Citation Nr: 21012471 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 17-06 858 DATE: March 4, 2021 ORDER Entitlement to an increased rating in excess of 10 percent for hearing loss is denied. FINDING OF FACT The Veteran’s bilateral hearing loss manifests as Level IV hearing loss in the right ear and Level V hearing loss in the left ear. CONCLUSION OF LAW The criteria for entitlement to an increased disability rating in excess of 10 percent for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.385, 4.85, Diagnostic Code 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1958 to January 1979. This appeal is from a March 2016 rating decision. The claim in appellate status was received in February 2016. As an increased rating claim, the period under review for evidence of increase is from February 2015 to the present. See 38 C.F.R. § 3.400(o). In February 2020, the Veteran had a personal hearing before the undersigned VLJ. A transcript of the hearing is of record. The Board remanded the Veteran’s claim in May 2020 for a new VA examination based on evidence of increase since the prior VA examination. Increased Ratings Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. Disability ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38U.S.C. §1155; 38C.F.R. §4.1. Where there is a question as to which of two ratings applies, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower disability rating will be assigned. 38C.F.R. §4.7. In order to evaluate the level of disability and any changes in severity, it is necessary to consider the complete medical history of the veteran’s disability. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where entitlement to compensation has been established already and an increase in the disability rating is at issue, the veteran’s present level of disability is the question of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Staged disability ratings are appropriate in any increased disability rating claim where distinct time periods with different ratable symptoms can be identified in the evidence. The relevant focus for adjudicating an increased disability rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Hart v. Mansfield, 21 Vet. App. 505 (2007). In instances where the disability rating being appealed is the initial disability rating that was assigned with a grant of service connection, the entire appeal period is for consideration, and again, staged ratings may be assigned as warranted, based upon the facts found. See Fenderson v. West, 12 Vet. App. 119 (1999). When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in the veteran’s favor. 38C.F.R. §§3.102, 4.3. Once the evidence is assembled, the Board is responsible for determining whether the preponderance of the evidence is against the claim. If so, the claim is denied; if the evidence is in support of the claim or is in equal balance, the claim is allowed. 38U.S.C. §5107; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Entitlement to an increased rating in excess of 10 percent for hearing loss The Veteran is seeking an increased rating for his hearing loss. Under Diagnostic Code 6100, the assignment of disability ratings for service-connected 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). Evaluations for defective hearing range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled Maryland CNC speech discrimination test together with the average hearing threshold level as measured by puretone audiometry tests in the frequencies 1000, 2000, 3000, and 4000 Hertz (Hz). The Rating Schedule establishes eleven auditory acuity levels designated from Level I to Level XI for profound deafness. 38 C.F.R. § 4.85. In certain situations, the Rating Schedule provides for rating exceptional patterns of hearing impairment. 38 C.F.R. § 4.86. When the puretone thresholds at each of the four specified frequencies of 1000, 2000, 3000, and 4000 Hz are 55 decibels or more under 38 C.F.R. § 4.86 (a), or when the puretone thresholds are 30 decibels or less at 1000 Hz and 70 decibels or more at 2000 Hz under 38 C.F.R. § 4.86 (b), the Roman numeral designation for hearing impairment will be determined from either Table VI or Table VIA, whichever results in the higher numeral. In support of his claim, as noted by the Board in prior remand, the Veteran has submitted the results of a March 2020 private audiogram and speech recognition test. The private examination shows that a test other than the Maryland CNC was used. The results of this audiogram do not show an exceptional pattern of hearing loss or other basis for finding that the puretone threshold average alone may be used. The Board found this evidence of increase and was the basis of prior remand to obtain a contemporaneous examiantion, but as the Maryland CNC test was not used the results of this private audiogram cannot be used for rating purposes. During the appellate period, the Veteran underwent two VA examinations, one in March 2016 and one in September 2020 pursuant to the Board remand. In the March 2016 VA examination, the Veteran’s puretone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 45 65 80 85 LEFT 35 50 65 75 Speech audiometry using the Maryland CNC test revealed speech recognition ability of 88 percent in the right ear and 80 percent in the left ear. The examination resulted in puretone threshold average of 69 decibels for the right ear and 56 decibels for the left ear. The Veteran underwent a VA contracted hearing examination on September 2020. The Veteran’s puretone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 45 65 80 85 LEFT 35 50 65 75 Speech audiometry using the Maryland CNC test revealed speech recognition ability of 80 percent in the right ear and 72 percent in the left ear. The examination resulted in puretone threshold average of 69 decibels for the right ear and 56 decibels for the left ear. The purtone thresholds from the two audiograms are the same. Neither of the audiograms reflect an exceptional pattern of hearing loss. The results of the September 2020 audiogram show decreased results using the Maryland CNC test, and thus the Board further considers these results. Applying the results to Table VI, the findings yield a numeric designation of Level IV in right ear and Level V in the left ear. These numeric designations in combination correspond to a 10 percent rating under Table VII. Based on the foregoing, the Board concludes that the preponderance of the evidence is against a finding that the Veteran’s bilateral hearing loss more nearly approximates the criteria for an excess of 10 percent rating. Consideration has been given to the Veteran’s personal belief that a higher rating should be assigned. The Board has also carefully considered the Veteran’s testimony and the impact of this disability on the Veteran’s activities of daily living. The Board finds that the rating schedule contemplates the impact of reduced hearing acuity on functional ability and the record does reasonably raised issued not addressed by this schedular criteria. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) 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 contends that his hearing loss was 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 was 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. Accordingly, the assignment of an increased disability rating in excess of 10 percent for the Veteran’s bilateral hearing loss is not warranted. 38 C.F.R. § 4.85. The Board has considered the doctrine of reasonable doubt but concludes that it is not applicable because the balance of the evidence of record is against the Veteran’s claim. 38 U.S.C. § 5107. Nathaniel J. Doan Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Ottley III 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.