Citation Nr: 1601197	
Decision Date: 01/12/16    Archive Date: 01/21/16

DOCKET NO.  15-21 475	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUE

Entitlement to a disability rating greater than 40 percent for bilateral hearing loss.


REPRESENTATION

Appellant represented by:	Texas Veterans Commission


ATTORNEY FOR THE BOARD

J.R. Bryant


INTRODUCTION

The Veteran served on active duty in the U.S. Army from October 1958 to August 1961.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from rating decision issued in August 2014, by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas.  

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015).  38 U.S.C.A. § 7107(a)(2) (West 2014).


FINDING OF FACT

Resolving reasonable doubt in the Veteran's favor, his service-connected bilateral hearing loss disability is manifested by no worse than Level VIII hearing acuity in the right ear and no worse than Level IX hearing acuity in the left ear.


CONCLUSION OF LAW

The criteria for a 50 percent rating, but no more, for bilateral hearing loss are met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(West 2014); 38 C.F.R. §§ 3.102, 4.85, 4.86 Diagnostic Code (DC) 6100 (2015).


REASONS AND BASES FOR FINDING AND CONCLUSION


Duties to Notify and Assist

VA has a duty to notify and assist claimants in substantiating claims for VA benefits.  See e.g. 38 U.S.C.A. §§ 5103, 5103A (West 2014) and 38 C.F.R. § 3.159 (2015).  In this case all notification action needed has been accomplished to make a decision on the increased rating claim.  The Board notes that the Veteran's February 2014 increased rating claim for bilateral hearing loss was filed using VA Form 21-526EZ and developed under the Fully Developed Claim (FDC) program.  VA otherwise provided adequate notice in a previous letter sent to the Veteran in November 2012.  

VA has also satisfied its duty to assist the Veteran in the development of his claim.  Service treatment records and pertinent post-service records have been obtained and are viewable on the Virtual VA and Veterans Management Benefits System electronic file systems.  The Veteran has also submitted potentially relevant documents and argument in support of his claim, including personal statements and findings from a private audiological evaluation dated in September 2014.  The Board finds that there is no additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. 

The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law.  Green v. Derwinski, 1 Vet. App. 121 (1991).  Here, the Veteran was afforded VA compensation examinations in December 2012 and August 2014 assessing and reassessing the severity of his service-connected hearing loss.  These examination reports adequately document the symptoms and functional effects of the service-connected hearing loss and so provide the information necessary for the Board to evaluate this service-connected disability.  See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  See also Martinak v. Nicholson, 21 Vet. App. 447, 454 (2007) (A VA audiology examiner is required to fully describe the functional effects caused by a hearing disability).  Also as noted above the Veteran has submitted a September 2014 private audiogram report.  Thus, the Board finds that VA has satisfied its duty to assist the Veteran in apprising him as to the evidence needed, and in obtaining evidence pertinent to his claim under the VCAA.  

Law and Analysis

The Veteran is seeking a higher disability rating for his service-connected bilateral hearing loss.

Disability ratings are determined by comparing a veteran's present symptomatology with the criteria set forth in the VA Schedule for Rating Disabilities, which is based upon average impairment in earning capacity.  38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. Part 4 (2015).  When a question arises as to which of two ratings applies under a particular diagnostic code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  After careful consideration of the evidence, any reasonable doubt is resolved in favor of the Veteran.  38 C.F.R. § 4.3. 

The Veteran's entire history is considered when assigning disability ratings.  38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995).  A review of the recorded history of a disability is necessary in order to make an accurate rating.  38 C.F.R. §§ 4.2, 4.41 (2015).  The regulations do not give past medical reports precedence over current findings where such current findings are adequate and relevant to the rating issue.  Francisco v. Brown, 7 Vet. App. 55 (1994); Powell v. West, 13 Vet. App. 31 (1999).  The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal.  Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).

The Veteran's bilateral hearing loss is currently rated as 40 percent disabling under DC 6100.  Hearing loss is evaluated under DC 6100, which sets out the criteria for evaluating hearing impairment using puretone threshold averages and speech discrimination scores.  Numeric designations are assigned based upon a mechanical use of tables found in 38 C.F.R. § 4.85.  See Acevedo-Escobar v. West, 12 Vet. App. 9, 10 (1998); Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992).

Audiometric results are matched on Table VI to find the numeric designation.  Then, the designations are matched with Table VII to find the percentage evaluation to be assigned for the hearing impairment.  To evaluate the degree of disability for service-connected hearing loss, the Rating Schedule establishes 11 auditory acuity levels, designated from Level I for essentially normal acuity, through Level XI for profound deafness.  38 C.F.R. § 4.85. 

The provisions of section 4.86 address exceptional patterns of hearing loss which are identified when each of the puretone thresholds at 1000, 2000, 3000, and 4000 hertz (Hz) is 55 decibels or more, or when the puretone threshold is 30 decibels or less at 1000 Hz, and 70 decibels or more at 2000 Hz.  38 C.F.R. § 4.86.

Turning to the evidence of record, a VA audiological evaluation in December 2012, shows pure tone thresholds, in decibels, as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
20
25
40
60
85
LEFT
40
45
50
65
80

The results of this audiogram show an average puretone threshold of 52 decibels for the right ear and 60 for the left.  Speech audiometry revealed speech recognition ability of 64 percent in the right ear and 48 percent in the left ear.  Exceptional patterns of hearing impairment are not indicated.  The audiologist concluded the Veteran had moderately severe hearing loss in the right ear and severe hearing loss in the left ear.  The Veteran's hearing loss impacted conversations and enjoyment of the TV.  

These audiometric findings result in a numeric designation of Level VI auditory acuity in the right hear and Level VIII in the left ear.  See 38 C.F.R. § 4.85, Table VI.  The point of intersection on Table VII reflects a level of hearing loss consistent with a 40 percent disability rating.  See 38 C.F.R. § 4.85.  The audiological results do not satisfy the criteria for a rating greater than the currently-assigned 40 percent evaluation for bilateral hearing loss due to an exceptional hearing loss pattern.  38 C.F.R. § 4.86.

Based upon these findings, the RO, in a November 2013 rating decision, increased the rating for hearing loss to 40 percent.  The Board notes that this examination report is well outside the appeal period, which would begin in February 2014 two years prior to the date the Veteran filed the increased rating claim.  However the report is still useful to review as it provides some context with respect to the level of impairment caused by the Veteran's hearing loss and is instructive for that purpose. 

In connection with the current claim for increase, is an August 2014 VA audiological evaluation, which shows pure tone thresholds, in decibels, as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
30
30
45
65
80
LEFT
35
40
60
65
75

The results of the VA audiogram show an average puretone threshold of 55 decibels for the right ear and 60 for the left.  Speech audiometry revealed speech recognition ability of 74 percent in the right ear and 70 percent in the left ear.  Exceptional patterns of hearing impairment are not indicated.  The Veteran reported relying on lipreading, having trouble on the telephone and understanding speech in background noise.  

These audiometric findings suggest that the Veteran's bilateral hearing loss disability has improved with a numeric designation of Level V auditory acuity in both ears.  See 38 C.F.R. § 4.85, Table VI.  The point of intersection on Table VII reflects a level of hearing loss consistent with a 20 percent disability rating.  See 38 C.F.R. § 4.85.  The examiner did not address the changes shown between the December 2012 and August 2104 audiograms or explain what if any significance this change had, if any, on the Veteran's bilateral hearing loss or explain how such an improvement was possible.

In September 2014, about a month later, the Veteran was seen privately by the Ear, Nose & Throat Clinics of San Antonio, P.A. and submitted an uninterpreted graphic representation of audiometric data.  The results of the audiological evaluation are clear and the Board may review them.  See Ponder v. Shinseki, No. 09-0881, 2010 WL 4241571, at 3 (Vet. App. Oct. 28, 2010) (unpublished single-judge disposition) (noting that in Kelly v. Brown, 7 Vet. App. 471 (1995), the Court determined that it could not interpret the results of an audiograph because interpretation required a factual finding, which was not the role of the Court in the first instance; the Board, however, was empowered to make factual findings in the first instance); see also Bethea v. Derwinski, 2 Vet. App. 252, 254 (1992) (a non-precedential decision may be cited for any persuasiveness or reasoning it contains).

On audiological evaluation, pure tone thresholds, in decibels, were:




HERTZ



500
1000
2000
3000
4000
RIGHT
75
70
80
100
100
LEFT
75
85
90
100
100

The Veteran had average puretone thresholds of 87.5 in the right ear, and 93.75 in the left ear; and speech discrimination scores of 56 percent in the right ear and 72 percent in the left ear.  Applying these results to the Rating Schedule reveals a numeric designation of Level VIII auditory acuity in the right ear and VII in the left ear.  See 38 C.F.R. § 4.85, Table VI.  The point of intersection on Table VII reflects a level of hearing loss consistent with a 40 percent disability rating.  Unfortunately, it is not clear as to whether testing was in line with 38 C.F.R. § 4.85, to include whether a Maryland CNC controlled speech discrimination test was utilized.  

That said, the available data in the private report, while not sufficient for application of the schedular rating tables, does show results that are consistent with the hearing thresholds present in the Veteran's previous VA evaluation in 2012, the basis for the current 40 percent disability rating.  Also of even greater significance, the audiogram demonstrates an exceptional pattern of hearing impairment in both ears, as defined by 38 C.F.R. § 4.86.  Thus, the Board may consider the September 2014 private audiogram using only the puretone threshold averages in determining the appropriate disability rating assigned to the Veteran's hearing loss.  Consequently, when these puretone threshold averages (87.5 in the right ear, and 93.75 in the left ear) are applied against the rating criteria, the results reveal a numeric designation of VIII in the right ear and IX in the left ear and clearly fall within the parameters for a 50 percent rating.  See 38 C.F.R. § 4.86, Table VIA, VII, DC 6100.  

The Board acknowledges that the recent August 2014 VA examination yielded numeric designations of Level V auditory acuity in both ears, which in turn results in a lower combined disability rating on Table VII consistent with a 20 percent disability rating.  However given that testing both before and after this examination was consistent with at least a 40 percent disability rating, the Board will consider the August 2014 test results to be an anomaly rather than an indication of significantly improved hearing.  See 38 C.F.R. § 4.2 (regarding the duty to interpret medical findings comprehensively).

Therefore resolving all doubt in his favor, the Board finds that the evidence of record supports a 50 percent disability rating.  However a 60 percent rating is not warranted as there is no medical evidence to support such a rating.  The Veteran's disability must be evaluated on the objective findings demonstrated during audiological examination.  Hearing loss involves a mechanical application of the rating schedule to numeric designations assigned to official auditory results.  The fact that hearing acuity is less than optimal does not, by itself, establish entitlement to a higher disability rating.  A rating greater than 50 percent can be awarded only when loss of hearing has reached a specified measurable level.  That level of disability has not been demonstrated in the present case.  

The Board has carefully considered the Veteran's contentions in making this decision.  However, inasmuch as the objective evidence does not otherwise substantiate the subjective complaints, his assertions do not suffice to assign higher disability ratings for his service-connected hearing loss.  In this case, the current level of disability shown is encompassed by the rating assigned and with due consideration to the provision of 38 C.F.R. § 4.7, a higher evaluation is not warranted. 

According to Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014), a veteran may be entitled to "consideration [under 38 C.F.R. § 3.321(b) ] for referral for an extra-schedular evaluation based on multiple disabilities, the combined effect of which is exceptional and not captured by schedular evaluations."  Referral for an extraschedular rating under 38 C.F.R. § 3.321(b) is to be considered based upon either a single service-connected disability or upon the "combined effect" of multiple service-connected disabilities when the "collective impact" or "compounding negative effects" of the service-connected disabilities, when such presents disability not adequately captured by the schedular ratings for the service-connected disabilities. 

In this case, the Veteran has not asserted, and the evidence of record has not suggested, any such combined effect or collective impact of multiple service-connected disabilities that create such an exceptional circumstance to render the schedular rating criteria inadequate.  

Here, the schedular ratings are adequate.  Evaluations in excess of the one assigned are provided for certain manifestations of the service-connected bilateral hearing loss, but the medical evidence reflects that those manifestations are not present here.  Additionally, the diagnostic criteria adequately describe the severity and symptomatology of the Veteran's disorder in that the ratings are intended to compensate for exactly the symptoms the Veteran has reported, difficulty hearing, including difficulty hearing people talking.  As the rating schedule is adequate to evaluate the disability, referral for extraschedular consideration is not in order.

Thus, for the reasons discussed herein, and applying the benefit of the doubt doctrine, the Board finds that the Veteran's hearing loss more nearly approximates a 50 percent disability rating, but no higher for the entire appeal period.  Hart, supra.


ORDER

A 50 percent disability rating, but not higher, for bilateral hearing loss is granted, subject to the statutes and regulations governing the payment of monetary benefits.



____________________________________________
GAYLE E. STROMMEN
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs