating hearing loss disabilities because such an opinion requires medical expertise, which he does not possess. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau, 492 F.3d 1372. Indeed, even after considering such contentions as to the effects of the disability on his daily life such as difficulty hearing female voices, difficulty hearing people when there is background noise, and an impact on his ability to function in an occupational environment, the Board finds that the criteria for a rating in excess of 10 percent are not met. See Lendenmann, supra (assignment of disability rating for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered). Additionally, while the Veteran has reported decreased hearing acuity and difficulty understanding conversational speech, “when a claimant’s hearing loss results in an inability to hear or understand speech or to hear other sounds in various contexts, those effects are contemplated by the schedular rating criteria.” Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017). While the Board is sympathetic to the Veteran’s assertions that his bilateral hearing loss is worse than reflected in the ratings currently assigned, subsequent rating criteria are definitive and provide for a precise result based on audiometric test results. There is nothing to show that either the October 2015 or the September 2019 examination was inadequate or conducted in an environment other than the normal audiology examination environment. His subjective report of difficulty hearing unfortunately cannot be the basis for an evaluative rating. The Board is bound to apply the VA Rating Schedule, under which the rating criteria are defined by audiometric test findings involving hearing acuity in a controlled laboratory environment. As a result, the Board finds the results of the October 2015 and September 2019 VA examinations to be more probative than the lay evidence, and the Veteran’s request for higher ratings for his hearing loss must be denied. In reaching the above decision, the Board has considered the benefit-of-the-doubt doctrine; however, this doctrine is only invoked where there is an approximate balance of evidence which neither proves nor disproves a claim. In this case, the preponderance of the evidence is against the Veteran’s claim. Therefore, the benefit-of-the-doubt doctrine is not applicable. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Caroline Fleming Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Gabrielle Ongies, 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.