Citation Nr: 1303797	
Decision Date: 02/04/13    Archive Date: 02/08/13

DOCKET NO.  11-31 686	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Muskogee, Oklahoma


THE ISSUE

Entitlement to a higher compensable initial disability rating for bilateral hearing loss. 


REPRESENTATION

Appellant represented by:	Oklahoma Department of Veterans Affairs


ATTORNEY FOR THE BOARD

Patricia Veresink, Associate Counsel


INTRODUCTION

The Veteran had active service from August 1951 to March 1955.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma.   

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  38 U.S.C.A. § 7107(a)(2) (West 2002).


FINDINGS OF FACT

1.  The Veteran's hearing manifested by no more than Level IV hearing acuity in the right ear and Level II hearing acuity in the left ear with minimum speech recognition scores of 76 percent in the right ear and 84 percent in the left ear.

2.  The Veteran's functional impairment includes difficulty hearing and understanding conversations. 


CONCLUSION OF LAW

The criteria for a compensable disability rating for bilateral hearing loss have not been met or approximated.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.321, 4.7, 4.85, 4.86, Diagnostic Code 6100 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Higher Initial Rating - Hearing Loss

Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability.  38 U.S.C.A. § 1155; 38 C.F.R. Part 4.  Where there is a question as to which of two evaluations shall 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.

In any increased rating claim, different ratings can be assigned for different periods of time in a practice known as "staged ratings."  See Fenderson v. West, 12 Vet. App. 119 (1999).

In evaluating service-connected hearing loss, disability evaluations are derived from a mechanical application of the rating schedule to numeric designations assigned after audiometric evaluations are performed.  Lendenmann v. Principi, 3 Vet. App. 345 (1992).  Evaluations of bilateral hearing loss range from noncompensable (0 percent) to 100 percent based on organic impairment of hearing acuity.  Audiological examinations used to measure impairment must be conducted by a state-licensed audiologist and must include both a controlled speech discrimination test (Maryland CNC) and pure tone audiometric tests.  38 C.F.R. § 4.85(a).  

The Ratings Schedule provides a table for rating purposes (Table VI) to determine a Roman numeral designation (I through XI) for hearing impairment, based upon a combination of the percent of speech discrimination and the pure tone threshold average which is the sum of the pure tone thresholds at 1000, 2000, 3000 and 4000 Hertz, divided by four.  See 38 C.F.R. § 4.85, Diagnostic Code 6100.

Table VII is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment of each ear.  The horizontal row represents the ear having the poorer hearing and the vertical column represents the ear having the better hearing.  Id.

When the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more, 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.  Each ear will be evaluated separately.  38 C.F.R. § 4.86(a).

When the pure tone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, 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.  That numeral will then be elevated to the next higher Roman numeral.  Each ear will be evaluated separately.  38 C.F.R. § 4.86(b).

To evaluate the degree of disability from defective hearing, the rating schedule establishes eleven auditory acuity levels designated from I for essentially normal acuity, through XI for profound deafness.  38 C.F.R. § 4.85, Tables VI, VII.

The Veteran was afforded an audiogram during treatment by VA in May 2010.  At that time, the Veteran's pure tone thresholds, in decibels, were as follows:



HERTZ



1000
2000
3000
4000
RIGHT
30 
60
90
105
LEFT
30
55
65
75

The pure tone averages were 71.25 decibels on the right and 56.25 decibels on the left.  Speech audiometry revealed speech recognition ability of 80 percent in the right ear and 84 percent in the left ear.  The examiner noted that the Veteran reported no difficulty hearing most of the time; however, his wife feels that the Veteran does have difficulty hearing.    

In April 2011, the Veteran underwent a VA examination.  At that time, the Veteran's pure tone thresholds, in decibels, were as follows:



HERTZ



1000
2000
3000
4000
RIGHT
35
60
85
105
LEFT
30
60
65
70

Again, the pure tone averages were 71.25 decibels on the right and 56.25 decibels on the left.  Speech audiometry revealed speech recognition ability of 76 percent in the right ear and 92 percent in the left ear.  The examiner noted that the Veteran reported difficulty hearing and understanding conversations.  

The Veteran was afforded a final VA examination in July 2012.  At that time, the Veteran's pure tone thresholds, in decibels, were as follows:



HERTZ



1000
2000
3000
4000
RIGHT
30
60
90
105
LEFT
30
60
60
70

Again, the pure tone averages were 71.25 decibels on the right and 55 decibels on the left.  Speech audiometry revealed speech recognition ability of 86 percent in the right ear and 84 percent in the left ear.  The examiner found that the Veteran's hearing loss impacts ordinary conditions of daily life, including the ability to work, noting that the Veteran's functional impairment includes difficulty hearing and understanding conversations. 

As the audiological findings do not show pure tone thresholds at 55 decibels or more at each of the four specified frequencies and does not show 70 decibels or more at 2000 Hertz, the Board will not determine the Roman numeral designation for hearing impairment from Table VIA.  Only Table VI will be used.  38 C.F.R. § 4.86.

When applying the pure tone averages and speech recognition scores from May 2010 to Table VI, the right ear is assigned a Level IV and the left ear is assigned a Level II.  When applying the pure tone averages and speech recognition scores from April 2011 to Table VI, the right ear is assigned a Level IV and the left ear is assigned a Level I.  When applying the pure tone averages and speech recognition scores from July 2012 to Table VI, the right ear is assigned a Level III and the left ear is assigned a Level II.  The Board then applies those levels to Table VII, which results in a 0 percent, noncompensable evaluation for the Veteran's bilateral hearing loss.

The audiological examinations addressed the functional limitations related to hearing loss.  Martinak v. Nicholson, 21 Vet. App. 447 (2007).  The examiners in April 2011 and July 2012 noted that the Veteran was having difficulty hearing and understanding conversations.  

Therefore, a compensable disability rating for bilateral hearing loss is not warranted based on any audiological findings of record.  For these reasons, the Board finds that the criteria for a compensable disability rating for bilateral hearing loss have not been met or approximated at any time during the initial rating period.  38 C.F.R. § 4.85, Diagnostic Code 6100.

Extraschedular Consideration

The RO must refer a claim to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of an extraschedular rating where a service-connected disability presents an exceptional or unusual disability picture with marked interference with employment or frequent periods of hospitalization that render impractical the application of the regular schedular standards.  38 C.F.R. § 3.321(b) (1) (2011).  An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of a veteran's service-connected disability.  Thun v. Peake, 22 Vet. App. 111, 115 (2008).  If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization.  Id. at 115-116.  When those two elements are met, the appeal must be referred for consideration of the assignment of an extraschedular rating, otherwise, the schedular evaluation is adequate, and referral is not required.  Id. at 116.

In making this determination, the Board is cognizant of the holding of Martinak v. Nicholson, 21 Vet. App. 447 (2007).  In that decision, the United States Court of Appeals for Veterans Claims (Court) noted that, unlike the rating schedule for hearing loss, the extraschedular provisions did not rely exclusively on objective test results to determine whether referral for an extraschedular rating was warranted.  The Court held that in addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in his or her final report.  Id. at 455.

In this case, the Board acknowledges the Veteran's decreased hearing acuity.  The Board notes that the Veteran was noted to have difficulty hearing and understanding conversations.  These symptoms, however, are consistent with the assigned disability evaluations described above and are not "exceptional."  Moreover, the Veteran has not asserted, and the Board has not found, any reason to doubt the accuracy of the audiological examinations.  As the Veteran's hearing loss was appropriately measured and applied, the Board finds that the Rating Schedule contemplates all aspects of his disability, so that referral for extraschedular consideration is not warranted regarding the claim for increased rating for bilateral hearing loss.


ORDER

Entitlement to a compensable disability rating for bilateral hearing loss is denied.  




____________________________________________
MICHAEL E. KILCOYNE
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs