Citation Nr: 21042351 Decision Date: 07/12/21 Archive Date: 07/12/21 DOCKET NO. 19-32 643 DATE: July 12, 2021 ORDER Entitlement to an increased rating in excess of 10 percent for left ear hearing loss is denied. FINDING OF FACT 1. The most probative evidence of record shows the audiometric test results, at their worst, obtained during examination by a VA audiologist correspond to a numeric designation of no greater than I in the nonservice-connected right ear and XI in the service-connected left ear. CONCLUSION OF LAW 1. The criteria for entitlement to an increased disability rating in excess of 10 percent for left ear hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.383, 3.385, 4.85, Diagnostic Code 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1963 to October 1965. The matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2018 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ) in November 2020. The hearing transcript is of record. The Board remanded the claim in January 2021 for further development by the RO. The Board again remanded the claim in April 2021 for further development by the RO. Increased Rating Claims Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. The Schedule is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. When two evaluations are potentially applicable, VA will assign the higher evaluation when the disability more nearly approximates the criteria for the higher rating. 38 C.F.R. § 4.7. VA will resolve reasonable doubt as to the degree of disability in favor of the Veteran. 38 C.F.R. § 4.1. If the evidence for and against a claim is in equipoise, the claim will be granted. See 38 U.S.C. § 5107; 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. In accordance with 38 C.F.R. §§ 4.1, 4.2 and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the service-connected disabilities at issue. The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes. Moreover, the Board is of the opinion that this case presents no evidentiary considerations which would warrant an exposition of remote clinical histories and findings pertaining to the disability. Each disability is viewed in relation to its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). The Board notes that 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 concern. 38 C.F.R. §§ 4.1, 4.2 (2016); see also Francisco v. Brown, 7 Vet. App. 55 (1994). In Hart v. Mansfield, 21 Vet. App. 505 (2007), however, the Court held that "staged ratings" are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Also see Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). The evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. Section 4.14 does not preclude the assignment of separate evaluations for separate and distinct symptomatology where none of the symptomatology justifying an evaluation under one diagnostic code is duplicative of or overlapping with the symptomatology justifying an evaluation under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). Nonetheless, the assignment of a particular diagnostic code 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 current diagnosis and demonstrated symptomatology. Any change in a diagnostic code by VA must be specifically explained. Pernorio v. Derwinski, 2 Vet. App. 625 (1992). 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, 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. Owens v. Brown, 7 Vet. App. 429, 433 (1995). The Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that all of the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). 1. Entitlement to a rating in excess of 10 percent for left ear hearing loss The Veteran asserted that his hearing loss symptoms have increased since last VA examination, in June 2019. Under Diagnostic Code 6100 the rating assigned for hearing loss is determined by a mechanical application of the rating schedule, which is grounded on numeric designations assigned to audiometric examination results. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Specifically, evaluations of hearing impairment range from 0 to 100 percent based on organic impairment of hearing acuity. Auditory acuity is gauged by examining the results of controlled speech discrimination tests, together with the results of puretone audiometric tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hz). To evaluate the degree of disability, the rating schedule establishes 11 auditory acuity levels ranging from level I, for essentially normal acuity, through level XI, for profound deafness. 38 C.F.R. § 4.85 et. seq. Tables VI and VII as set forth following 38 C.F.R. § 4.85 are used to calculate the rating to be assigned. 38 C.F.R. § 4.85. Under 38 C.F.R. § 4.86, when the puretone threshold at each of the four specified frequencies (1,000, 2,000, 3,000, and 4,000 Hertz) is 55 decibels or more, Table VI or Table VIa is to be used, whichever results in the higher numeral. 38 C.F.R. § 4.86 (a). Additionally, when the puretone threshold is 30 decibels or less at 1,000 Hertz, and 70 decibels or more at 2,000 Hertz, Table VI or Table VIa is to be used, whichever results in the higher numeral. Thereafter, that numeral will be elevated to the next higher Roman numeral. 38 C.F.R. § 4.86(b). 38 C.F.R. § 4.85(c) also provides, in substance, that Table VIa will be used to determine a Roman numeral designation (I through XI) for hearing impairment based only on the puretone threshold average when the examiner certifies that use of the speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc. When impaired hearing is service connected in only one ear, then the nonservice-connected ear will be assigned a numeric designation of I unless the service-connected hearing loss is at least 10 percent disabling and there is hearing impairment in the nonservice-connected ear under 38 C.F.R. § 3.385. 38 U.S.C. § 1160(a)(3); 38 C.F.R. §§ 3.383 (a)(3), 4.85(f). If hearing in the service-connected ear is at least 10 percent disabling, then the service connected ear is rated as if both ears were service connected. 38 C.F.R. §§ 3.383(a). In the July 2015 VA examination, the Veteran's puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 10 10 15 25 LEFT 70 75 85 105+ 105+ The puretone threshold during this exam was 15 dB for the right ear and 93 dB for the left ear. Speech recognition testing using the Maryland CNC test revealed speech recognition score of 98 percent for the right ear, and 0 percent for the left ear. This result shows a level XI hearing loss in the service-connected left ear. When combined with level I hearing loss for the nonservice-connected right ear, these results are consistent with a 10 percent evaluation. In the October 2018 VA examination, the Veteran's puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 10 5 15 30 LEFT 75 70 90 105+ 105+ The puretone threshold during this exam was 15 dB for the right ear and 93 dB for the left ear. Speech recognition testing using the Maryland CNC test revealed speech recognition score of 98 percent for the right ear, and 0 percent for the left ear. This result shows a level XI hearing loss in the service-connected left ear. When combined with level I hearing loss for the nonservice-connected right ear, these results are consistent with a 10 percent evaluation. In the June 2019 VA examination, the Veteran's puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 10 15 20 30 LEFT 80 70 95 105+ 105+ The puretone threshold during this exam was 19 dB for the right ear and 94 dB for the left ear. Speech recognition testing using the Maryland CNC test revealed speech recognition score of 98 percent for the right ear, and 0 percent for the left ear. This result shows a level XI hearing loss in the service-connected left ear. When combined with level I hearing loss for the nonservice-connected right ear, these results are consistent with a 10 percent evaluation. In the February 2021 VA examination, the Veteran's puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 15 10 20 30 LEFT 85 80 95 105+ 105+ The puretone threshold during this exam was 18.75 dB for the right ear and 87.50 dB for the left ear. Speech recognition testing using the Maryland CNC test revealed speech recognition score of 100 percent for the right ear, and 0 percent for the left ear. This result shows a level XI hearing loss in the service-connected left ear. When combined with level I hearing loss for the nonservice-connected right ear, these results are consistent with a 10 percent evaluation. Based on the foregoing, the Board concludes that the preponderance of the evidence is against a finding that the Veteran's left ear hearing loss more nearly approximates the criteria for an excess of 10 percent rating. This is the same result when considering the exceptional pattern of hearing loss in the left ear. The results from the right ear all are of I Numeric Designation. Hearing loss in the right ear is not shown as defined by VA regulations, and therefore, consideration of 38 C.F.R. § 3.383 does not result in a higher 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 left ear 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. The January 2021 Board remand directives instructed the RO to consider whether referral is warranted for extraschedular consideration. The February 2021 supplemental statement of the case (SSOC) does not indicate that extraschedular was considered. The Board then remanded in April 2021 to obtain an advisory opinion from the Director, Compensation Service, regarding extra-schedular consideration for the Veteran's service-connected left ear hearing loss per the provisions of 38 C.F.R. § 3.321(b). Subsequently, in April 2021 the Director determined that an extraschedular left ear hearing loss was not warranted and the claim has been returned to the Board for adjudication. The Director of Compensation Service found, "It is worth noting that 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 is contemplated by the schedular rating criteria for hearing loss. See Doucette v. Shulkin, 28 Vet. App. 366. Further, in Long v. Wilkie No.16-1537, the CAVC affirmed that the Veteran's hearing loss, which included various symptoms and effects did not present an unusual or exceptional disability picture because the rating criteria reasonably described his disability level and symptomatology. The court rejected a "line-item" approach of comparing each symptom and effect to the diagnostic criteria in favor of a totality of factors inquiry, i.e, whether the veteran's disability picture as a whole presents an impairment that is so exceptional that the rating schedule is not capable of assessing it in the first instance. Extraschedular consideration is only applicable where conventional rating tools prove inadequate to evaluate a veteran's symptomatology due to its exceptional nature." The Board will proceed to review the claim on an extraschedular basis, as it has been reviewed in the first instance by the Director of Compensation Services. After a thorough review of the lay and medical evidence, the Board agrees with the Director and finds that entitlement to an extraschedular rating is not warranted. Importantly, in Doucette v. Shulkin, 28 Vet. App. 366, 369 (2017), it was noted that the Veteran's complaints in the present case of difficulty hearing are precisely the effects that VA's audiometric tests are designed to measure. Thus, those effects are contemplated by the schedular rating criteria. Additionally, even if the Veteran were experiencing hearing loss symptoms that were not contemplated by the rating schedule, there is no indication of any exceptional or unusual factors such as marked interference with employment or frequent periods of hospitalization. Further, the Veteran has not claimed, and the record does not reflect that he has been hospitalized due to his hearing loss. In short, the Veteran's credible statements regarding his hearing loss symptoms reinforce the conclusion that the Veteran's disability pattern was not unusual. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). Certainly, the Veteran's main complaint was reduced hearing acuity and clarity, which is contemplated by the rating assigned. See Rossy v. Shulkin, 29 Vet. App. 142, 145 (2017). As such, the preponderance of the evidence is also against a higher rating on an extraschedular basis. See 38 C.F.R. § 3.321; Thun v. Peake, 22 Vet. App. 111, 115 (2008). Therefore, the benefit-of-the-doubt doctrine is not applicable and an extraschedular rating for left ear hearing loss is not warranted. 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.