Citation Nr: 1751157 Decision Date: 11/08/17 Archive Date: 11/17/17 DOCKET NO. 09-31 849 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to an initial compensable rating for left ear hearing loss. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L. B. Yantz, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from March 1986 to August 1998 and from January 1999 to June 2007. This matter is before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In February 2013, in November 2015, and in January 2017, this matter was remanded by other Veterans Law Judges for additional development. The case has now been assigned to the undersigned Veterans Law Judge. FINDING OF FACT For the entire period of claim, the Veteran's service-connected left ear hearing loss disability is not shown to have been manifested by worse than Level I hearing acuity in that ear. CONCLUSION OF LAW An initial compensable rating for left ear hearing loss is not warranted. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.85, Code 6100, 4.86 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Notice and Assistance Neither the Veteran nor his representative has 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 [V]eteran 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). Legal Criteria In general, disability evaluations are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity caused by a given disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability more closely approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Separate "staged" ratings may be assigned for separate periods of time based on the facts found. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999). Hearing loss is evaluated under Code 6100, which provides that numeric designations are assigned based upon a mechanical use of tables found in 38 C.F.R. § 4.85, based on puretone thresholds and speech discrimination; there is no room for subjective interpretation. Under Table VI, a Roman numeral designation (I through XI) for hearing impairment is found based on a combination of the percent of speech discrimination scores and the puretone threshold average. 38 C.F.R. § 4.85(b). Table VIA will be used, which assigns a Roman numeral designation solely on the puretone threshold average, when the examiner certifies that use of the speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc. 38 C.F.R. § 4.85(c). Table VIA may also be used when there is an exceptional pattern of hearing impairment. Such a pattern occurs when the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more, or when the puretone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz. 38 C.F.R. § 4.86. The Table which yields the better result for the Veteran is to be selected. The puretone threshold average is the sum of the puretone thresholds at 1000, 2000, 3000, and 4000 Hertz, divided by four. 38 C.F.R. § 4.85(d). The Roman numeral designations determined using Table VI or Table VIA are combined using Table VII to find the percentage evaluation to be assigned for the hearing impairment. If 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 for hearing impairment of Level I. 38 C.F.R. § 4.85(f). Factual Background and Analysis The Board notes that it has reviewed all of the evidence in the record, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim being decided. At a VA audiology examination in November 2007, audiometric testing revealed the following puretone thresholds for the Veteran's left ear: 10 decibels at 1000 Hertz, 25 decibels at 2000 Hertz, 35 decibels at 3000 Hertz, and 50 decibels at 4000 Hertz, for an average puretone threshold of 30 decibels. [These results did not present an exceptional pattern of hearing impairment to warrant consideration under 38 C.F.R. § 4.86.] On the Maryland CNC test, his speech discrimination score for the left ear was 96 percent. Applying these results to Table VI in 38 C.F.R. § 4.85 yields a finding of Level I hearing loss in the left ear. During a VA audiology consultation in January 2013, audiometric testing revealed the following puretone thresholds for the Veteran's left ear: 15 decibels at 1000 Hertz, 20 decibels at 2000 Hertz, 40 decibels at 3000 Hertz, and 60 decibels at 4000 Hertz, for an average puretone threshold of 34 decibels. [These results did not present an exceptional pattern of hearing impairment to warrant consideration under 38 C.F.R. § 4.86.] Speech discrimination testing was completed using the CID W22 test; therefore, it is not compliant with VA requirements for speech discrimination testing under 38 C.F.R. § 4.85. As noted, there is no exceptional pattern of hearing impairment shown. Additionally, there is no indication from the audiometry or associated consultation report that use of speech discrimination testing using the Maryland CNC word list was not appropriate because of language difficulties, inconsistent speech discrimination scores, or for any other reason. Therefore, since evaluation of left ear hearing loss must be done under Table VI with consideration of speech discrimination scores, the Board is unable to use the January 2013 audiometry results to evaluate the severity of the Veteran's hearing impairment. 38 C.F.R. §§ 4.85, 4.86. At a VA audiology examination in May 2013, audiometric testing revealed the following puretone thresholds for the Veteran's left ear: 20 decibels at 1000 Hertz, 25 decibels at 2000 Hertz, 40 decibels at 3000 Hertz, and 60 decibels at 4000 Hertz, for an average puretone threshold of 36 decibels. [These results did not present an exceptional pattern of hearing impairment to warrant consideration under 38 C.F.R. § 4.86.] On the Maryland CNC test, his speech discrimination score for the left ear was 96 percent. Applying these results to Table VI in 38 C.F.R. § 4.85 yields a finding of Level I hearing loss in the left ear. In terms of functional impairment from left ear hearing loss, the Veteran reported at the May 2013 VA examination that he was always asking people to repeat what they had said. The record reflects that the Veteran underwent a private audiology examination in February 2017; however, the results of the audiometric testing at that examination were recorded in graphical format only. Nevertheless, the Board may interpret graphical representations of audiometric data and convert it to numerical data in its role as a fact finder as long as the graphical representations are clear (which they are, in this case). See Kelly v. Brown, 7 Vet. App. 471 (1995); Hall v. Nicholson, 21 Vet. App. 80 (2006) (unpublished) (stating that the U.S. Court of Veterans Claims (Court) held in Kelly that the Court could not interpret graphical data from a hearing evaluation and convert it to numerical data because this involved fact finding, but there was no indication in the Court's decision that the Board is precluded from doing so as a fact finder). After reviewing the graphical representation of the February 2017 private audiometric testing, the Board finds that such testing revealed the following puretone thresholds for the Veteran's left ear: 20 decibels at 1000 Hertz, 30 decibels at 2000 Hertz, 45 decibels at 3000 Hertz, and 65 decibels at 4000 Hertz, for an average puretone threshold of 40 decibels. [These results did not present an exceptional pattern of hearing impairment to warrant consideration under 38 C.F.R. § 4.86.] On the word recognition test (type unspecified), his speech discrimination score for the left ear was 100 percent. Applying these results to Table VI in 38 C.F.R. § 4.85 [and presuming that the speech discrimination testing was compliant with VA requirements under 38 C.F.R. § 4.85] yields a finding of Level I hearing loss in the left ear. In terms of functional impairment from left ear hearing loss, the Veteran reported at the February 2017 private examination that he had difficulty understanding speech, especially in the presence of background noise. At a VA audiology examination in March 2017, audiometric testing revealed the following puretone thresholds for the Veteran's left ear: 30 decibels at 1000 Hertz, 45 decibels at 2000 Hertz, 45 decibels at 3000 Hertz, and 65 decibels at 4000 Hertz, for an average puretone threshold of 46 decibels. [These results did not present an exceptional pattern of hearing impairment to warrant consideration under 38 C.F.R. § 4.86.] On the Maryland CNC test, his speech discrimination score for the left ear was 96 percent. Applying these results to Table VI in 38 C.F.R. § 4.85 yields a finding of Level I hearing loss in the left ear. In terms of functional impairment from left ear hearing loss, the Veteran reported at the March 2017 VA examination that he had difficulty hearing others and required repetition, especially if unable to see the speaker and when in noise. For the entire period of claim, as shown by the evidence outlined above, the Veteran's service-connected left ear hearing loss disability is not shown to have been manifested by worse than Level I hearing acuity in that ear. Where hearing loss is at Level I in the service-connected ear and the other ear is not service-connected (and therefore also designated Level I), a 0 percent rating is assigned under Table VII in 38 C.F.R. § 4.85. The Board notes the aforementioned functional impacts of the Veteran's left ear hearing loss disability on his daily life, as well as his representative's argument in an October 2017 brief which alleged that a hearing test such as the one conducted at the March 2017 VA examination "does not adequately portray the severity of his condition due to its having been conducted in the sterile quiet of an audiology booth and does not reflect the severity of his condition in the aspect of normal, daily life." However, as noted above, the rating for hearing impairment is derived from a mechanical formula based on levels of puretone threshold average and speech discrimination (which are measured by the type of audiometric testing mandated under 38 C.F.R. § 4.85), and such formula has been accepted to account for accompanying functional impairment. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (holding that "the rating criteria for hearing loss contemplate the functional effects of difficulty hearing and understanding speech"). Accordingly, the Board finds that a compensable rating for left ear hearing loss is not warranted at any time during the evaluation period. See 38 C.F.R. § 4.85, Code 6100; see also Fenderson, 12 Vet. App. at 119, 126-27. ORDER An initial compensable rating for left ear hearing loss is denied. ____________________________________________ M. SORISIO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs