Citation Nr: 1530730	
Decision Date: 07/17/15    Archive Date: 07/24/15

DOCKET NO.  10-43 419	)	DATE
	)
	)

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


THE ISSUE

Entitlement to a higher initial disability rating for hearing loss, evaluated as noncompensably disabling prior to January 4, 2011, and as 10 percent disabling thereafter.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

K. Neilson, Counsel


INTRODUCTION

The Veteran had active military service from January 1958 to March 1960.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma, wherein, the RO, among other things, awarded service connection for hearing loss and assigned a noncompensable (zero percent) evaluation, effective from February 3, 2009.  The Veteran disagreed with the assigned rating and appealed to the Board.  

The Board notes that the instant case was previously before it in March 2014 at which time it was remanded for further development.  Upon completion of that development, the agency of original jurisdiction (AOJ) issued a July 2014 supplemental statement of the case (SSOC) denying the Veteran's claim for higher ratings.  The case was thereafter returned to the Board.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  38 U.S.C.A. § 7107(a)(2) (West 2014).


FINDINGS OF FACT

1.  A VA audiologist has certified that use of the speech discrimination test is not appropriate in the instant case; the Veteran's hearing impairment is therefore to be evaluated based only on the pure tone threshold averages.

2.  Prior to January 4, 2011, the Veteran's bilateral hearing loss was manifested by hearing impairment corresponding to no worse than auditory acuity Level VI in the right ear and Level VII in the left ear in accordance with criteria set forth in Table VIa.


3.  As of January 4, 2011, the Veteran's bilateral hearing loss was manifested by hearing impairment corresponding to no worse than auditory acuity Level VII, bilaterally, in accordance with criteria set forth in Table VIa.

4.  Since December 22, 2011, the Veteran's bilateral hearing loss has manifested by hearing impairment corresponding to no worse than auditory acuity Level VIII, bilaterally, in accordance with criteria set forth in Table VIa.


CONCLUSIONS OF LAW

1.  The criteria for a 30 percent disability evaluation for bilateral hearing loss were met prior to January 4, 2011.  38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.159, 3.321, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100 (2014).

2.  The criteria for a 40 percent disability evaluation for bilateral hearing loss were met from January 4, 2011, to December 22, 2011.  38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.159, 3.321, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100 (2014).

3.  The criteria for a 50 percent disability evaluation for bilateral hearing loss have been met since December 22, 2011.  38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.159, 3.321, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100 (2014).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Disability ratings are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity.  38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.1 (2014).  The veteran's entire history is reviewed when making disability evaluations.  See generally Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 4.1.  Where, as in the case of the Veteran's current claim, the question for consideration is the propriety of the initial evaluations assigned, consideration of the medical evidence since the effective date of the award of service connection and consideration of the appropriateness of a staged rating are required.  See Fenderson v. West, 12 Vet. App. 119, 126 (1999).  Further, "[w]here 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."  38C.F.R. § 4.7 (2014).

Here, the Veteran's service-connected hearing loss has been evaluated as noncompensably disabling (zero percent) prior to January 4, 2011, and as 10 percent disabling thereafter under 38 C.F.R. § 4.85, Diagnostic Code (DC) 6100.  Under DC 6100, hearing loss is evaluated in accordance with the findings obtained on audiometric examination.  See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992) (providing that disability ratings for service-connected hearing impairments are determined through mechanical application of the disability rating schedule to the results of audiometric evaluations).  The evaluations assigned for hearing impairment range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests, together with the average hearing threshold level as measured by pure tone audiometry tests in the frequencies 1,000; 2,000; 3,000; and 4,000 Hertz (cycles per second).  The degrees of disability for bilateral hearing loss are reflected in eleven auditory acuity levels in the rating schedule, designated from Level I for essentially normal acuity through Level XI for profound deafness.  See 38 C.F.R. § 4.85, DC 6100 (2014).  As set forth in the rating schedule, Tables VI, VIa, and VII are used to calculate the disability evaluation to be assigned.  See id.

VA regulations further provide that in cases of exceptional hearing loss, when the pure tone thresholds at each of the four specified frequencies (1,000, 2,000, 3,000 and 4,000 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, and each ear is to be evaluated separately.  38 C.F.R. § 4.86(a) (2014).  When the pure tone threshold is 30 decibels or less at 1,000 Hertz, and 70 decibels or more at 2,000 Hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever would result in the higher numeral.  38 C.F.R. § 4.86(b).  Further, "when the examiner certifies that use of the speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc.," hearing impairment will be evaluated based only on pure tone threshold averages in accordance with Table VIa.  38 C.F.R. § 4.85(c).  

Relevant to the issue on appeal, results of audiometric testing conducted as part of a February 2009 VA contract audiology examination were, in relevant part, as follows:



HERTZ



1000
2000
3000
4000
RIGHT
35
85
90
90
LEFT
40
85
95
95

Pure tone averages were 75 decibels for the right ear and 78.75 decibels for the left ear.  Speech audiometry revealed speech recognition ability of 88 percent in the right ear and of 84 percent in the left ear, using Maryland CNC tests.  

Results of audiometric testing conducted during a January 4, 2011 VA audiology examination were, in relevant part, as follows:



HERTZ



1000
2000
3000
4000
RIGHT
40
80
95
100
LEFT
40
80
100
100

Pure tone averages were 78.75 decibels for the right ear and 80 decibels for the left ear.  Speech audiometry revealed speech recognition ability of 84 percent in the right ear and of 80 percent in the left ear, using Maryland CNC tests.  

Thereafter the Veteran submitted the report of a private audiology examination, dated on December 22, 2011.  Results of audiometric testing conducted as part of that evaluation were, in relevant part, as follows:



HERTZ



1000
2000
3000
4000
RIGHT
60
85
100
105
LEFT
60
90
100
105

Pure tone averages were 75 decibels for the right ear and 78.75 decibels for the left ear.  Administration of Maryland CNC tests, however, revealed speech recognition abilities of only 28 percent in the right ear and 36 percent in the left ear.  

Given the significant differences in speech recognition scores over a relatively short period of time, the Board questioned the accuracy of the hearing data recorded in the both the January 2011 and the December 2011 audiology report, at least with regards to the results of speech discrimination testing.  The Board thus remanded the matter in March 2014 for the Veteran to be afforded another VA examination.

In April 2014, the Veteran underwent another VA audiology examination.  The recorded results of audiometric testing conducted during that examination were, in relevant part, as follows:



HERTZ



1000
2000
3000
4000
RIGHT
60
90
100
100
LEFT
55
90
105
105

Pure tone averages were 88 decibels for the right ear and 89 decibels for the left ear.  The examiner stated, however, that test results were not valid for rating purposes due to excessive inconsistencies noted throughout testing session.  It was indicated that the Veteran had demonstrated several behaviors consistent with exaggerated hearing loss including half word responses during speech recognition testing and poor ascending versus descending reliability during pure tone testing, which inconsistencies did not resolve upon multiple reinstruction and retesting.   The examiner also did not record speech discrimination scores, stating that the use of the word recognition score is not appropriate for the Veteran because of language difficulties, cognitive problems, inconsistent word recognition scores, etc., that make combined use of pure tone average and word recognition scores inappropriate.

Regarding the discrepancies in speech recognition scores recorded in the January and December 2011 audiological evaluations, the examiner offered her opinion that only the January 2011 VA could be relied upon as a valid measure of word recognition at that time and stated that the discrepancies could be due to such things as exaggerated listening behaviors in December 2011; test materials (CNC word list on VA exam versus unknown word list on private exam); test presentation method; and presentation level.  Notably, however, the private audiological examination report indicates that it was in fact the Maryland CNC tests that had been administered.  Further, the examiner's opinion regarding the reliability of the January 2011 speech recognition scores is undermined by the fact that she indicated that the use of the word recognition test was not appropriate for the Veteran.   

Given the evidence of record, the Board finds that rather than again remand the Veteran's claim for yet another VA audiological examination, the Board will resolve all reasonable doubt in favor of the Veteran and rate the severity of his hearing loss based only on pure tone threshold averages.  The Board finds it appropriate to do so given the inconsistencies in the speech recognition scores and in light of the fact that the VA audiologist certified that use of speech discrimination testing was not appropriate in the Veteran's case.  In so concluding, the Board has considered the VA audiologist's statement that the Veteran's auditory threshold averages recorded at the time of the April 2014 examination were not valid for rating purposes due to excessive inconsistencies noted throughout the testing session.  When, however, comparing the April 2014 auditory thresholds with those recorded in 2009 and 2011, the Board finds that the Veteran's auditory thresholds have been somewhat consistent, albeit gradually worsening.  The VA audiologist gave no indication that past results should also be deemed invalid (nor does any prior examination report suggest that test results were invalid) and given the similarity of testing results, the Board will assume that the results accurately reflect the Veteran's hearing acuity throughout the pendency of his claim.

Turning to the recorded pure tone auditory thresholds of record, application of the February 2009 audiogram results to Table VIa reveals Level VI hearing acuity in the right ear and Level VII hearing acuity in the left ear.  38 C.F.R. § 4.85, Table VIa.  Level VII hearing acuity in the poorer ear and Level VI hearing acuity in the better ear results in a 30 percent disability evaluation in accordance with the standards found in Table VII.  38 C.F.R. § 4.85, Table VII.  

Application of the January 4, 2011, audiogram results to Table VIa reveals Level VII hearing acuity, bilaterally, which results in a 40 percent disability evaluation in accordance with the standards found in Table VII.  38 C.F.R. § 4.85, Tables VIa, VII.  Application of the December 22, 2011, private audiogram results to Table VIa reveals Level VIII hearing acuity, bilaterally, which results in a 50 percent disability evaluation in accordance with the standards found in Table VII.  38 C.F.R. § 4.85, Tables VIa, VII.  Lastly, application of the April 2014 audiogram results to Table VIa also reveals Level VIII hearing acuity, bilaterally, which corresponds to a 50 percent disability evaluation in accordance with the standards found in Table VII.  38 C.F.R. § 4.85, Tables VIa, VII.  

In consideration of the evidence of record, the Board finds that, when reasonable doubt is resolved in favor of the Veteran, prior to January 4, 2011, audiological evaluation reflects that the Veteran's hearing loss was manifested by no worse than Level VI hearing impairment in the right ear and Level VII hearing impairment in the left ear, based only on the pure tone threshold averages, which results in a 30 percent disability evaluation under 38 C.F.R. § 4.85, DC 6100.  As noted above, the evidence of record demonstrates that as of January 4, 2011, the Veteran's recorded pure tone threshold averages correspond to Level VII hearing impairment bilaterally, or a 40 percent disability evaluation.  The evidence of record further demonstrates that since December 22, 2011, audiological evaluation reflects that the Veteran's hearing loss has been manifested by no worse than Level VIII hearing impairment bilaterally, based only on the pure tone threshold averages, which results in a 50 percent disability evaluation under 38 C.F.R. § 4.85, DC 6100.  Accordingly, the Board finds that staged increased ratings are warranted in accordance with the facts found.


ORDER

Entitlement to a rating of 30 percent for hearing loss is granted prior to January 4, 2011, subject to the regulations governing the payment of monetary benefits.

Entitlement to a 40 percent evaluation for hearing loss is granted from January 4, 2011, subject to the regulations governing the payment of monetary benefits.

Entitlement to a 50 percent evaluation for hearing loss is granted from December 22, 2011, subject to the regulations governing the payment of monetary benefits.



____________________________________________
JAMES L. MARCH
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs