Citation Nr: 1741237	
Decision Date: 09/21/17    Archive Date: 10/02/17

DOCKET NO.  16-24 871	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Jackson, Mississippi


THE ISSUES

1. Entitlement to an initial compensable disability evaluation for bilateral hearing loss prior to June 2, 2015.  

2. Entitlement to a disability evaluation in excess of 40 percent for bilateral hearing loss beginning June 2, 2015.


REPRESENTATION

Veteran represented by:	Virginia A. Girard-Brady, Attorney


ATTORNEY FOR THE BOARD

K.M. Walker, Associate Counsel


INTRODUCTION

The Veteran served on active duty in the United States Army Reserve from January 1961 to June 1967.

This matter is before the Board of Veterans' Appeals (Board) on appeal from a February 2014 rating decision by the Department of Veteran Affairs (VA) Regional Appeals Management Center.  The February 2014 rating decision implemented the Board's January 2014 grant of service connection for bilateral hearing loss and assigned an initial compensable disability rating effective April 21, 2010.  

In March 2014 the Veteran filed a Notice of Disagreement.  Additionally, in May 2014, the Veteran filed a Notice of Appeal with the U. S. Court of Appeals for Veterans Claims (CAVC).  The Secretary filed a motion to dismiss based on a lack of jurisdiction because there was no existing case or controversy for the CAVC to adjudicate.  In September 2014, the Court ordered the Veteran to show cause why the appeal should not be dismissed.  On November 2014, the CAVC dismissed the Veteran's appeal based on a lack of jurisdiction.  In an April 2016 rating decision, the RO granted the Veteran a 40 percent increased evaluation effective June 2, 2015 and the 0 percent evaluation remained intact for the period prior to June 2, 2015.  Despite the 40 percent increased evaluation effective June 2, 2015, it is generally presumed the maximum benefit by law and regulation is sought.  As such, a claim remains in controversy where less than the maximum benefit available is awarded.  See AB v. Brown, 6 Vet. App. 35 (1993).  

The issue of entitlement to an initial compensable evaluation for bilateral hearing loss prior to June 2, 2015 is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDING OF FACT

Following June 2, 2015, at worst, the Veteran had a Level VII hearing loss in the right ear and Level VIII hearing loss in the left ear.



CONCLUSION OF LAW

The criteria for a disability evaluation in excess of 40 percent for bilateral hearing loss after June 2, 2015, have not been met.  38 U.S.C.A. §§ 1155,  5107 (West 2014); 38 C.F.R. §§ 3.102, 4.1-4.14, 4.85, 4.86, Diagnostic Code 6100 (2016).


REASONS AND BASES FOR FINDING AND CONCLUSION

Neither the Veteran nor his attorney have raised any issues with the duty to notify or duty to assist.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument).

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service.  The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations.  38 U.S.C.A. §1155; 38 C.F.R. §4.1. 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.  38 C.F.R. §4.7.  After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the claimant.  38 C.F.R. § 4.3 (2016).  

Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings.  Hart v. Mansfield, 21 Vet. App. 505 (2007).  The Veteran's disability should be viewed in relation to its history.  38 C.F.R. § 4.1 (2016); Schafrath v. Derwinski, 1 Vet. App. 589 (1995).  Given the nature of the present claim for a higher initial evaluation, the Board has considered all evidence of severity since the effective date for the award of service connection.  Fenderson v. West, 12 Vet. App. 119 (1999).  

The Veteran's bilateral hearing loss is assigned a noncompensable evaluation prior to June 2, 2015 and a 40 percent rating on and after June 2, 2015, pursuant to 38 C.F.R. §4.85, Diagnostic Code 6100.

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 Hertz.  To rate the degree of disability for 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 (2016).  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, or Table VIA in exceptional cases as described in 38 C.F.R. § 4.86, and Table VII.  38 C.F.R. § 4.85 (2016).  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 (2016).  In such cases, the Roman numeral value is determined using both Table VI and VIA and whichever table results in a higher Roman numeral value is used to calculate a disability evaluation using Table VII.  Id.  

The Board has considered whether the Veteran is entitled to a disability rating in excess of 40 percent beginning June 2, 2015.  He underwent a VA examination on June 2, 2015, which was the basis for the grant of the 40 percent evaluation.  His puretone thresholds, in decibels, were as follows: 




HERTZ



500
1000
2000
3000
4000
RIGHT
10
25
60
90
90
LEFT
15
30
75
85
100

The average puretone threshold was 66 in the right ear and 73 in the left ear.  His Maryland CNC word recognition was 60 percent in each ear.  

During the examination, the audiologist described the functional effects of the Veteran's hearing loss on his daily activities.  38 C.F.R. § 4.10 (2016); see also Martinak v. Nicholson, 21 Vet. App. 447, 455-56 (2007).  Specifically, he stated that it was difficult to understand people speaking.  

Application of the results of the June 2015 examination requires consideration of both Table VI and Table VIA, as the Veteran has an exceptional pattern of hearing loss in his left ear, as set forth in 38 C.F.R. § 4.86.  Using Table VI, the Veteran has Level VII hearing loss.  Using Table VIA, he has Level VI hearing loss.  Therefore, use of Table VI is more favorable.  

The Veteran does not have an exceptional pattern of hearing loss in his right ear.  Application of Table VI to Table VII shows Level VII hearing loss in the right ear.  

Applying Level VII for both ears results in a 40 percent disability rating.  38 C.F.R. § 4.85 (2016).

There are no other audiograms of record after June 2, 2015.  Therefore, the medical evidence of record does not support a rating in excess of 40 percent beginning June 2, 2015.  

The Board has also considered the Veteran's lay assertions and other lay statements of record regarding his hearing loss.  However, the assignment of disability ratings for hearing impairment are derived by a mechanical application of the Rating Schedule to the numeric designations based on the audiology examination results.  See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992).  It is clear from the Rating Schedule that a higher rating can be awarded only when loss of hearing has reached a specified measurable level.  As such, an increased evaluation for the period after June 2, 2015, is not warranted.  The Veteran in this case has not been shown to possess the necessary training, skills, or experience needed to state whether the criteria for a higher rating are met. 

Finally, a total disability rating based on individual unemployability (TDIU) is not warranted because the Veteran does not contend, and the evidence does not show, that his disability renders him unemployable.  Rice v. Shinseki, 22 Vet. App. 447 (2009); see also Jackson v. Shinseki, 587 F.3d 1106 (Fed. Cir. 2009).


ORDER

Entitlement to an evaluation in excess of 40 percent for bilateral hearing loss on or after June 2, 2015 is denied.


REMAND

As stated above, the Veteran's bilateral hearing loss is currently assigned a noncompensable evaluation prior to June 2, 2015 and a 40 percent rating on and after June 2, 2015, pursuant to 38 C.F.R. §4.85, Diagnostic Code 6100.  The Veteran has asserted that the April 2010 audiogram from his private physician should be used to afford him a 40 percent evaluation prior to June 2, 2015.

The Veteran submitted an April 2010 private audiology report in support of his claim.  Dr. T. W. opined the Veteran's hearing loss was aggravated and related to his active service.  

The Board interprets the graphical data to read as found below.  Kelly v. Brown, 7 Vet. App. 471 (1995).  Pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
10
25
55
80
90
LEFT
15
35
65
85
95

The pure tone average was 62 in the right ear and 70 in the left ear.  Dr. T. W. recorded the Veteran's speech discrimination as 64 percent in the right ear and 60 percent in the left ear.  To be adequate for rating purposes, the Maryland CNC Test must be used for speech discrimination testing.  It is unclear whether the speech discrimination testing was conducted using the Maryland CNC test.  See 38 C.F.R. § 4.85(a) (the controlled speech discrimination test administered by a state-licensed audiologist must be the Maryland CNC Test).  Therefore, the AOJ should seek clarification from Dr. T. W. to determine whether the Maryland CNC Test was used.  See Savage v. Shinseki, 24 Vet. App. 259, 263-64 (2011).

Accordingly, the case is REMANDED for the following action:

1.  The AOJ should contact Dr. T.W., the physician who conducted the April 2010 private audiogram.  He should be asked to clarify whether speech discrimination testing was conducted using the Maryland CNC test.  Any necessary authorization should be requested from the Veteran.

All attempts to seek clarification and any response received must be documented in the claims file.

2.  After completing the above action, the AOJ should readjudicate the issue on appeal.  If the benefit sought is not granted, the Veteran and his attorney should be furnished a supplemental statement of the case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review.

The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).




____________________________________________
D. Martz Ames
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs