Citation Nr: A20007326 Decision Date: 04/30/20 Archive Date: 04/30/20 DOCKET NO. 200218-62966 DATE: April 30, 2020 ORDER Entitlement to an increased rating for bilateral hearing loss, currently rated 10 percent disabling, is denied. FINDING OF FACT Audiometric testing reflects that the Veteran’s hearing loss is manifested by no more than Level IV hearing in his right ear and Level V in his right ear. CONCLUSION OF LAW The criteria for a rating higher than 10 percent for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.85, Diagnostic Code (DC) 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1961 to April 1963. On August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (to be codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA). This law creates a new framework for Veterans dissatisfied with VA’s decision on their claim to seek review. This decision has been written consistent with the new AMA framework. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2020 rating decision from the Department of Veterans Affairs Regional Office (RO). In that decision, the RO granted an increased rating of 10 percent for bilateral hearing loss, effective the September 25, 2019 date of claim. In February 18, 2020, the Veteran submitted a VA Form 10182 (Decision Review Request: Board Appeal (Notice of Disagreement)) in which he requested direct review of the evidence considered by the AOJ under the Appeals Modernization Act (AMA) framework. In cases such as this one in which direct review by the Board was selected, the evidentiary record before the Board is limited to the evidence of record at the time of the agency of original jurisdiction’s decision on the issue or issues on appeal. 38 U.S.C. § 7113(a); 38 C.F.R. § 20.301. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c). Increased Rating Disability ratings are determined by comparing a Veteran’s symptoms with criteria set forth in VA’s Schedule for Rating Disabilities, which are based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. The Veteran’s entire history is reviewed when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Staged ratings are also appropriate in any increased rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in this decision is, therefore, undertaken with consideration of the possibility that different ratings may be warranted for different time periods. Bilateral hearing loss For the following reasons, that the Veteran’s bilateral hearing loss does not meet or approximate the criteria for a rating higher than 10 percent at any time during the claim period, which begins one year prior to the date of claim. 38 U.S.C. § 5110(b)(3). Hearing loss is evaluated under 38 C.F.R. §§ 4.85, 4.86, DC 6100, Tables VI, VIA, and VII of VA’s rating schedule. The Rating Schedule provides a table for rating purposes (Table VI) to determine a Roman numeral designation (I through XI) for hearing impairment, established by a state-licensed audiologist, including a controlled speech discrimination test (Maryland CNC), and based upon a combination of the percent of speech discrimination and the puretone threshold average, which is the sum of the puretone thresholds at 1000, 2000, 3000, and 4000 Hertz divided by four. 38 C.F.R. § 4.85. Table VII is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment of each ear. The horizontal row represents the ear having the poorer hearing and the vertical column represents the ear having the better hearing. Id. On the December 2019 VA audiological examination, pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 45 60 65 75 61 LEFT 55 50 70 80 64 Maryland CNC speech recognition scores were 78 in the right ear and 72 in the left ear. Based on those results with the utilization of Table VI, the Veteran demonstrated Level IV hearing impairment in the right ear and Level V hearing impairment in the left ear. Applying the results to Table VII, a 10 percent disability rating is warranted for bilateral hearing loss. The Veteran contends that his current bilateral hearing loss presented a greater degree of impairment than currently assigned. He is competent to report the symptoms of his hearing disability and the Board has no legitimate basis to challenge the credibility of his contentions. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006). However, the assigned rating for hearing loss is determined by mechanically applying the rating criteria to certified test results. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). As the December 2019 audiological examination resulted in a 10 percent rating for bilateral hearing loss, higher disability ratings are not warranted for bilateral hearing loss. In Martinak v. Nicholson, 21 Vet. App. 447 (2007) the Court addressed a challenge to VA’s audiological testing practices, specifically, whether VA’s policy of conducting all audiometry testing of hearing-loss claimants in a sound-controlled room was valid. The Court also addressed the requirements for an adequate VA audiological examination report. The Court upheld VA’s policy of conducting audiometry testing in a sound controlled room. The Court also held that, in addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in his or her final report. In this case, the December 2019 VA examiner indicated that the Veteran’s hearing loss made it difficult following speech in quiet and in noise. The Veteran reported to the December 2019 VA examiner that the functional impact of his hearing loss included difficulty hearing speakers and this was recorded in the examination report. The examination report therefore complied with Martinak. In addition, the Veteran reported that he has an extremely difficult time following speech “in quiet and in noise.” The Veteran’s complaints of difficulty hearing and understanding individuals are contemplated by the schedular criteria for hearing loss and extraschedular consideration is therefore not warranted. Doucette v. Shulkin, 28 Vet. App. 366, 371-72 (2017) (difficulty in distinguishing sounds in a crowded environment, locating the source of sounds, understanding conversational speech, hearing the television, and using the telephone are each a manifestation of difficulty hearing or understanding speech, which are contemplated by the schedular rating criteria for hearing loss). Finally, in his February 2020 NOD, the Veteran appeared to challenge the calculation of his combined disability rating after the rating for his hearing loss was increased to 10 percent. He is now in receipt of ratings of 30 percent for asthmatic bronchitis, 10 percent for tinnitus, and 10 percent for hearing loss. 38 C.F.R. § 4.25 instructs that the disabilities will first be arranged in order of severity, beginning with the greatest disability and then combined with use of table I, the combined ratings table. This combined value will then be converted to the nearest number divisible by 10, and combined values ending in 5 will be adjusted upward. However, if there are three disabilities, the disabilities will also be arranged in the exact order of their severity and the combined value for the first two will be found as previously described for two disabilities, but their combined value, exactly as found in table I, will be combined with the degree of the third disability in order of severity. The combined value for the three disabilities will be found in the space where the column and row intersect, and if there are only three disabilities will be converted to the nearest degree divisible by 10, adjusting final 5's upward. Thus, the 30 and 10 percent ratings for asthmatic bronchitis and tinnitus are combined to 37, which when combined with the 10 percent for hearing loss is 43, which is rounded down to 40. Consequently, the 40 percent combined rating is proper under 38 C.F.R. § 4.25. The Board has considered the Veteran’s claim and decided entitlement based on the evidence. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record, with respect to his claim. See Doucette, 28 Vet. App. at 369-70 (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). For the foregoing reasons, a rating in excess of 10 percent for bilateral hearing loss is not warranted. 38 C.F.R. § 4.85, DC 6100. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board James R. Miller, 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.