Citation Nr: 1735486	
Decision Date: 08/25/17    Archive Date: 09/06/17

DOCKET NO.  07-38 813	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama


THE ISSUE

Entitlement to a compensable initial disability rating prior to June 26, 2012, and initial ratings in excess of 20 percent, 30 percent, and 40 percent for the periods prior to July 11, 2016, prior to October 25, 2016, and beginning October 25, 2016, respectively, for bilateral hearing loss.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran




ATTORNEY FOR THE BOARD

A. Hampton, Associate Counsel


INTRODUCTION

The Veteran served on active duty from February 1986 to February 1989.

This matter comes before the Board of Veterans' Appeals (Board) on appeal of a June 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama.  

The June 2006 rating decision granted service connection for bilateral hearing loss and assigned a noncompensable initial rating, effective August 29, 2005, the date the Veteran's claim of service connection for bilateral hearing loss was received by VA.  In an August 2016 rating decision, the RO increased the initial rating to 20 percent, effective June 26, 2012, and 30 percent, effective July 11, 2016.  In a February 2017 rating decision, the RO increased the initial rating to 40 percent, effective October 25, 2016.  

In June 2011, the Veteran testified at a hearing before a Veterans Law Judge (VLJ) at his local RO (Travel Board hearing).  A transcript of the hearing is of record.  In a May 2017 letter, the Veteran was informed the VLJ who presided at his hearing was no longer employed at the Board, and he was given the option to attend an additional, optional hearing.  In a May 2017 correspondence, the Veteran indicated he did not wish to attend an additional hearing and wished for his claim to be considered by the Board based on the evidence of record.

The record before the Board consists of electronic records within Virtual VA and the Veterans Benefits Management System.



FINDINGS OF FACT

1.  For the period prior to June 26, 2012, the Veteran's hearing impairment was no worse than Level I in the right ear and Level I in the left ear.

2.  For the period between June 26, 2012, and July 10, 2016, the Veteran's hearing impairment was no worse than Level VII in the right ear and Level III in the left ear.

3.  For the period between July 11, 2016, and October 24, 2016, the Veteran's hearing impairment was no worse than Level VIII in the right ear and Level V in the left ear.

4.  For the period beginning October 25, 2016, the Veteran's hearing impairment has been no worse than Level IX in the right ear and Level V in the left ear.


CONCLUSIONS OF LAW

1.  For the period prior to June 26, 2012, the criteria for an initial compensable disability rating for bilateral hearing loss were not met.  38 U.S.C.A. § 1155 (West 2015); 38 C.F.R. § 4.85, Diagnostic Code 6100 (2016).

2.  For the period between June 26, 2012, and July 10, 2016, the criteria for an initial rating higher than 20 percent for bilateral hearing loss were not met.  38 U.S.C.A. § 1155 (West 2015); 38 C.F.R. § 4.85, Diagnostic Code 6100 (2016).

3.  For the period between July 11, 2016, and October 24, 2016, the criteria for an initial rating higher than 30 percent for bilateral hearing loss were not met.  38 U.S.C.A. § 1155 (West 2015); 38 C.F.R. § 4.85, Diagnostic Code 6100 (2016).

4.  For the period beginning October 25, 2016, the criteria for an initial rating higher than 40 percent for bilateral hearing loss have not been met.  38 U.S.C.A. § 1155 (West 2015); 38 C.F.R. § 4.85, Diagnostic Code 6100 (2016).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Legal Criteria  

Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2015).  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 their residual conditions in civil occupations.  38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.321(a), 4.1 (2016).  

Disability ratings for a hearing loss disability are derived from mechanical application of the rating schedule to the numeric designations resulting from audiometric testing.  See Lendenmann v. Principi, 3 Vet. App. 345 (1992).  The rating schedule establishes 11 auditory hearing acuity levels based upon average puretone thresholds and speech discrimination.  See 38 C.F.R. § 4.85 (2016).  An examination for hearing impairment for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a puretone audiometry test.  Examinations will be conducted without the use of hearing aids.  38 C.F.R. § 4.85(a) (2016).

Table VI, "Numeric Designation of Hearing Impairment Based on Puretone Threshold Average and Speech Discrimination," is used to determine a Roman numeral designation (I through XI) for hearing impairment based on a combination of the percent of speech discrimination (horizontal rows) and the puretone threshold average (vertical columns).  The Roman numeral designation is located at the point where the row and column intersect.  38 C.F.R. § 4.85(b) (2016).

Table VIa, "Numeric Designation of Hearing Impairment Based Only on Puretone Threshold Average," is used to determine a Roman numeral designation (I through XI) for hearing impairment based only on puretone threshold average.  Table VIa is used when the examiner certifies that the use of the speech discrimination test is not appropriate due to language difficulties, inconsistent speech discrimination scores, etc., or when indicated under the provisions of § 4.86.  38 C.F.R. § 4.85(c) (2016).

"Puretone threshold average" as used in Tables VI and VIa is the sum of the puretone thresholds at 1000, 2000, 3000 and 4000 Hertz and divided by four.  This average is used in all cases (including those under § 4.86) to determine a Roman numeral designation from Tables VI and VIa.  38 C.F.R. § 4.85(d) (2016). 

Table VII, "Percentage Evaluations of Hearing Impairment," is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment in each ear.  The horizontal rows represent the ear having the better hearing and the vertical columns represent the ear having the poorer hearing.  The percentage evaluation is located at the point where the row and the column intersect.  38 C.F.R. § 4.85(e) (2016).

Provisions for evaluating exceptional patterns of hearing impairment are as follows:

(a) When the puretone thresholds at each of the four specified frequencies (1000, 2000, 3000 and 4000 Hertz) are 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;

(b) When the puretone thresholds are 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; the numeral will then be elevated to the next higher Roman numeral.  Each ear will be evaluated separately.  38 C.F.R. § 4.86 (2016).

Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA.  VA shall consider all information and medical and lay evidence of record.  Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107 (West 2014); 38 C.F.R. § 3.102 (2016); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 

Analysis

In accordance with 38 C.F.R. §§ 4.1, 4.2, 4.41, 4.42 (2015) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the service-connected disability under appeal.  The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes.  Moreover, the Board is of the opinion that this case presents no evidentiary considerations which would warrant an exposition of remote clinical histories and findings pertaining to the disability under review.  

The Veteran has undergone audiometric testing on numerous occasions since initiating his claim.  He was afforded a VA audiology examination in November 2005, at which time puretone thresholds were as follows:



HERTZ



1000
2000
3000
4000
RIGHT
40
20
30
30
LEFT
20
15
20
20

Speech discrimination according to the Maryland CNC test was 94 percent in the right ear and 96 percent in the left ear.  The examiner diagnosed moderate to severe bilateral sensorineural hearing loss.

Applying the values above to Table VI results in a Level I Roman numeral designation for the right ear and a Level I Roman numeral designation for the left ear.  Application of a Level I designation and a Level I designation to Table VII results in a noncompensable rating.  The readings reported in this evaluation do not meet the requirements for evaluation as an exceptional pattern of impairment under 38 C.F.R. § 4.86 (2016).

Social Security Administration (SSA) records show an audiogram was performed in June 2009.  Puretone thresholds were as follows:



HERTZ



1000
2000
3000
4000
RIGHT
50
40
50
60
LEFT
25
25
25
25

Speech discrimination was 94 percent in the right ear and 96 percent in the left ear.  Whether a Maryland CNC test was used was not specified.

Applying the values above to Table VI results in a Level I Roman numeral designation for the right ear and a Level I Roman numeral designation for the left ear.  Again, application of a Level I designation and a Level I designation to Table VII results in a noncompensable rating.  The readings reported in this evaluation do not meet the requirements for evaluation as an exceptional pattern of impairment under 38 C.F.R. § 4.86 (2016).

The Veteran was afforded an additional VA audiology examination on June 26, 2012.  Puretone thresholds were as follows:



HERTZ



1000
2000
3000
4000
RIGHT
70
80
90
100
LEFT
50
60
70
80

Speech discrimination with Maryland CNC testing was 80 percent in the right ear and 88 percent in the left ear. 

Because the puretone thresholds at each of the four frequencies for the right ear were more than 55 decibels, the right ear's values are applied to Table VIa rather than Table VI.  See 38 C.F.R. § 4.86(a) (2016).  Applying the values for the right ear to Table VIa results in a Level VII Roman numeral designation for the right ear.  Applying the values for the left ear to Table VI results in a Level III Roman numeral designation for the left ear.  Application of these Roman numeral designations to Table VII results in a 20 percent rating.  These results formed the basis of the RO's assignment of a 20 percent rating as of the date of the examination.

The Veteran was afforded an additional VA audiology examination in February 2016.  Puretone thresholds were as follows:


1000
2000
3000
4000
RIGHT
70
70
90
90
LEFT
55
45
50
50

Speech discrimination was noted to be 40 percent in the right ear and 88 percent in the left ear using the Maryland CNC test.

Again, because the puretone thresholds at each of the four frequencies were higher than 55 decibels for the right ear, the right ear's values are applied to Table VIa.  See 38 C.F.R. § 4.86(a) (2016).  Applying the values for the right ear to Table VIa results in a Level VII Roman numeral designation for the right ear.  Applying the values for the left ear to Table VI results in a Level II Roman numeral designation for the left ear.  Application of these Roman numeral designations to Table VII results in a 10 percent rating.  However, because, as shown below, sustained improvement in hearing was not shown, the RO did not reduce the Veteran's initial rating from 20 percent to 10 percent based on this examination.

On July 11, 2016, a private physician completed a VA Disability Benefits Questionnaire (DBQ) related to the Veteran's hearing loss.  Puretone thresholds were as follows:


1000
2000
3000
4000
RIGHT
80
90
85
80
LEFT
75
70
65
60

Speech discrimination was noted to 100 percent in both ears using the Maryland CNC test.

Because the puretone thresholds at each of the four frequencies were higher than 55 decibels in both ears, each ear's values are applied to Table VIa.  See 38 C.F.R. § 4.86(a) (2016).  Applying the values to Table VIa results in a Level VIII Roman numeral designation for the right ear and a Level V Roman numeral designation for the left ear.  Application of these Roman numeral designations to Table VII results in a 30 percent rating.  These results formed the basis of the RO's assignment of a 30 percent initial rating as of the date of the DBQ.

The Veteran was afforded a final VA audiology examination in January 2017.  Puretone thresholds were as follows:


1000
2000
3000
4000
RIGHT
85
95
100
105
LEFT
65
65
60
60

Speech discrimination was noted to 56 percent in the right ear and 76 percent in the left ear using the Maryland CNC test.

Again, because the puretone thresholds at each of the four frequencies were higher than 55 decibels in each ear, each ear's values are applied to Table VIa.  See 38 C.F.R. § 4.86(a) (2016).  Applying the values to Table VIa results in a Level IX Roman numeral designation for the right ear and a Level V Roman numeral designation for the left ear.  Application of these Roman numeral designations to Table VII results in a 40 percent rating.  These results formed the basis of the RO's assignment of a 40 percent initial rating as of the date of the examination.

The Board has carefully reviewed the entire record.  The Board acknowledges that numerous additional audiograms appear in the record, in addition to otolaryngology notes which reference the Veteran's hearing loss.  However, upon careful review, each audiogram and treatment note the Board has not referenced above either fails to provide specific puretone threshold values for each of the four relevant frequencies, or fails to specify the use of Maryland CNC testing, as required by 38 C.F.R. § 4.85.  In light of the mechanical nature of the Rating Schedule with respect to hearing loss ratings, the Board has elected to disregard those audiograms and notes that do not provide the medical information required for rating purposes.

The Board has carefully applied the puretone threshold and speech discrimination values detailed above to Tables VI, VIa, and VII.  Upon a careful review, it is evident that the criteria for a compensable initial rating under Diagnostic Code 6100 were not met prior to June 26, 2012.  It is also evident that the criteria for initial ratings higher than 20 percent, 30 percent, and 40 percent, were not met prior to July 11, 2016, prior October 25, 2016, or beginning October 25, 2016, respectively.

The Board briefly notes that in a February 2017 rating decision, the Veteran was granted entitlement to a TDIU due to service-connected disabilities, effective October 25, 2016.  The Veteran has not indicated disagreement with any aspect of the February 2017 decision.  As such, the Board finds the issue of entitlement to a TDIU prior to October 25, 2016, is not before the Board. 


ORDER

Entitlement to an initial rating higher than 0 percent, 20 percent, 30 percent, and 40 percent for the periods prior to June 26, 2012, prior to July 11, 2016, prior to October 25, 2016, and beginning October 25, 2016, for bilateral hearing loss, is denied.




____________________________________________
STEVEN D. REISS
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs