Citation Nr: 23014656 Decision Date: 03/10/23 Archive Date: 03/10/23 DOCKET NO. 17-28 320 DATE: March 10, 2023 ORDER Entitlement to an initial compensable rating for bilateral hearing loss is denied. FINDINGS OF FACT 1. The Veteran is incarcerated in a correctional institution and substantial efforts have been made to examine the Veteran under the circumstances. 2. The evidence of record shows that the Veteran's bilateral hearing loss is manifested by pure tone threshold averages and speech recognition scores corresponding to no more than level I hearing loss in the right ear and level I hearing loss in the left ear. CONCLUSION OF LAW The criteria for a compensable rating for bilateral hearing loss have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.85, 4.86 Diagnostic Code 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from March 1963 to April 1967. This matter comes before the Board of Veterans Appeals (Board) on appeal from a June 2015 rating decision by a VA Agency of Original Jurisdiction (AOJ). The Veteran timely perfected an appeal. See July 2015 Notice of Disagreement; April 2017 Statement of the Case; May 2017 VA Form 9. This matter has been previously considered by the Board and was remanded for further development. See February 2022 BVA Decision. All such development is complete, and the matter is again before the Board. 1. Compensable rating for bilateral hearing loss. The Veteran contends that he is entitled to a compensable rating for his service-connected bilateral hearing loss. Specifically, the Veteran contends that his hearing warrants a 10 percent rating. See May 2017 Form 9 at 2. A. Legal Criteria Disability ratings are determined by the application of the VA's Schedule for Rating Disabilities. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Ch. I, Part 4. Ratings for service-connected disabilities are determined by comparing the Veteran's symptoms with criteria listed in VA's Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. 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. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Where entitlement to compensation has been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where an appeal is based on an initial rating for a disability, however, evidence contemporaneous with the claim and the initial rating decision are most probative of the degree of disability existing when the initial rating was assigned and should be the evidence "used to decide whether an original rating on appeal was erroneous." See Fenderson v. West, 12 Vet. App. 119, 126 (1999). In either case, if later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, staged ratings may be assigned for separate periods of time. Id at 126; See Hart v. Mansfield, 21 Vet. App. 505 (2007) (noting that staged ratings are appropriate whenever the factual findings show distinct time periods in which a disability exhibits symptoms that warrant different ratings). When adjudicating an increased rating claim, the relevant time period for consideration is the time period one year before the claim was filed. Hart, 21 Vet. App. at 509. VA's duty to assist incarcerated veterans requires VA to tailor its assistance to meet the peculiar circumstances of confinement, as such individuals are entitled to the same care and consideration given to their fellow veterans. See 38 U.S.C. § 5107 (a); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991); Bolton v. Brown, 8 Vet. App. 185, 191 (1995). In the case of VA medical examinations, VA does not have the authority to require a correctional institution to release a Veteran so that VA can provide him the necessary examination at the closest VA medical facility. See, e.g., 38 U.S.C. § 5711. However, VA's duty to assist an incarcerated Veteran includes: (1) attempting to arrange transportation of the claimant to a VA facility for examination; (2) contacting the correctional facility and having their medical personnel conduct an examination according to VA examination work sheets; or (3) sending a VA or fee-basis examiner to the correctional facility to conduct the examination. See Bolton supra. The Veteran's service-connected bilateral hearing loss is assigned a noncompensable rating from August 23, 2005, under 38 C.F.R. § 4.124a, DC 6100. See June 2015 Rating Decision - Codesheet. As this appeal concerns entitlement to an initial claim, the Board will consider evidence submitted from the date of the claim, August 23, 2005. 38 C.F.R. § 3.400 (o)(2). Schedular Ratings for Hearing Loss In evaluating the extent of hearing loss, disability ratings are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are performed. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Hearing loss ratings range from noncompensable to 100 percent based on organic impairment of hearing acuity, as measured by controlled speech discrimination tests in conjunction with average hearing thresholds determined by puretone audiometric testing at frequencies of 1000, 2000, 3000 and 4000 cycles per second. "Puretone threshold average" is the sum of the puretone thresholds at 1000, 2000, 3000 and 4000 Hertz divided by four. This average is used in all cases (including those in §4.86) to determine the Roman numeral designation for hearing impairment from Table VI or VIa. 38 C.F.R. § 4.85, Diagnostic Code 6100. The rating schedule establishes eleven auditory acuity levels, designated from Level I for essentially normal hearing acuity, through Level XI for profound deafness. 38 C.F.R. § 4.85. The horizontal rows in Table VI (in 38 C.F.R. § 4.85) represent nine categories of the percentage of discrimination based on the controlled speech discrimination test. The vertical columns in Table VI represent nine categories of decibel loss based on the puretone audiometry test. The Roman numeral designation is located at the point where the percentage of speech discrimination and puretone threshold average intersect. See 38 C.F.R. §§ 4.85, 4.86. The Roman numeral designation for each ear is then used to determine the current level of disability based upon a pre-designated schedule. Table VII in 38 C.F.R. § 4.85. If impaired hearing is service-connected in only one ear, in order to determine the percentage evaluation, from Table VII, the nonservice-connected ear will be assigned a Roman numeral designation of I. 38 C.F.R. § 4.85 (f). The regulations also provide that in cases of exceptional hearing loss, i.e., when the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more, the Roman numeral designation will be determined for hearing impairment, separately, from either Table VI or Table VIa, whichever results in the higher numeral. 38 C.F.R. § 4.86. A Roman numeral designation will also be determined from either Table VI or Table VIa, whichever results in the higher numeral, when the puretone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz. That numeral will then be elevated to the next higher Roman numeral. B. Facts and Analysis In this case, no further attempts to afford the Veteran a VA examination are necessary. The record shows that the AOJ attempted obtain an examination for the Veteran to determine the extent of his hearing loss. Specifically, an AOJ vendor contacted the correctional facility and learned that the facility does not have a soundproof audio booth, which is required to discern the extend of the Veteran's hearing loss for application of DC 6100. See May 2022 C&P Exam. The AOJ also learned that the correctional facility is unable to transport the Veteran outside of the facility for examination. Id. Thus, under the circumstances, it is not possible to obtain a new examination of the Veteran's hearing loss. As such, the Board will address the matter on the record before it. The Veteran received private audiogram testing in July 2005. See June 2013 Medical Treatment Record Non-Government Facility. The examination showed puretone thresholds, in decibels, as follow: 1000 Hz 2000 Hz 3000 Hz 4000 Hz RIGHT 30 50 55 60 LEFT 30 40 50 55 The puretone threshold averages were 44 for the left ear and 49 for the right ear. Id at 8. The July 2005 audiogram did not use Maryland CNC word list and is therefore not adequate for rating purposes under 38 C.F.R. § 4.85(a). However, a VA examiner reviewed the July 2005 audiogram and noted the speech discrimination score using the Maryland CNC word list indicated 100 percent in both ears. From Table VI of 38 C.F.R. § 4.85, Roman Numeral I is determined for the right ear. From Table VI of 38 C.F.R. § 4.85, Roman Numeral I is determined for the left ear. A 0 percent rating is derived from Table VII of 38 C.F.R. § 4.85 by intersecting row I, the better ear, with column I, the poorer ear. An exceptional hearing pattern under 38 C.F.R. § 4.86 is not shown in this case. Although the Veteran contends that his hearing loss is more severe than the evaluation of record, the Board observes that the Veteran, while competent to report symptoms, is not competent to report that his hearing acuity is of sufficient severity to warrant a higher evaluation under VA's tables for rating hearing loss disabilities because such an opinion requires medical expertise (training in valuating hearing impairment), which he has not been shown to have. See Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Thus, the Board assigns the Veteran's evaluation of his hearing loss no probative weight. Based on the evidence cited above, during the entire period of appeal, the Veteran did not meet the criteria for a compensable rating for hearing loss. 38 C.F.R. § 4.85. Accordingly, the Veteran's claim for a compensable rating for hearing loss is denied. In concluding a higher rating is not warranted, the Board finds the benefit of the doubt doctrine is not applicable because there is not an approximate balance of evidence for and against the claim. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. See also Lynch v. McDonough, 999 F.3d 1391 (Fed. Cir. 2021). R. Costello Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Divis, Robert A. 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.