Citation Nr: 22016294 Decision Date: 03/21/22 Archive Date: 03/21/22 DOCKET NO. 17-53 751 DATE: March 21, 2022 ORDER Entitlement to an initial compensable evaluation, prior to September 17, 2019, for bilateral hearing loss is denied. Entitlement to a rating in excess of 20 percent, from September 17, 2019, to November 16, 2019, for bilateral hearing loss is denied. Entitlement to a rating in excess of 30 percent from November 16, 2019 is denied. Entitlement to a total disability rating based on individual unemployability is remanded. FINDINGS OF FACT 1. For the appeal period prior to September 17, 2019, the Veteran had no worse than Level V hearing acuity in the left ear and Level I hearing acuity in the right ear. 2. For the appeal period from September 17, 2019, to November 16, 2019, the Veteran had no worse than Level VI hearing acuity in the left ear and Level IV hearing acuity in the right ear. 3. As of November 16, 2019, and thereafter, the Veteran had no worse than Level VI hearing acuity in the left ear and Level VI hearing acuity in the right ear. CONCLUSION OF LAW The criteria for an initial compensable rating prior to September 17, 2019, in excess of 20 percent, from September 17, 2019, to November 16, 2019, and in excess of 30 percent thereafter 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 FINDINGS AND CONCLUSION The Veteran served on active duty from August 1975 to August 1979 and from April 1980 to April 1983. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in April 2015 by the Department of Veterans Affairs (VA) Regional Office. In April 2019, the Board remanded the case for additional development. While on remand, in a July 2020 rating decision, an Agency of Original Jurisdiction (AOJ) granted an evaluation of 30 percent for bilateral hearing loss, effective November 16, 2019. In a subsequent August 2020 rating decision, an AOJ granted an increased evaluation of 20 percent for bilateral hearing loss, effective September 17, 2019. The case now returns for further appellate review. Entitlement to an initial compensable rating prior to September 17, 2019, an evaluation in excess of 20 percent from September 17, 2019, to November 16, 2019, and an evaluation in excess of 30 percent from November 16, 2019, and thereafter, for bilateral hearing loss. 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, supra; 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 appeal period before the Board begins on May 24, 2013, the date of service connection. Such disability is rated as noncompensable for the appeal period prior to September 17, 2019, as 20 percent disabling from September 17, 2019, to November 16, 2019, and as 30 percent disabling from November 16, 2019, and thereafter, 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 (a). In the latter case, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral, and that numeral will then be elevated to the next higher Roman numeral. 38 C.F.R. § 4.86 (b). Turning to the evidence of record, VA and private treatment records dated throughout the appeal period reflect the Veteran's reports of bilateral hearing loss and the use of hearing aids; however, such do not include audiometric findings that reflect a greater degree of hearing impairment than the March 2015 VA evaluation, for the period prior to September 17, 2019, greater than the September 2019 private examination, for the period from September 17, 2019, to November 16, 2019, and greater than the November 2019 VA examination, for the period from November 16, 2019, and thereafter. In this regard, in February 2015, the Veteran appeared for a private audiological examination. Audiological testing revealed the following pure tone thresholds in decibels: HERTZ 1000 2000 3000 4000 Average Left 30 75 75 70 63 Right 25 45 70 65 51 However, the audiological results show no indication that the Maryland CNC test was utilized. Consequently, as it is not clear that the Maryland CNC word list was utilized in such evaluation, it is inadequate for adjudication purposes and is afforded no probative weight. 38 C.F.R. § 3.385. In March 2015 the Veteran underwent a VA audiological examination. At such time, he reported difficulty understanding conversations in background noise, difficulty focusing with background noise, and a poor ability to converse over the telephone. Audiological testing revealed the following pure tone thresholds in decibels: HERTZ 1000 2000 3000 4000 Average Left 25 70 70 70 58 Right 20 45 70 65 50 Word recognition testing revealed speech recognition ability of 94 percent in the left ear and 94 percent in the right ear. An exceptional pattern of hearing was present for the left ear. No exceptional pattern of hearing loss was demonstrated related to the right ear. These audiometry test results equate to Level II hearing in the left ear and Level I hearing in the left ear pursuant to Table VI. However, as the Veteran exhibited an exceptional pattern of hearing loss in the left ear, such resulted in Level V hearing pursuant to Table VIA. Applying the percentage ratings for hearing impairment in Table VII, such impairment results in a noncompensable rating. In June 2015, a private audiologist conducted an audiological examination on the Veteran. Audiological testing revealed the following pure tone thresholds in decibels: HERTZ 1000 2000 4000 Left 30 80 70 Right 30 50 70 Upon reviewing the June 2015 audiogram, the Board observes that no pure tone threshold was recorded for 3000 Hertz. Further, there was no indication that the Maryland CNC test was utilized. Consequently, as it is not clear that the Maryland CNC word list was utilized in such evaluation, it is inadequate for adjudication purposes and is afforded no probative weight. 38 C.F.R. § 3.385. Per the April 2019 Remand, the Board directed that any relevant outstanding VA treatment records be obtained, and that the Veteran be afforded another audiological examination wherein all pure tone threshold values and Maryland Speech Recognition scores are indicated. In September 2019, the Veteran underwent a private audiological examination with audiologist G.H. At that time, the Veteran reported having significant hearing issues for over thirty years. He reported having great difficulty understanding conversational speech an many situations, particularly when there is noise in the background. He indicated he has to turn his phone, radio and television volumes much higher than normal in order to understand and, even then, he only understands a portion. Audiological testing revealed the following pure tone thresholds in decibels: HERTZ 1000 2000 3000 4000 Average Left 25 80 80 80 66 Right 35 75 85 85 70 Word recognition testing revealed speech recognition ability of 82 percent in the left ear and 80 percent in the right ear. An exceptional pattern of hearing loss was demonstrated related to the left ear. No exceptional pattern of hearing loss was demonstrated related to the right ear. These audiometry test results equate to Level IV hearing in the left ear and Level IV hearing in the right ear pursuant to Table VI. However, as the Veteran exhibited an exceptional pattern of hearing loss in the left ear, such resulted in Level VI hearing pursuant to Table VIA. Applying the percentage ratings for hearing impairment in Table VII, such impairment results in a 20 percent rating. According to a July 2020 letter from audiologist, G.H., during the September 2019 private audiological examination, the Maryland CNC Word list was utilized. The Veteran underwent another a VA audiological examination in November 2019. Audiological testing revealed the following pure tone thresholds in decibels: HERTZ 1000 2000 3000 4000 Average Left 30 75 80 80 66 Right 30 70 80 85 66 Word recognition testing revealed speech recognition ability of 80 percent in the left ear and 84 percent in the right ear. An exceptional pattern of hearing loss was demonstrated related to both ears. These audiometric test results equate to Level IV hearing in the left ear and Level III hearing in the right ear utilizing Table VI. However, as the Veteran exhibited an exceptional pattern of hearing loss in both ears, such resulted in Level VI hearing in the left ear and Level VI hearing pursuant to Table VIA. Applying the percentage ratings for hearing impairment in Table VII, such impairment results in a 30 percent rating. An additional private report from the same audiologist dated January 2020 is also associated with the claims file. Audiological testing revealed the following pure tone thresholds in decibels: HERTZ 1000 2000 3000 4000 Average Left 25 80 80 80 66 Right 35 75 85 85 70 Word recognition testing revealed speech recognition ability of 82 percent in the left ear and 80 percent in the right ear. An exceptional pattern of hearing loss was demonstrated related to the left ear. No exceptional pattern of hearing loss was demonstrated related to the right ear. These audiometry test results equate to Level IV hearing in the left ear and Level IV hearing in the right ear pursuant to Table VI. However, as the Veteran exhibited an exceptional pattern of hearing loss in the left ear, such resulted in Level VI hearing pursuant to Table VIA. Applying the percentage ratings for hearing impairment in Table VII, such impairment results in a 20 percent rating which does not warrant a rating in excess of 30 percent for the period on and after November 2019. To the extent that the Veteran contends 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, such as difficulty hearing people, the television, and radio, is not competent to report that his hearing acuity is of sufficient severity to warrant a compensable or increased 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. See 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 U.S. 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 work 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 additional staged ratings under Fenderson, supra, are appropriate for the Veteran's service-connected bilateral hearing loss; however, the Board finds that his symptomatology has been stable throughout each period on appeal. Therefore, assigning additional staged ratings for such disability is not warranted. Further, neither he nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record, in regard to the initial rating claim adjudicated herein. Doucette, supra. Therefore, the Board finds that a compensable rating prior to September 17, 2019, an evaluation in excess of 20 percent from September 17, 2019, to November 16, 2019, and an evaluation in excess of 30 percent from November 16, 2019, and thereafter, for bilateral hearing loss not warranted. Accordingly, the evidence is persuasively against the claim. As there is not an approximate balance of positive and negative evidence, the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND The Board is cognizant of the ruling of the United States Court of Appeals for Veterans Claims (Court) in Rice v. Shinseki, 22 Vet. App. 447 (2009). In Rice, the Court held that a claim for a TDIU due to service-connected disability either expressly raised by the Veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. The Board finds that the issue of entitlement to a TDIU has been raised by the record and is remanded for further development. The matter are REMANDED for the following action: 1. Complete any development necessary regarding the claim of entitlement to a TDIU and adjudicate the claim. S. Sorathia Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Spielmann, Jill F. 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.