Citation Nr: 1747331	
Decision Date: 10/23/17    Archive Date: 10/31/17

DOCKET NO.  13-24 747	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Seattle, Washington


THE ISSUES

1. Entitlement to a compensable rating prior to November 22, 2016, for otitis media with deafness (claimed as bilateral hearing loss).

2. Entitlement to a rating in excess of 40 percent from November 22, 2016, to February 5, 2017, for otitis media with deafness (claimed as bilateral hearing loss).

3. Entitlement to a rating in excess of 10 percent since February 6, 2017, for otitis media with deafness (claimed as bilateral hearing loss).


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

S. Anwar, Associate Counsel


INTRODUCTION

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).

The Veteran had active service from January 1959 to August 1978.

This matter comes before the Board of Veterans' Appeals (Board) from a January 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. 

In June 2017, the RO granted a 40 percent disability evaluation from November 22, 2016, to February 5, 2017, and a 10 percent disability evaluation since February 6, 2017. As neither of these grants is for the maximum schedular evaluation available, the appeal remains in controversy. See AB v. Brown, 6 Vet. App. 35, 38 (1993) (where a claimant has filed a NOD as to an RO decision assigning a particular rating, a subsequent RO decision assigning a higher rating, but less than the maximum available benefit, does not abrogate the pending appeal).

The case was remanded in October 2016 for evidentiary development and for new medical examination. All actions ordered by the remand have been accomplished. 

Pursuant to VA's duties to notify and assist the Veteran, VA advised the claimant how to substantiate an application for benefits, obtained all relevant and available evidence, and conducted any appropriate medical inquiry. The appeal is ready for appellate review. This appeal was processed using the Virtual VA and Veterans Benefits Management System (VBMS) paperless claims processing system. 





FINDINGS OF FACT

1. Prior to November 16, 2016, the Veteran's bilateral hearing loss manifested with 77 average pure tone decibel hearing loss and 100 percent speech discrimination for the left ear; and 49 average pure tone decibel hearing loss and 96 percent speech discrimination for the right ear.

2. Since November 16, 2016, until February 5, 2017, the Veteran's bilateral hearing loss manifested with 103 average pure tone decibel hearing loss and 52 percent speech discrimination in the left ear; and 64 average pure tone decibel hearing loss and 96 percent speech discrimination in the right ear.

3. Since February 6, 2017, the Veteran's bilateral hearing loss manifested with 94 average pure tone decibel hearing loss and 48 percent speech discrimination in the left ear; and 59 average pure tone decibel hearing loss and 96 percent speech discrimination in the right ear.


CONCLUSIONS OF LAW

1. The criteria for a compensable rating for bilateral hearing loss prior to November 22, 2016, have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.321, 4.85, 4.86, 4.87a, Diagnostic Code 6100 (2016).  

2. The criteria for a rating in excess of 40 percent for bilateral hearing loss since November 22, 2016, to February 5, 2017, have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.321, 4.85, 4.86, 4.87a, Diagnostic Code 6100 (2016).  

3. The criteria for a rating in excess of 10 percent for bilateral hearing loss since February 6, 2017, have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.321, 4.85, 4.86, 4.87a, Diagnostic Code 6100 (2016).  




REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Disability ratings are determined by applying criteria set forth in VA's Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations should be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7.

For claims for increased ratings which arise out of an initial grant of service connection, the Board must consider the application of "staged" ratings for different periods from the filing of the claim forward, if the evidence suggests that such a rating would be appropriate. See Fenderson v. West, 12 Vet. App. 119 (1999).

The Rating Schedule provides rating tables for the evaluation of hearing impairment. Table VI assigns a Roman numeral designation (I through XI) for hearing impairment based on the pure tone threshold average and controlled speech discrimination (Maryland CNC) testing. Table VIa assigns a Roman numeral designation for hearing impairment based only on the pure tone threshold average, and is used when speech discrimination testing is not appropriate or when indicated under the provisions of 38 C.F.R. § 4.86, which relate to exceptional patterns of hearing impairment. The "pure tone threshold average" is the sum of the pure tone thresholds at 1000, 2000, 3000, and 4000 Hertz, divided by four. 38 C.F.R. § 4.85 (d). Table VII is used to determine the rating assigned by combining the Roman numeral designations for hearing impairment of each ear. 38 C.F.R. § 4.85 (e). 

Exceptional patterns of hearing impairment are provided for in 38 C.F.R. § 4.86. When the pure tone 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 is evaluated separately. 38 C.F.R. § 4.86 (a). 

Ratings for hearing impairment are derived by the mechanical application of the Rating Schedule to the numeric designations assigned after audiometric evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345 (1992). However, in addition to providing objective test results, a VA audiological examination report must address the functional effects caused by a hearing disability because an extraschedular rating under 38 C.F.R. § 3.321 (b) "does not rely exclusively on objective test results to determine whether a referral for an extraschedular rating is warranted." Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). VA's policy requiring VA audiologists to describe the effect of a hearing disability on occupational functioning and daily activities facilitates extraschedular determinations. Id. 

The Veteran underwent three audiological evaluations during the appellate period. 

At the January 2013 audiological evaluation, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
35
30
40
60
65
LEFT
60
85
70
65
85

Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 100 in the left ear using the Maryland CNC speech discrimination test. The average pure tone thresholds of 1000, 2000, 3000, 4000 Hz, rounded to the nearest whole number, were 49 for the right ear and 77 for the left ear. He was assessed with sensorineural hearing loss in the right ear, and mixed hearing loss in the left ear. The examiner noted the functional effects of the Veteran's hearing loss included difficulty with communication.




At the November 2016 audiological evaluation, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
50
55
60
70
70
LEFT
100
105
100
100
105

Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 52 in the left ear using the Maryland CNC speech discrimination test. The average pure tone thresholds of 1000, 2000, 3000, 4000 Hz, rounded to the nearest whole number, were 64 for the right ear and 103 for the left ear. The examiner did not note or opine on the functional effects of the Veteran's hearing loss.

At the February 2017 audiological evaluation, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
40
45
55
60
75
LEFT
95
100
90
80
105

Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 48 in the left ear using the Maryland CNC speech discrimination test. The average pure tone thresholds of 1000, 2000, 3000, 4000 Hz, rounded to the nearest whole number, were 59 for the right ear and 94 for the left ear. The Veteran was assessed with sensorineural hearing loss in the right ear, and mixed hearing loss in the left ear. The examiner noted a permanent positive threshold shift in both ears. The examiner also noted the functional effects of the Veteran's hearing loss included the need for hearing aids. With regards to the Veteran's left ear, the examiner changed the diagnosis from deafness secondary to chronic nonsuppurative otitis media to chronic left otitis media, status-post multiple tympanomastoid surgeries, with profound mixed hearing loss.  

Given these results, the Veteran's left and right ears demonstrated "exceptional" hearing loss during the appellate period. Therefore, the Veteran's bilateral hearing loss disability will be evaluated using either Table VI or Table VIa, whichever results in the higher numeral. 

With regards to the January 2013 examination, the Veteran's left ear alone demonstrated "exceptional" hearing loss. The results yielded a number designation of "I" for the right ear (between 42 and 49 average pure tone decibel hearing loss, with between 92 and 100 percent speech discrimination) using Table VI. The two numerical designations for the left ear, given its "exceptional" hearing loss,  yielded a designation of "II" in Table VI (between 74 and 81 average pure tone decibel hearing loss, with between 92 and 100 percent speech discrimination) and a designation of "VII" in Table VIa (between 77 and 83 average pure tone decibel hearing loss only). Entering the category designations of each ear into Table VII results in a noncompensable disability evaluation using either Table for the Veteran's left ear. 

With regards to the November 2016 examination, both ears demonstrated "exceptional" hearing loss. The two numerical designations of the right ear, given its "exceptional" hearing loss, yielded a designation of "II" in Table VI (between 58 and 65 average pure tone decibel hearing loss, with between 92 and 100 percent speech discrimination) and a designation of "V" in Table VIa (between 63 and 69 average pure tone decibel hearing loss). The two numerical designations of the left ear, given its "exceptional hearing loss," yielded a designation of "IX" in Table VI (above 98 average pure tone decibel hearing loss, with between 52 and 58 speech discrimination) and a designation of "X" in Table VIa (between 98 and 104 average pure tone decibel hearing loss). Entering the higher numerical category designations of each ear into Table VII results in a 40 percent disability evaluation.

With regards to the February 2017 examination, the Veteran's left ear alone demonstrated "exceptional" hearing loss. The results yielded a number designation of "II" for the right ear (between 58 and 65 average pure tone decibel hearing loss, with between 92 and 100 percent speech discrimination). The two numerical designations for the left ear, given its "exceptional' hearing loss, yielded a designation of "IX" in Table VI (between 90 and 97 average pure tone decibel hearing loss, with between 44 to 50 percent speech discrimination) and a designation of "IX" in Table VIa (between 91 and 97 pure tone decibel hearing loss only). Entering the category designations of each ear into Table VII results in a 10 percent disability evaluation.

The preponderance of the evidence is against finding a compensable rating for the Veteran's hearing loss prior to November 22, 2016; for finding a rating in excess of 40 percent for the period from November 22, 2016, to February 5, 2017; and for finding a rating in excess of 10 percent since February 6, 2017. The results of the Veteran's three audiological examinations are probative and valid for rating purposes and reflect the severity of the Veteran's bilateral hearing loss at the time.

The Veteran is competent to describe the effects of his hearing loss on his daily functioning, such as having difficulty understanding other people with background noise present. However, disability ratings are derived by a mechanical application of the rating schedule. Lendenmann, 3 Vet. App. at 349. Thus, the Board has no discretion in this matter and must predicate its determination on the basis of the results of the audiological examinations of record. 

The mechanical application of the Rating Schedule to the audiometric findings establish a noncompensable rating prior to November 22, 2016; a 40 percent rating from November 22, 2016 to February 5, 2017; and a 10 percent rating since February 6, 2017. The claim for a higher rating during these three stages is denied. 

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ORDER

A compensable rating for bilateral hearing prior to November 22, 2016, is denied.

A rating in excess of 40 percent for bilateral hearing loss from November 22, 2016, to February 5, 2017, is denied.

A rating in excess of 10 percent for bilateral hearing loss since February 6, 2017, is denied.




____________________________________________
Vito A. Clementi
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs