Citation Nr: 21000019 Decision Date: 01/04/21 Archive Date: 01/04/21 DOCKET NO. 13-26 874 DATE: January 4, 2021 ORDER An initial compensable rating for bilateral hearing loss (previously rated as right ear hearing loss) is denied. FINDING OF FACT For the entire appeal period, the Veteran’s bilateral hearing loss is manifested by no worse than Level I hearing in the right ear and no worse than Level III hearing in the left ear. CONCLUSION OF LAW The criteria for an initial compensable rating for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1968 to December 1970. This matter comes to the Board of Veterans’ Appeals (Board) from rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO) in January 2011 which, in pertinent part, granted service connection for right ear hearing loss and assigned a noncompensable rating, and in January 2020, which granted service connection for left ear hearing loss and assigned a noncompensable rating. As such was combined with the noncompensable rating for his right ear hearing loss, the issue has been recharacterized as reflected on the title page. In February 2018 and July 2020, the Board remanded the case for additional development and it now returns for further appellate review. Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. All reasonable doubt will be resolved in the claimant’s favor. 38 C.F.R. § 4.3. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Separate ratings can be assigned for separate periods based on the facts found - a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. The Veteran seeks an initial compensable rating for bilateral hearing loss, which has been evaluated as noncompensable (0 percent) as of March 11, 2009, the date of service connection, pursuant to 38 C.F.R. § 4.85, Diagnostic Code 6100. In this regard, ratings of hearing loss range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of speech discrimination tests combined with the average hearing threshold levels as measured by pure tone audiometry tests in the frequencies 1000, 2000, 3000, and 4000 cycles per second. To rate the degree of disability for service-connected hearing loss, the Rating Schedule has established eleven auditory acuity levels, designated from level I, for essentially normal acuity, through level XI, for profound deafness. 38 C.F.R. § 4.85(h), Table VI. In order to establish entitlement to a compensable rating for hearing loss, it must be shown that certain minimum levels of the combination of the percentage of speech discrimination loss and average pure tone decibel loss are met. The assignment of disability ratings for hearing impairment is derived by a mechanical application of the Rating Schedule to the numeric designations assigned after audiometric evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). The criteria for rating hearing impairment use controlled speech discrimination tests (Maryland CNC) together with the results of pure tone audiometry tests. These results are then charted on Table VI, or Table VIA in exceptional cases as described in 38 C.F.R. § 4.86, and Table VII, as set out in the Rating Schedule. 38 C.F.R. § 4.85. An exceptional pattern of hearing loss occurs when the pure tone threshold at 1000, 2000, 3000, and 4000 Hertz is 55 decibels or more, or when the pure tone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz. 38 C.F.R. § 4.86. The Veteran was afforded a VA audiological examination in January 2011 to ascertain the nature and etiology of his claimed bilateral hearing loss. At such time, he complained of hearing loss in both ears. Further, he reported he had a problem hearing in the presence of background noise and needed to turn the TV and radio louder in order to hear them. Pure tone thresholds in decibels at the tested frequencies of 500, 1000, 2000, 3000, and 4000 Hz were 25, 35, 35, 30, and 40, respectively, in the right ear and were 10, 25, 35, 25, and 30, respectively, in the left ear. The examiner noted that the pure tone threshold average in the right ear was 35 decibels, and it was 29 decibels in the left ear, and diagnosed the Veteran with bilateral sensorineural hearing loss at 4000 Hz. Word recognition testing revealed speech recognition ability of 94 percent bilaterally. These audiometry test results equate to Level I hearing in both ears. Applying the percentage ratings for hearing impairment found in Table VII, Level I hearing in both ears results in a noncompensable rating. VA treatment records also indicate the Veteran had audiogram and word recognition testing at audiology sessions in February 2009, June 2014, and August 2016. In February 2009, the examiner noted that the Veteran had bilateral mild to moderate sensorineural hearing loss at 250 hertz to 8 kilohertz. Word recognition score was 76 percent. In June 2014, the examiner noted that the Veteran had bilateral borderline normal hearing at 250 hertz to 3 kilohertz, sloping to a mild/moderate sensorineural hearing loss at 4 to 8 kilohertz. Word recognition score was 92 percent. In August 2016, the examiner noted that the Veteran had bilateral normal hearing at 250 hertz to 3 kilohertz, sloping to a mild sensorineural hearing loss at 4 to 8 kilohertz. Word recognition score was 92 percent. However, as noted in the July 2020 remand, it was unclear whether the AOJ reviewed the audiograms and the word recognition tests associated with these three audiology sessions. Further, as the audiograms and the word lists for the word recognition tests had not been made part of the record, the case was remanded in order to have such associated with the Veteran’s file, which was accomplished in September 2020. Unfortunately, the February 2009, June 2014, and August 2016 audiology records were found to be incomplete. Further, they do not indicate that the Maryland CNC word list was utilized in performing such testing. Consequently, such evaluations are inadequate for rating purposes. 38 C.F.R. § 4.86. Nonetheless, VA treatment records reflect the Veteran reported worsening hearing in June 2014, and in August 2016, he reported his wife thought his hearing loss had worsened, but he felt his hearing loss to be stable. July 2019 VA treatment records reflect the Veteran reported no changes in hearing loss. The Veteran was most recently afforded a VA audiological examination in January 2020. At such time, he reported that he needed to ask people to repeat themselves more often. Pure tone thresholds in decibels at the tested frequencies of 1000, 2000, 3000, and 4000 Hz were 45, 55, 50, and 55, respectively, in the right ear and were 30, 45, 50, and 55, respectively, in the left ear. The examiner noted that the pure tone threshold average in the right ear was 51.25 decibels, and it was 45 decibels in the left ear. Word recognition testing revealed speech recognition ability of 92 percent in the right ear and 80 percent in the left ear. These audiometry test results equate to Level I hearing in the right ear and Level III hearing in the left ear. Applying the percentage ratings for hearing impairment found in Table VII, Level I hearing in the right ear combined with Level III hearing in the left ear results in a noncompensable rating. To the extent the Veteran contends that his bilateral hearing loss is more severe than currently evaluated, the Board observes that the Veteran, while competent to report symptoms capable of lay observation, to include difficulty hearing, communicating, and understanding conversation, to include with background noise, is not competent to report that his hearing acuity is of sufficient severity to warrant a compensable rating under VA’s tables for rating hearing loss disabilities because such an opinion requires medical expertise (training in evaluating hearing impairment), which he has not been shown to possess. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Charles v. Principi, 16 Vet. App. 370 (2002); Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Despite the foregoing, the Board acknowledges the Veteran’s aforementioned reports of the difficulties associated with his bilateral hearing loss. However, even after considering such contentions as to the effects of the disability on his daily life, the Board finds the criteria for a compensable evaluation are not met. See Lendenmann, supra. In this regard, in Doucette v. Shulkin, 28 Vet. App. 366 (2017), the United States Court of Appeals for Veterans Claims held that the rating criteria for hearing loss contemplate the functional effects of decreased hearing and difficulty understanding speech in an everyday environment as these are the effects that VA’s audiometric tests are designed to measure. The Veteran has not otherwise described functional effects that are considered exceptional, or that are not otherwise contemplated by the assigned evaluation. Id. Thus, his complete disability picture is compensated under the rating schedule. The Board has also considered whether staged ratings under Hart, supra, are appropriate for the Veteran’s service-connected bilateral hearing loss; however, the Board finds that his symptomatology has been stable throughout the appeal period. Therefore, assigning staged ratings for such disability is not warranted. Further, neither the Veteran nor his representative have raised any other issues, nor have any other issues been reasonably raised by the record, in regard to the initial rating claim adjudicated herein. See Doucette, supra. Therefore, the Board finds that an initial compensable rating for bilateral hearing loss is not warranted. In reaching such determination, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran’s claim. Therefore, the benefit of the doubt doctrine is not applicable in the instant appeal and his initial rating claim must be denied. See 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. MARTIN B. PETERS Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. M. Kelly, 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.