Citation Nr: 1609042 Decision Date: 03/07/16 Archive Date: 03/15/16 DOCKET NO. 13-31 135A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to an initial compensable rating for bilateral hearing loss. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and the Veteran's spouse ATTORNEY FOR THE BOARD Steve Ginski, Associate Counsel INTRODUCTION The Veteran served on active duty in the U.S. Navy from October 1950 to August 1954. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Augusta, Maine. Jurisdiction was subsequently transferred to the RO in Indianapolis, Indiana. In November 2015, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. The Board remanded this claim in December 2015 for additional development. That development completed, the matter has been returned to the Board for appellate consideration. 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 The Veteran's bilateral hearing loss is manifested by puretone thresholds, averaged over the frequencies of 1000, 2000, 3000, and 4000 Hertz (Hz), no greater than 51 decibels (dB) for the right ear and 51 dB for the left ear, and speech recognition scores no lower than 92 percent for the right ear and 72 percent for the left ear. CONCLUSION OF LAW The criteria for a compensable initial disability rating have not been met for bilateral hearing loss. 38 U.S.C.A §§ 1155, 5107 (West 2014); 38 C.F.R. § 3.321, 4.1, 4.2, 4.85, Diagnostic Code (DC) 6100 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION I. 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). VA provided adequate notice in a letter sent to the Veteran in May 2012. Next, VA has a duty to assist the claimant in the development of the claim. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained service and VA treatment records, as well as private treatment records. Also, VA afforded the Veteran relevant examinations and opinions in January 2013 and January 2016. The resulting examination reports detail the Veteran's hearing loss disability and reflect consideration of the relevant history. The Board finds them collectively adequate for adjudication purposes. See Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007). The Board also finds that there has been substantial compliance with the directives of the December 2015 remand. At that time, the Board directed that the Veteran be afforded an examination to determine the severity of his bilateral hearing loss. This examination was conducted in January 2016. Thus, there has been substantial compliance with the December 2015 remand. See Stegall v. West, 11 Vet. App. 268 (1998). II. Increased Disability Rating for Bilateral Hearing Loss Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.1 (2015). The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10 (2015). In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability. 38 C.F.R. §§ 4.1, 4.2 (2015); Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7 (2015). It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21 (2015). Ratings for hearing loss disability are based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination testing together with the average hearing threshold level, in decibels, which is measured by the puretone audiometric tests in the frequencies 1,000, 2,000, 3,000 and 4,000 Hertz. 38 C.F.R. § 4.85, DC 6100 (2015). An examination for hearing impairment for VA purposes must include a controlled speech discrimination test (Maryland CNC). Id. To evaluate the degree of disability from defective hearing, the rating schedule requires assignment of a Roman numeral designation, ranging from I to XI. Other than exceptional cases, VA arrives at the proper designation by mechanical application of Table VI, which determines the designation based on results of standard test parameters. Id. Table VII is then applied in order to arrive at a rating based upon the respective Roman numeral designations for each ear. Id. VA afforded the Veteran an audiology examination in January 2013. The testing revealed puretone thresholds, in dB, at 1000, 2000, 3000, and 4000 Hz, of 5, 45, 60, and 60 for the right ear, respectively, which average to 42 dB, and of 20, 55, 60, and 55 for the left ear, respectively, which average to 48 dB. Speech recognition was 94 percent for the right ear and 92 percent for the left ear. A private audiology assessment conducted in June 2015 showed worsening symptoms bilaterally, so the Board remanded the claim in December 2015 to afford the Veteran an examination to assess the current severity of his bilateral hearing loss. In the subsequent VA audiology examination in January 2016, the testing revealed puretone thresholds, in DB, at 1000, 2000, 3000, and 4000 Hz, of 20, 55, 60, and 70 of the right ear, respectively, which average to 51 dB, and of 25, 60, 60, and 60 of the left ear, respectively, which average to 51 dB. Speech recognition was 92 percent for the right ear and 72 percent for the left. Using the audiology results from January 2016, application of Table VI with regard to the right ear yields assignment of Roman numeral I. Application of Table VI to the left ear yields a Roman numeral assignment of V. Application of Table VII with the Roman numeral I for the right ear and Roman numeral V left ear yields a noncompensable rating. The January 2016 audiology examination reflects the most hearing loss with regard to the Veteran's ears for the entire appeal period. Thus, the most recent and most severe audiologic results for the Veteran's bilateral hearing loss still yield a noncompensable rating when the rating tables are applied. Thus, the preponderance of evidence is against granting a compensable rating for bilateral hearing loss, and the appeal as to this issue must be denied. There is no reasonable doubt to be resolved as to this issue. See 38 U.S.C.A. § 5107(b) (West 2014); 38 C.F.R. § 3.102, 4.3 (2015); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). (CONTINUED ON NEXT PAGE) ORDER Entitlement to an initial compensable disability rating for bilateral hearing loss is denied. ____________________________________________ GAYLE E. STROMMEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs