Citation Nr: 1642098 Decision Date: 11/01/16 Archive Date: 11/18/16 DOCKET NO. 11-07 725 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to an increased disability rating in excess of 30 percent for bilateral hearing loss prior to April 29, 2016. 2. Entitlement to an increased disability rating in excess of 30 percent for bilateral hearing loss from April 29, 2016. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD L. Leifert, Associate Counsel INTRODUCTION The Veteran had active military service in the Air Force from January 1966 to May 1969. This case comes before the Board of Veterans' Appeals (Board) following a December 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California, which denied the Veteran's claim for an increased rating for bilateral hearing loss, currently rated as 30 percent disabling. In his substantive appeal VA Form 9 dated March 2011, the Veteran requested a hearing at the local VA office. In a January 2016 Statement in Support of the Claim, the Veteran cancelled his hearing request and asked that his case be forwarded to the Board. Thus, the Board finds that the Veteran has withdrawn his hearing request, and the Board will proceed accordingly. See 38 C.F.R. § 20.702(d) (2015). In April 2016, the Board remanded the claims for further development. For the reasons explained below, the Board finds that there has been substantial compliance with its prior remand. See Stegall v. West, 11 Vet. App. 268 (1998). FINDINGS OF FACT 1. The Veteran demonstrated level VI hearing acuity in his right ear and level VIII hearing acuity in his left ear at a December 2009 VA audiological examination. 2. The Veteran demonstrated level V hearing acuity in his right ear and level VII hearing acuity in his left ear at an April 2016 VA audiological examination. CONCLUSIONS OF LAW 1. The criteria for an increased rating of 40 percent, but not higher, for bilateral hearing loss, prior to April 29, 2016, have been met. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.7, 4.85, Diagnostic Code (DC) 6100 (2015). 2. The criteria for an increased rating in excess of 30 percent for bilateral hearing loss from April 29, 2016, have not been met. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.7, 4.85, DC 6100 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist VA's duty to notify was satisfied by a letter on November 10, 2009. See 38 U.S.C.A. §§ 5102, 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2015); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Next, VA has a duty to assist the Veteran in the development of his claims. This duty includes assisting him in the procurement of service treatment records (STRs) 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 claims file contains the Veteran's STRs, as well as post-service reports of VA treatments and VA examination reports in December 2009 and April 2016. Moreover, his statements in support of the claims are of record and do not reflect that available outstanding evidence has been identified. The Board has also reviewed the medical records for references to additional treatment reports not of record, but nothing in these records suggests that there is any outstanding evidence with respect to the Veteran's claims. In April 2016, the Board remanded the claims to schedule the Veteran for new VA examinations to determine the severity of his hearing loss. Pursuant to the Board's remand instructions, the AOJ scheduled the Veteran for a VA examination in April 2016, and issued an SSOC in May 2016. The Board therefore finds that there has been substantial compliance with the Board's prior remand order, and no further action is necessary in this regard. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall, 11 Vet. App. at 268, where the Board's remand instructions were substantially complied with). For the above reasons, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran in the development of the claim. II. Increased Rating Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 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 rating 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. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. The Veteran's entire history is reviewed when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where entitlement to compensation has already been established, VA must address the evidence concerning the state of the disability from the time period one year before the claim for an increase was filed until VA makes a final decision on the claim. Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505, 510 (2007). For the reasons indicated below, this is such a case. Hearing loss is evaluated under 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100, Tables VI, VIA, and VII of VA's rating schedule. The Rating Schedule provides a table for rating purposes (Table VI) to determine a Roman numeral designation (I through XI) for hearing impairment, established by a state-licensed audiologist, including a controlled speech discrimination test (Maryland CNC), and based upon a combination of the percent of speech discrimination and the puretone threshold average, which is the sum of the puretone thresholds at 1000, 2000, 3000, and 4000 Hertz divided by four. 38 C.F.R. § 4.85 (2015). 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. If impaired hearing is service-connected in only one ear, the nonservice-connected ear is a Roman numeral designation of I. 38 C.F.R. § 4.85(f). There are certain exceptional patterns of hearing impairment. When the puretone 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) (2015). When the puretone 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. 38 C.F.R. § 4.86(b). In the present case, the Veteran contends that he should receive a rating in excess of 30 percent for his bilateral hearing loss. At his December 2009 VA examination, puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 35 40 75 80 95 LEFT 50 55 80 90 100 Puretone averages were 73 decibels for the right ear, and 81 decibels for the left ear. Speech audiometry revealed speech recognition ability of 68 percent in the right ear, and of 56 percent in the left ear. The Veteran noted that he had decreased hearing and understanding in both ears and had difficulty communicating in a group setting with noise. In this case, the Board notes that the puretone threshold for the left ear at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hz) is 55 decibels or higher; as such, the Board must determine the Roman numeral designation for the Veteran's hearing loss from either Table VI or Table VIa, whichever results in the higher numeral. 38 C.F.R. § 4.86. Under Table VIa, the Veteran demonstrated a Level VII hearing impairment in the left ear. However, under Table VI, he demonstrated a Level VIII hearing impairment in the left ear. As such, the Board will use Table VI to evaluate the Veteran's left ear hearing impairment, as it results in the higher numeral. In regards to his right ear, under Table VI, the Veteran demonstrated a Level VI hearing impairment. 38 C.F.R. § 4.85(f). Applying the results to Table VII, a 40 percent disability rating is warranted for hearing loss. See 38 C.F.R. § 4.85, DC 6100. At his April 2016 VA examination, puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 40 45 80 85 90 LEFT 40 55 85 90 95 Puretone averages were 75 decibels for the right ear, and 81 decibels for the left ear Speech audiometry revealed speech recognition ability of 76 percent in the right ear, and of 76 percent in the left ear. The examiner noted that the Veteran reported that he had difficulty understanding people in most communication situations. As was the case above, the Veteran's puretone threshold for the left ear at each of the four specified frequencies is 55 decibels or higher, and the Board will determine the Veteran's hearing loss from either Table VI or Table VIa. 38 C.F.R. § 4.86. Under Table VIa, the Veteran demonstrated a Level VII hearing impairment in the left ear. However, under Table VI, he demonstrated a Level V hearing impairment in the left ear. As such, the Board will use Table VIa to evaluate the Veteran's left ear hearing impairment, as it results in the higher numeral. In regards to his right ear, under Table VI, the Veteran demonstrated a Level V hearing impairment. 38 C.F.R. § 4.85(f). Applying the results to Table VII, a 30 percent disability rating is warranted for hearing loss. See 38 C.F.R. § 4.85, DC 6100. The Board notes that the VA audiological examination reports each included a description, recounted above, of the effects of the Veteran's hearing impairments on his daily life, consistent with the requirements of Martinak v. Nicholson, 21 Vet. App. 447 (2007). Resolving all doubt in the Veteran's favor, the Board finds that an increased rating of 40 percent, but not higher, is warranted from August 20, 2009, the date of filing for the claim for increased rating, to April 29, 2016. Further, the Board finds that a rating of 30 percent, but not higher, is warranted from April 29, 2016. As the assignment of an increased evaluation, and then its reduction, is a retroactive action, and not a prospective one, the provisions regarding reduction are not applicable. Singleton v. Shinseki, 23 Vet. App. 376 (2010); Reizenstein v. Peake, 22 Vet. App. 202 (2008), aff'd sub nom Reizenstein v. Shinseki, 583 F.3d 1331 (Fed. Cir. 2009). ORDER Entitlement to an increased disability rating of 40 percent, but not higher, for bilateral hearing loss, prior to April 29, 2016, is granted, subject to controlling regulations governing the payment of monetary awards. Entitlement to an increased disability rating in excess of 30 percent for bilateral hearing loss from April 29, 2016, is denied. ____________________________________________ Jonathan Hager Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs