Citation Nr: 21062095 Decision Date: 10/06/21 Archive Date: 10/06/21 DOCKET NO. 17-10 262 DATE: October 6, 2021 ORDER Entitlement to an evaluation in excess of 10 percent for bilateral hearing loss is denied. FINDING OF FACT Throughout the appellate period, the Veteran's hearing loss has manifested by no more than a Level V hearing loss in his right ear and a Level IV hearing loss in his left ear. CONCLUSION OF LAW The criteria for an evaluation in excess of 10 percent for bilateral hearing loss have not been met at any time during the appellate period. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 4.1 4.7, 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from January 1979 to June 1995. These matters come before the Board of Veterans' Appeals (Board) on appeal from a July 2016 rating decision by the agency of original jurisdiction (AOJ) of the United States Department of Veterans Affairs (VA). This issue was previously before the Board in September 2019 at which time it was remanded. A June 2020 rating decision granted an increased evaluation of 10 percent effective March 28, 2016, the date of receipt of the claim. As this represents a partial grant of the benefit sought, the issue of entitlement to an increased evaluation in excess of 10 percent remains on appeal. Duty to Assist With respect to the Veteran's claims decided herein, VA has met all statutory and regulatory notice and duty-to-assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. Neither the Veteran nor his representative has advanced any procedural arguments in relation to VA's duty to notify and assist. See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015) (holding that "absent extraordinary circumstances...we think it is appropriate for the Board and the Veterans Court to address only those procedural arguments specifically raised by the veteran...."). Increased Rating 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; 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). Separate ratings may be assigned for separate periods of time based on the facts found, however. This practice is known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119, 126 - 127 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). A layperson is generally not capable of opining on matters requiring medical knowledge. If the evidence for and against a claim is in equipoise, the claim will be granted. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107 (West 2002); 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. Evaluations of defective hearing range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of a controlled speech discrimination test (Maryland CNC) together with the average hearing threshold level measured by pure tone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hertz). To evaluate the degree of disability from service-connected defective hearing, the rating schedule establishes 11 auditory hearing acuity levels designated from Level I, for essentially normal hearing acuity, through Level XI, for profound deafness. 38 C.F.R. § 4.85, Tables VI and VII, Diagnostic Code 6100. Disability ratings for hearing loss are derived from a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). The decibel loss and speech discrimination ranges designated for each level of hearing impairment in Tables VI and VIA were chosen in relation to clinical findings of the impairment experienced by veterans with certain degrees and types of hearing disability, as per the regulatory history of 38 C.F.R. § 4.85 and § 4.86. Functional impairment due to hearing loss that is compounded by background or environmental noise is a disability picture that is considered in the current schedular rating criteria. Complaints related to actual functional impairment are therefore factored into the criteria as applied. Although 38 C.F.R. § 4.86 provides an alternative method of evaluation for exceptional patterns of hearing impairment, the evidence in this case does not meet the requisite criteria. Thus, use of Table VIA in determining the Roman numeral designations for the Veteran's bilateral hearing loss is not appropriate, and only Table VI will be used. See 38 C.F.R. §§ 4.85, 4.86. After review of the evidence of record, the Board finds that an evaluation in excess of 10 percent for bilateral hearing loss is not warranted at any time during the period under review. The Veteran submitted May 2015 and June 2016 private audiograms which revealed hearing loss. However, these tests did not include controlled speech discrimination using the Maryland CNC test. Therefore, these examinations were not adequate for rating purposes. The Veteran underwent a VA hearing loss examination in June 2016. The audiogram showed puretone thresholds, in decibels, as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 25 25 30 55 34 LEFT 25 25 30 55 34 Speech audiometry revealed speech recognition ability of 94 percent in the right ear and of 94 in the left ear. Applying these results to Table VI in 38 C.F.R. § 4.85, hearing loss in the right and left ears are each assigned a numeric designation of Level I. Where hearing loss is at Level I in both ears a noncompensable rating is assigned under Table VII. 38 C.F.R. § 4.85. The Veteran asserted that there was a wide disparity between the findings of the VA examination and his private June 2016 examination. The Board remanded the issue in September 2019 for a new VA hearing loss examination to determine the current severity of the Veteran's hearing loss. The Veteran underwent a VA hearing loss examination in December 2019. The audiogram showed thresholds, in decibels, as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 50 40 35 60 46.25 LEFT 45 35 45 55 45 Speech audiometry revealed speech recognition ability of 62 percent in the right ear and of 72 in the left ear. Applying these results to Table VI in 38 C.F.R. § 4.85, hearing loss in the right ear is assigned a numeric designation of Level V and hearing loss in the left ear is assigned a numeric designation of Level IV. Where hearing loss is at Level IV in the better ear and Level V in the poorer ear, a 10 percent rating is assigned under Table VII. 38 C.F.R. § 4.85. The Veteran and his representative have requested scheduling of a new AV audio examination to obtain current findings, based on the age of the evidence of record. However, the duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. See VAOPGCPREC 11-95. A new examination is appropriate when there is an assertion (and indication) of an increase in severity since the last examination. See 38 C.F.R. § 3.159; see also Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); VAOPGCPREC 11-95 (1995). Here, the Veteran has not alleged worsening of his hearing loss since his last examination. He states only that the evaluation assigned is inadequate. In the absence of an allegation or showing of worsening of the disability, no updated examination findings are needed. The Board has considered the Veteran's complaints regarding the impact of hearing loss on his daily life, but as noted above, the assignment of disability ratings for hearing impairment is primarily derived from a mechanical formula based on levels of puretone threshold average and speech discrimination. Lendenmann, 3 Vet. App. 345. The functional effects of hearing loss on his daily life activities and occupational functioning were discussed by the Veteran at his VA examination. See 38 C.F.R. § 4.10; Martinak v. Nicholson, 21 Vet. App. 447, 455-56 (2007). The Veteran is noted to have reported difficulty hearing conversation; however, this is reflective of the types of functional difficulty that would be expected to be caused by his recorded levels of hearing loss. See Doucette v. Shulkin, 28 Vet. App. 366 (2018). Accordingly, the examinations of record are sufficiently in compliance with the provisions of VA regulations, and are afforded great probative value in determining the Veteran's level of hearing impairment. The most probative medical evidence as to the nature of the Veteran's hearing loss are the audiometric findings, and those discussed above reveal that the Veteran's hearing loss does not warrant a rating in excess of the 10 percent disability evaluation assigned. In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine; the preponderance of the evidence is against the Veteran's claim, and the doctrine is not applicable. 38 U.S.C. § 5107(b). WILLIAM H. DONNELLY Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Margaret M. Lunger, 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.