Citation Nr: 1715167	
Decision Date: 05/05/17    Archive Date: 05/11/17

DOCKET NO.  09-44 732	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Oakland, California


THE ISSUE

Entitlement to an initial compensable rating prior to April 1, 2013, and in excess of 10 percent thereafter, for service-connected bilateral hearing loss.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESSES AT HEARING ON APPEAL

The Veteran and his wife


ATTORNEY FOR THE BOARD

James R. Springer, Associate Counsel

INTRODUCTION

The Veteran served on active duty in the U.S. Air Force from August 1969 to August 1973.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision of Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California.  Jurisdiction over the Veteran's claim is currently with the RO in Oakland, California.

In January 2015, the Veteran testified before the undersigned Veterans Law Judge at a videoconference hearing; a transcript of the hearing is of the record.

In March 2015 and March 2016, the Board remanded the Veteran's claim for further development.  This matter is now returned to the Board for further review.

In a June 2016 rating decision, the AOJ awarded a 10 percent disability rating for his service-connected bilateral hearing loss, effective April 1, 2013.  As this does not constitute a full grant of the benefits possible, the matter remains on appeal.  See AB v. Brown, 6 Vet. App. 35, 38 (1993).

As noted in the March 2015 and March 2016 remands, an October 2014 Statement in Lieu of a Form 646 indicates that the Veteran may wish to file claims for additional ear conditions (other than hearing loss and tinnitus), albeit not entirely clear.  Therefore, the AOJ must seek clarification from the Veteran with regard to whether he intended to file an informal claim for service connection.


FINDINGS OF FACT

1.  Prior to April 1, 2013, the Veteran's bilateral hearing loss was manifested, at its worst, by Level II hearing bilaterally.

2.  From April 1, 2013, the Veteran's bilateral hearing loss was manifested, at its worst, by Level IV hearing in the right ear and Level V in the left ear.


CONCLUSIONS OF LAW

1.  The criteria for an initial compensable rating prior to April 1, 2013, for bilateral hearing loss are not met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 
38 C.F.R. §§ 4.1, 4.3, 4.85, 4.86, Diagnostic Code 6100 (2016).

2.  The criteria for a rating in excess of 10 percent from April 1, 2013, for bilateral hearing loss are not met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. 
§§ 4.1, 4.3, 4.85, 4.86, Diagnostic Code 6100.


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  VA's Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance.  38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. 
§§ 3.102, 3.156(a), 3.159, 3.326(a) (2016).  VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).

VA's duty to notify was accomplished in April 2008 and February 2009 letters.  Moreover, the issue on appeal pertains to the initial evaluation assigned following the grant of service connection.  Courts have held that once service connection is granted the claim is substantiated, additional notice is not required and any defect in the notice is not prejudicial.  Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007).  Therefore, no further notice is needed under VCAA.

With respect to the duty to assist, the Veteran's VA treatment records have been obtained and associated with the claims file.  He was also provided with VA examinations in April 2009, May 2009, March 2010, November 2012, August 2015, and May 2016.  Moreover, lay statements from the Veteran and his wife, including their January 2015 testimony before the undersigned, are of record.  

He has not alleged that VA has not fulfilled its duty notify or assist in the development of his claim.  The Veteran has not identified any outstanding VA or non-VA treatment records pertinent to his appeal.  Additionally, the most recent examination was performed in May 2016, and there is nothing in the record to suggest that the Veteran's service-connected bilateral hearing loss has worsened since that examination.  See Palczewski v. Nicholson, 21 Vet. App. 174 (2007).

With regard to the March 2015 and March 2016 remand directives, the Board finds that the AOJ substantially complied with those directives by obtaining the Veteran's VA treatment records, including the April 2013 VA audiometric results, as well as scheduling him for VA examinations in August 2015 and May 2016.  See Stegall v. West, 11 Vet. App. 268, 271 (1998).  

The Veteran has not been alleged that VA failed to fulfill its duty notify or assist in the development of his claim, nor has he identified any outstanding VA or non-VA treatment records pertinent to his appeal.  Furthermore, review of the record fails to reveal any other deficiency with respect to either the duty to notify or assist.  Therefore, the Board finds that VA has met all statutory and regulatory notice and duty to assist provisions, and he will not be prejudiced as a result of the Board proceeding to the merits of his claim.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).

II.  Analysis

Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule).  38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10.

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 for that rating.  Otherwise the lower rating will be assigned.  38 C.F.R. § 4.7.  Reasonable doubt will be resolved in the Veteran's favor.  38 C.F.R. § 4.3. 

The veteran's entire history is to be considered when making disability evaluations.  See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995).  Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability.  Francisco v. Brown, 7 Vet. App. 55 (1994).  However, where the question for consideration is entitlement to a higher initial rating assigned following the grant of service connection, evaluation of the medical evidence since the effective date of the grant of service connection and consideration of the appropriateness of "staged rating" (assignment of different ratings for distinct periods of time, based on the facts found) is required.  Fenderson v. West, 12 Vet. App. 119, 126 (1999).

Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4.  The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.

Ratings of hearing loss range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of speech discrimination tests combined with the average hearing threshold levels as measured by pure tone audiometry tests in the frequencies 1000, 2000, 3000, and 4000 cycles per second.  To rate the degree of disability for service-connected hearing loss, the Rating Schedule has established eleven auditory acuity levels, designated from Level I, for essentially normal acuity, through Level XI, for profound deafness.  38 C.F.R. § 4.85(h), Table VI.
In order to establish entitlement to a compensable rating for hearing loss, it must be shown that certain minimum levels of the combination of the percentage of speech discrimination loss and average pure tone decibel loss are met.  The assignment of disability ratings for hearing impairment is derived by a mechanical application of the Rating Schedule to the numeric designations assigned after audiometric evaluations are rendered.  Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992).  

The criteria for rating hearing impairment use controlled speech discrimination tests (Maryland CNC) together with the results of pure tone audiometry tests.  These results are then charted on Table VI, Table VIA in exceptional cases as described in 38 C.F.R. § 4.86, and Table VII, as set out in the Rating Schedule.  38 C.F.R. § 4.85.  An exceptional pattern of hearing loss occurs when the pure tone threshold at 1000, 2000, 3000, and 4000 Hertz is 55 decibels or more, or when the pure tone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz.  38 C.F.R. § 4.86.  Specifically, when the pure tone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz, the Roman numeral designation for hearing impairment is determined from either Table VI or Table VIA, whichever results in the higher numerical.  38 C.F.R. § 4.86(b).  That numeral will then be elevated to the next higher Roman numeral, and then each ear will be evaluated separately.  Id.

In Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007),  the United States Court of Appeals for Veterans Claims (Court) held that relevant to VA audiological examinations, 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.

Although all the evidence has been reviewed, only the most relevant and salient evidence is discussed below.  See Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000) (holding that the Board must review the entire record but does not have to discuss each piece of evidence).

Historically, service connection for bilateral hearing was established in the June 2009 rating decision on appeal, at which time the AOJ assigned an initial noncompensable disability rating pursuant to 38 C.F.R. § 4.86, Diagnostic Code 6100, effective February 29, 2008, the day the Veteran's claim for service connection was received.  In a June 2016 rating decision, the AOJ awarded a 10 percent disability rating for his service-connected bilateral hearing loss, effective April 1, 2013.   

Pertinent evidence includes VA examinations from April 2009, May 2009, March 2010, November 2012, August 2015, and May 2016, VA treatment records, and the Veteran's lay statements.

In connection with his claim for service connection, the Veteran submitted an October 2007 VA audiogram that revealed the following puretone thresholds, in decibels:

HERTZ
1000
2000
3000
4000
RIGHT
25
25
25
35
LEFT
15
20
30
40

The puretone threshold average was 28 in the right ear and 26 in the left ear.  Speech recognition testing using the Maryland CNC Word List revealed speech recognition ability of 92 percent in the right ear and 100 percent in the left ear.  The Veteran was diagnosed borderline normal hearing sensitivity bilateral between 250 and 3000 Hertz and mild sensorineural hearing loss bilaterally between 4000 and 8000 Hertz.

These audiometric results equate to Level I bilaterally using Table VI.  38 C.F.R. 
§ 4.85.  Applying the percentage ratings for hearing impairment found in Table VII, these results warrant a noncompensable disability rating.  38 C.F.R. § 4.85.

In April 2009, the Veteran underwent a VA examination to evaluate tinnitus.  With regard to hearing loss, he reported difficulties in the following listening situations: at the dinner table; on the telephone; at a church/synagogue, theater, or large room; when someone is whispering; or riding in a car.  He reported that, when he misunderstood someone, he would become annoyed and ask what was said.  He also expressed frustration, but rated his hearing problem as mild.

In May 2009, he underwent a VA examination of his bilateral hearing loss.  He reported that, when he misunderstood someone, he would ask the speaker to repeat him or herself.  He also expressed frustration, and rated his hearing problem as moderate.  Audiometric results revealed the following puretone thresholds, in decibels:

HERTZ
1000
2000
3000
4000
RIGHT
35
45
50
60
LEFT
35
50
50
60

The puretone threshold average was 48 in the right ear and 49 in the left ear.  Speech recognition testing using the Maryland CNC Word List revealed speech recognition ability of 88 percent bilaterally.  The Veteran was diagnosed with moderate bilateral sensorineural hearing loss.  The examiner noted that hearing loss had a moderate to severe impact on his daily activities.

These audiometric results equate to Level II bilaterally using Table VI.  38 C.F.R. § 4.85.  Applying the percentage ratings for hearing impairment found in Table VII, these results warrant a noncompensable disability rating.  38 C.F.R. § 4.85.

In March 2010, he underwent another VA examination.  He reported periods of dizziness, a fullness or plugged sensation, ear pain or discomfort, and a sudden loss of hearing.  Notably, the Veteran's apparent claim for secondary service connection for conditions other than hearing loss that are affecting his ears has been referred to the agency of original jurisdiction, both above, and on two other occasions by the Board.  The Veteran also reported difficulties in the following listening situations: at a church/synagogue, theater, or large room; one-to-one conversation; and when someone is whispering.  When he misunderstood someone, he would ask the speaker to repeat him or herself or ask what was said.  He also expressed frustration, and rated his hearing problem as moderate.  Audiometric results revealed the following puretone thresholds, in decibels:
HERTZ
1000
2000
3000
4000
RIGHT
30
25
35
40
LEFT
20
20
30
35

The puretone threshold average was 33 in the right ear and 26 in the left ear.  Speech recognition testing using the Maryland CNC Word List revealed speech recognition ability of 60 percent in the right ear and 70 percent in the left ear.  The examiner noted that the speech recognition results were possibly exaggerated.  The examiner noted that the testing results were consistent with the May 2009 audiometric results, however the poorer word recognition scores were worse than expected considering that the Veteran only had mild hearing loss.

Given the fact that the examiner indicated that the Veteran's speech recognition were not reliable, Table VIA is applicable.  See 38 C.F.R. § 4.85(c).  These audiometric results equate to Level I bilaterally using Table VIA.  38 C.F.R. § 4.85.  Applying the percentage ratings for hearing impairment found in Table VII, these results warrant a noncompensable disability rating.  38 C.F.R. § 4.85.

In November 2012, he underwent another VA examination.  Audiometric results revealed the following puretone thresholds, in decibels:

HERTZ
1000
2000
3000
4000
RIGHT
30
35
35
45
LEFT
30
35
45
50

The puretone threshold average was 36 in the right ear and 40 in the left ear.  Speech recognition testing using the Maryland CNC Word List revealed speech recognition ability of 84 percent bilaterally.  The Veteran was diagnosed with bilateral sensorineural hearing loss.  

The examiner noted that, with the help of any appropriately fit hearing aid system, the Veteran's hearing loss would have a minimal or no substantial effect on his ability to work.  He reported periods of dizziness, a fullness or plugged sensation, ear pain or discomfort, and a sudden loss of hearing.  He reported difficulties in the following listening situations: at the dinner table; on the telephone; watching television; at a church/synagogue, theater, or large room; one-to-one conversation; listening to people; in a restaurant; at family gatherings; when someone is whispering; and riding in a car.  When he misunderstood someone, he would ask the speaker to repeat him or herself or ask what was said.  He rated his hearing problem as moderate.  Other functional effects included problems in communicating.

These audiometric results equate to Level II bilaterally using Table VI.  38 C.F.R. § 4.85.  Applying the percentage ratings for hearing impairment found in Table VII, these results warrant a noncompensable disability rating.  38 C.F.R. § 4.85.

An April 2013 VA audiogram that revealed the following puretone thresholds, in decibels:

HERTZ
1000
2000
3000
4000
RIGHT
25
30
40
45
LEFT
25
25
45
50

The puretone threshold average was 35 in the right ear and 36 in the left ear.  Speech recognition testing using the Maryland CNC Word List revealed speech recognition ability of 66 percent in the right ear and 72 percent in the left ear.

These audiometric results equate to Level IV bilaterally using Table VI.  38 C.F.R. § 4.85.  Applying the percentage ratings for hearing impairment found in Table VII, these results warrant a 10 percent disability rating.  38 C.F.R. § 4.85.

In January 2015, the Veteran testified before the undersigned Veterans Law Judge.  With regard to his service-connected bilateral hearing loss, he stated that experienced difficulty talking to people and hearing voices.  See January 2015 Hearing Transcript, pg. 3.

In August 2015, he underwent another VA examination.  However, the examiner indicated that the Veteran's hearing acuity could not be tested.  The examiner indicated that there was poor test retest reliability, despite repeated attempts to ascertain the true organic hearing thresholds and speech recognition.  Moreover, the examiner indicated that the inconsistent results between puretone thresholds and speech recognition rendered the speech discrimination testing.  As such, the test results were not valid for rating purposes.

In May 2016, he underwent another VA examination.  Audiometric results revealed the following puretone thresholds, in decibels:

HERTZ
1000
2000
3000
4000
RIGHT
40
55
60
65
LEFT
50
60
70
70

The puretone threshold average was 55 in the right ear and 63 in the left ear.  Speech recognition testing using the Maryland CNC Word List revealed speech recognition ability of 78 percent in the right ear and 74 percent in the left ear.  The Veteran was diagnosed with moderately-severe bilateral sensorineural hearing loss.  

Concerning the functional impact of the Veteran's hearing loss, the examiner noted increased difficulty hearing others, and that his mild to severe bilateral hearing loss caused him trouble with understanding people with excessive background noise, although he was to carry on a conversation with the examiner in a quiet room.  Although the Veteran would have difficulty without his hearing aid, the examiner indicated that he was able to communicate very well and was likely employable.

These audiometric results equate to Level IV in the right ear and Level V in the left ear using Table VI.  38 C.F.R. § 4.85.  Applying the percentage ratings for hearing impairment found in Table VII, these results warrant a 10 percent disability rating.  38 C.F.R. § 4.85.

Based on the VA audiological examinations of record, the Board finds that prior to April 1, 2013, the Veteran's hearing was no worse than Level II bilaterally.  Thus, he is not entitled to an initial compensable rating prior to April 1, 2013, for bilateral hearing loss.  From April 1, 2013, the Veteran's hearing was no worse than Level IV in the right ear and Level V in the left ear.  Thus, he is not entitled to a rating in excess of 10 percent from that date, for bilateral hearing loss.

To the extent that the Veteran contends that his hearing loss was more severe than evaluated, the Board observes that, while he is competent to report symptoms such as difficulty hearing voices and understanding speech, he is not competent to report that his hearing acuity is of sufficient severity to warrant a compensable evaluation under VA's tables for rating hearing loss disabilities because such an opinion requires medical expertise (training in evaluating hearing impairment), which he has not been shown to have.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Charles v. Principi, 16 Vet. App. 370 (2002); Woehlaert v. Nicholson, 21 Vet. App. 456 (2007).

Therefore, based on the evidence of record, the Board finds that the Veteran is not entitled to an initial compensable rating for his bilateral hearing loss prior to April 1, 2013, or a rating in excess of 10 percent thereafter.  The audiometric testing highlighted above did not reveal audiological results that would warrant higher ratings.  As the preponderance of the evidence is against the Veteran's claim, the benefit of the doubt provision does not apply.


ORDER

An initial compensable rating prior to April 1, 2013, and a rating in excess of 10 percent thereafter, for bilateral hearing loss is denied.




____________________________________________
BETHANY L. BUCK
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs