Citation Nr: 1717153	
Decision Date: 05/18/17    Archive Date: 06/05/17

DOCKET NO.  10-26 758	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUE

Entitlement to a compensable rating for left ear hearing loss.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

S. Medina, Associate Counsel



INTRODUCTION

The Veteran served on active duty from July 1961 to June 1982. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.

The Veteran was scheduled for a hearing before a Veterans Law Judge, but he submitted an August 2013 letter stating that he wished to cancel his hearing request and the request for a personal hearing was withdrawn.  See 38 C.F.R. § 20.702.

This matter was previously before the Board in January 2014 and June 2016, at which time the Veteran's claim was remanded for additional development, which has been completed. 

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016).  38 U.S.C.A. § 7107(a)(2) (West 2014).


FINDING OF FACT

The most probative evidence demonstrates that the Veteran's left ear hearing loss is manifested by hearing impairment corresponding to no higher than an auditory acuity of Level II.


CONCLUSION OF LAW

The criteria for an initial compensable disability rating for left ear hearing loss have not been met.  38 U.S.C.A. § 1155, 5107 (West 2014); 38 C.F.R. §§ 3.321, 4.85, Diagnostic Code 6100 (2016).


REASONS AND BASES FOR FINDING AND CONCLUSION

Disability ratings are determined by the application of the VA's Schedule for Rating Disabilities.  Separate diagnostic codes identify the various disabilities, which are based, as far as practically can be determined, on average impairment in earning capacity.  38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. Part 4 (2016).  When rating a service-connected disability, the entire history must be borne in mind.  Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  The Board will also 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).

Where there is a question as to which of two ratings 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 (2016).  Reasonable doubt regarding the degree of disability will be resolved in the Veteran's favor. 38 C.F.R. § 4.3 (2016). 

In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified.  Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances.  38 C.F.R. § 4.21 (2016).  At the time of an initial rating, separate ratings can be assigned for separate periods of time based on facts found, a practice known as "staged" ratings.  Fenderson, 12 Vet. App. at 126. 

The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided.  38 C.F.R. § 4.14 (2016).  The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability.  See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994).

The Veteran contends that his left ear hearing loss disability is worse than the currently assigned rating.

Disability ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are made.  Bruce v. West, 11 Vet. App. 405 (1998); Lendenmann v. Principi, 3 Vet. App. 345 (1992).  The regulations set forth eleven auditory acuity levels, designated from Roman numerals I to XI, in escalating order of hearing impairment.  38 C.F.R. § 4.85. 

The Ratings 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.  Id.  Table VII is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment of each ear.  Table VIa is used when the examiner certifies that the use of speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc., or when indicated under the provisions of 38 C.F.R. § 4.86 (2016).  See 38 C.F.R. § 4.85(c).

Additional considerations apply when exceptional patterns of hearing loss are demonstrated.  Specifically, 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).  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). 

If, as in the instant case, impaired hearing is service-connected in only one ear, in order to determine the percentage evaluation from Table VII, the non-service-connected ear will be assigned a Roman numeral designation of I, subject to the regulations providing special consideration for paired organs and extremities.  38 C.F.R. §§ 3.383, 4.85(f).  Additional compensation is not available to the Veteran based on a combination of a service-connected and non-service-connected disability, however, because, as discussed below, the Veteran's service-connected hearing impairment is not manifested to a degree of 10 percent or greater.  38 C.F.R. § 3.383 (2016).

In Martinak v. Nicholson, 21 Vet. App. 447 (2007), the United States Court of Appeals for Veterans Claims (Court) held that 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.  Martinak, 21 Vet. App. at 455.  The Court also noted, however, that even if an audiologist's description of the functional effects of the veteran's hearing disability was somehow defective, the veteran bears the burden of demonstrating any prejudice caused by a deficiency in the examination.  Id. 

Turning to the merits of the claim, on March 2007 VA audiology examination, pure tone thresholds for the left ear, in decibels, at 1000, 2000, 3000, and 4000 Hz were as follows: 10, 25, 50, and 65, for an average of 37.5 decibels.  CNC word list revealed 84 percent in the left ear.  The examining audiologist diagnosed left ear moderate to moderately severe sensorineural hearing loss.  The effect of left ear hearing loss on activities of daily living was that he did not hear well, especially in a crowd of people, and had to turn the television volume up high to hear it.

Applying the findings of the March 2007 VA examination to the rating criteria for hearing impairment, the Board finds that the criteria for a compensable evaluation for left ear hearing loss have not been met.  Considering that the Veteran's left ear manifests an average puretone threshold of 37.5 decibels, with a 84 percent speech discrimination, reference to 38 C.F.R. § 4.85, Table VI, shows his left ear hearing loss to be Level II impairment.  Since his right ear is not service-connected, a Roman numeral I is used for this ear in Table VII.  38 C.F.R. § 4.85(f).  Applying these results to Table VII, a noncompensable evaluation is assigned.

Further, on January 2012 VA audiology examination, pure tone thresholds for the left ear, in decibels, at 1000, 2000, 3000, and 4000 Hz were as follows: 25, 40, 55, and 65, for an average of 46.3 decibels.  However, CNC word list was marked as could not test (CNT) as the use of the speech discrimination score was not appropriate for this Veteran because of language difficulties, cognitive problems, inconsistent speech discrimination scores, etc., that make combined use of puretone average and speech discrimination scores inappropriate.  The examining audiologist diagnosed left ear sensorineural hearing loss.  The effect of left ear hearing loss on activities of daily living, including his ability to work, was that he did not hear well and could not understand what people say.

Applying the findings of the January 2012 VA examination to the rating criteria for hearing impairment, the Board finds that the criteria for a compensable evaluation for left ear hearing loss have not been met.  Considering that the Veteran's left ear manifests an average puretone threshold of 46.3 decibels, reference to 38 C.F.R. § 4.85, Table VIa, shows his left ear hearing loss to be Level II impairment.  Since his right ear is not service-connected, a Roman numeral I is used for this ear in Table VII.  38 C.F.R. § 4.85(f).  Applying these results to Table VII, a noncompensable evaluation is assigned.

In May 2016, the Veteran's representative stated in a post-remand brief that the Veteran's hearing had worsened since his January 2012 audiology examination.

Per the June 2016 remand, the Veteran underwent VA audiology examination in July 2016.  On the July 2016 VA hearing loss and tinnitus Disability Benefits Questionnaire examination pure tone thresholds for the left ear, in decibels, at 1000, 2000, 3000, and 4000 Hz were as follows: 30, 45, 55, and 60, for an average of 48 decibels.  CNC word list was marked as CNT as the use of the word recognition score is not appropriate for this Veteran because of language difficulties, cognitive problems, inconsistent word recognition scores, etc., that make combined use of puretone average and word recognition scores inappropriate.  The audiologist diagnosed sensorineural hearing loss.  With regard to the ordinary conditions of life, the left ear hearing loss impacted his ability to work as the Veteran reported difficulty understanding, especially in crowds, he has to have his wife repeat things and has to turn the television volume up high to hear it.

Applying the findings of the July 2016 VA examination to the rating criteria for hearing impairment, the Board finds that the criteria for a compensable evaluation for left ear hearing loss have not been met.  Considering that the Veteran's left ear manifests an average puretone threshold of 48 decibels, reference to 38 C.F.R. § 4.85, Table VIa, shows his left ear hearing loss to be Level II impairment.  Since his right ear is not service-connected, a Roman numeral I is used for this ear in Table VII. 38 C.F.R. § 4.85(f).  Applying these results to Table VII, a noncompensable evaluation is assigned.

Based on these findings the Board finds that a preponderance of the evidence is against a finding that the service-connected left ear hearing loss disability warranted an initial higher rating.  The Board has considered the provisions of 38 C.F.R. § 4.86 governing exceptional patterns of hearing impairment, but they do not apply because the Veteran did not demonstrate an exceptional pattern of hearing impairment.

The Board is mindful that an audiologist must provide a description of the functional effects caused by a hearing loss disability.  Martinak, 21 Vet. App. 447.  On March 2007, January 2012, and July 2016 VA examinations, the Veteran complained of trouble hearing and understanding others and difficulty hearing the television requiring him to turn his television volume up.  The Board finds these comments are sufficient to comply with the applicable VA policies.  Martinak, 21 Vet. App. 447 (VA audiologist's indication in report that Veteran's hearing loss affected his ability to sleep was sufficient to comply with requirements of VA's own internal guidance documents that VA audiologists describe the effects of a hearing disability on occupational functioning and daily activities).  Additionally, the Board has considered various lay statements from the Veteran attesting to the impact of his hearing loss.  The Board finds that the functional effects of the Veteran's left ear hearing loss disability are adequately addressed by the record.

While the Board understands the Veteran's central concern that his left ear hearing loss disability has negatively impacted his quality of life and that he has difficulty hearing in social situations and at work, findings made on the March 2007, January 2012, and July 2016 VA examinations do not support the assignment of an initial higher rating of 10 percent for his left ear hearing loss disability. 

The critical question in this case is whether the problems the Veteran has meet the higher evaluations under the rating criteria, not that the Veteran has some problems with this issue.  For reasons cited above, the Veteran is not entitled to an initial compensable rating for his left ear hearing loss disability.  Accordingly, the Board finds that the preponderance of the evidence is against the assignment of a compensable rating for his left ear hearing loss disability.

With regard to his left hearing loss disability, the Veteran is competent to report his complaints of difficulty hearing, as these observations come to him through his senses.  Layno v. Brown, 6 Vet. App. 465, 469 (1994).  The Board also acknowledges the Veteran's belief that his symptoms are of such severity as to warrant a higher rating and has taken these contentions seriously.  He is not, however, competent to identify a specific level of disability of his left ear hearing loss disability according to the appropriate diagnostic code.  On the other hand, such competent evidence concerning the nature and extent of the Veteran's left ear hearing loss disability has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations.  The medical findings (as provided in the examination reports) directly address the criteria under which these disabilities are evaluated. 

Additionally, with respect to an extraschedular rating under 38 C.F.R. § 3.321 for his increased disability claim, the applicable rating criteria contemplate all impairment resulting from his left ear hearing loss disability.  The criteria reasonably describe the Veteran's disability level and symptomatology, specifically his complaints of difficulty hearing and limitations on activities of daily living due to his disability.  The assigned schedular ratings are, therefore, adequate and referral for extraschedular consideration is not required under 38 C.F.R. § 3.321(b)(1) (2016).  Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). 

The Board has also considered whether an inferred claim for a total disability rating based on individual unemployability (TDIU) under Rice v. Shinseki, 22 Vet. App. 447 (2009) has been raised.  However, the Veteran has not alleged, nor does the record reflect, that the Veteran was unemployable on account of his service-connected disabilities, to include his left ear hearing loss disability.  Therefore, the Board finds that the question of entitlement to TDIU due to a service-connected disability has not been reasonably raised by the record.  See Rice, 22Vet. App. at 453-54.

Finally, the Board notes that under Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014), a Veteran may be awarded an extraschedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where the evaluation of the individual conditions fails to capture all the service-connected disabilities experienced.  However, in this case, after applying the benefit of the doubt under Mittleider v. West, 11 Vet. App. 181 (1998), there are no additional service-connected disabilities that have not been attributed to a specific service-connected disability.  Accordingly, this is not an exceptional circumstance in which extraschedular consideration may be required to compensate the Veteran for a disability that can be attributed only to the combined effect of multiple conditions.

Duties to Notify & Assist

VA has a duty to notify and assist a claimant in the development of a claim.  With regard to the claims for service connection for a left ear hearing loss disability, there is no indication in this record of a failure to notify.  See 38 U.S.C.A. §§ 5102, 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2016); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).  The Board also finds the duty to assist has been satisfied.  The Veteran's service treatment records, post service treatment records, and VA examination reports are of record.  

The Board further notes that actions requested in the prior remand have been undertaken.  In this regard, the Veteran was asked to identify private treatment providers who treated his left ear hearing loss and submit signed authorizations for to obtain those records by letter in July 2016; however, the Veteran did not respond.  Additionally, VA treatment records were obtained and the Veteran was afforded a VA audiology examination to address the current degree of severity of his service-connected left ear hearing loss disability.  Accordingly, the Board finds that there has been substantial compliance with the prior remand instructions and no further action is necessary.  See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)).

After a careful review of the file, 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).

ORDER

Entitlement to a compensable rating for left ear hearing loss is denied.



JOHN J. CROWLEY
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs