Citation Nr: 21006360 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 18-42 703A DATE: February 3, 2021 ORDER Entitlement to a compensable disability rating for bilateral hearing loss prior to October 8, 2020, and a disability rating in excess of 20 percent thereafter is denied. FINDINGS OF FACT 1. Prior to October 8, 2020, the most probative evidence of record shows the Veteran’s bilateral hearing loss resulted in level II hearing acuity in the right ear and level II hearing acuity in the left ear. 2. From October 8, 2020, the most probative evidence of record shows the Veteran’s bilateral hearing loss resulted in level VI hearing acuity in the right ear and level IV hearing acuity in the left ear. CONCLUSIONS OF LAW 1. Prior to October 8, 2020, the criteria for a compensable disability rating for bilateral hearing loss have not been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.85, 4.86. 2. From October 8, 2020, the criteria for a disability rating in excess of 20 percent for bilateral hearing loss have not been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.85, 4.86. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from June 1960 to December 1960. This claim comes before the Board of Veterans’ Appeals (Board) on appeal of a September 2016 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). In February 2020, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c); 38 U.S.C. § 7107(a)(2). As an initial matter, the Board notes that, during the pendency of the appeal, an October 2020 rating decision granted an increased disability rating of 20 percent for service-connected bilateral hearing loss, effective from October 8, 2020. As the claim for entitlement to an increased rating for bilateral hearing loss was not granted for the entire claims period or for a 100 percent disability rating, it is considered a partial grant and bifurcates the claim. Accordingly, an increased rating claim for bilateral hearing loss prior to October 8, 2020, and an increased rating claim for bilateral hearing loss from October 8, 2020, are both presently before the Board and will be addressed herein. Increased Rating Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27. When rating the Veteran’s service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Separate higher or lower compensable evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as “staged” ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). Regulations require that where there is a question as to which of two evaluations is to be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The assignment of a particular diagnostic code to evaluate a disability is “completely dependent on the facts of a particular case.” See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual’s relevant medical history, the diagnosis, and demonstrated symptomatology. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). In evaluating the evidence in any given appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307, 310-11 (1999). In this regard, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). Entitlement to a compensable disability rating prior to October 8, 2020, and a disability rating in excess of 20 percent thereafter. The Veteran contends that he is entitled to increased ratings for his bilateral hearing loss. The Veteran is currently service connected at a 20 percent disability rating under DC 6100 (hearing loss), effective October 8, 2020. 38 U.S.C. § 4.86. Prior to October 8, 2020, the Veteran’s hearing loss was rated as noncompensable. Hearing loss disabilities are rated by application of a mechanical process that is explained here. Initially, VA must determine the Roman numerical designation for the degree of hearing impairment in each ear based upon a combination of the percent of speech discrimination and the pure tone threshold average. 38 C.F.R. § 4.85. In general, the Roman numerical designation is determined through application of 38 C.F.R. § 4.85 (h), Table VI. Under Table VI, the horizontal rows represent eight separate ranges of pure tone threshold averages, as demonstrated through audiometric testing for the frequencies at 1000, 2000, 3000, and 4000 Hertz. The average pure tone threshold is calculated by determining the sum of the pure tone thresholds demonstrated at the four frequencies and dividing that sum by four. The vertical columns under Table VI represent nine separate ranges of speech discrimination percentage, as determined through Maryland CNC testing. The Roman numerical designation of impaired efficiency is determined for each ear by intersecting the horizontal row appropriate for the calculated pure tone threshold average and the vertical column appropriate for the demonstrated percentage of speech discrimination. 38 C.F.R. § 4.85 (b). After the Roman numerical designation has been determined for each ear, VA then determines the appropriate disability rating through application of 38 C.F.R. § 4.85 (h), Table VII. Table VII is applied by intersecting the appropriate horizontal row (which represents the Roman numerical designation for the poorer ear) with the appropriate vertical column (which represents the Roman numerical designation for the better ear). 38 C.F.R. § 4.85 (e). The Veteran was provided with a VA audiological examination in October 2020. His reported pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 6000 8000 AVG (B-E) RIGHT 30 35 70 90 90 80 70 71.25 LEFT 25 30 55 80 75 70 60 60 Speech audiometry revealed speech recognition ability of 68 percent in the right ear and of 76 percent in the left ear. Applying the pure tone threshold average and speech discrimination percentage to Table VI produces a numerical designation of level VI in the right ear and level IV in the left ear. Applying the results from Table VI, entering the numeral designations of VI for the right ear and IV for the left ear to Table VII yields a disability rating of 20 percent under Diagnostic Code 6100. The Veteran was also provided with a VA audiological examination in September 2017. His reported pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 6000 8000 AVG (B-E) RIGHT 15 30 55 85 85 75 70 64 LEFT 20 30 45 80 75 65 55 58 Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 96 percent in the left ear. Applying the pure tone threshold average and speech discrimination percentage to Table VI produces a numerical designation of level II in the right ear and level II in the left ear. Applying the results from Table VI, entering the numeral designations of II for the right ear and II for the left ear to Table VII yields a disability rating of 0 percent under Diagnostic Code 6100. The Veteran was also provided with a VA audiological examination in August 2016. His reported pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 6000 8000 AVG (B-E) RIGHT 20 25 45 45 85 90 95 50 LEFT 20 25 35 70 70 70 75 50 Speech audiometry revealed speech recognition ability of 82 percent in the right ear and of 84 percent in the left ear. Applying the pure tone threshold average and speech discrimination percentage to Table VI produces a numerical designation of level II in the right ear and level II in the left ear. Applying the results from Table VI, entering the numeral designations of II for the right ear and II for the left ear to Table VII yields a disability rating of 0 percent under Diagnostic Code 6100. The Board notes that the Veteran was also provided VA audiological testing in January 2020. Unfortunately, the examining audiologist noted that the tests were not adequate for rating purposes and stated that the testing results were consistent with the Veteran’s September 2017 VA examination for hearing loss. As discussed above, the Veteran was subsequently provided an adequate examination in October 2020 that clearly documented a significant worsening in the Veteran’s hearing loss. As detailed above, audiological testing yields disability ratings of 20 percent from October 8, 2020 and 0 percent prior to October 8, 2020. The assignment of disability ratings for hearing loss is primarily based upon a mechanical application of the rating criteria, as explained, and applied in this decision. In this case, the clinical evidence of record, when mechanically applied to the rating criteria, simply does not show that a rating more than 0 percent prior to October 8, 2020, and 20 percent thereafter is warranted. To the extent that the Veteran contends that his bilateral hearing loss is more severe than reflected by the assigned disability ratings, the Board observes that the Veteran can attest to factual matters of which he has first-hand knowledge and understanding as a lay person, such as trouble hearing. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). However, he is not competent to state that his hearing acuity is of a severity sufficient to warrant a higher rating under VA’s tables for rating hearing loss disabilities because such an opinion requires medical expertise and knowledge that he has not been shown to possess. See Kahana v. Shinseki, 24 Vet. App. 428 (2011). Accordingly, the Board finds that the preponderance of the evidence is against the assignment of a rating higher than 0 percent for the Veteran’s bilateral hearing loss prior to October 8, 2020, and higher than 20 percent thereafter; and the claims must be denied. This finding does not suggest that the Veteran does not have hearing loss, simply the nature and extent of the problem is within the assigned evaluations based on the criteria, nothing more. (Continued on the next page)   In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable. See U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. VanValkenburg, 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.