Citation Nr: 1751207	
Decision Date: 11/08/17    Archive Date: 11/17/17

DOCKET NO.  13-11 540	)	DATE
	)
	)

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


THE ISSUE

Entitlement to a compensable rating for bilateral hearing loss disability.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

B.A. Evans, Associate Counsel







INTRODUCTION

The Veteran had active service in the United States Marine Corps (USMC) from November 1969 to November 1971.

This matter comes before the Board of Veterans' Appeals (Board) on appeal of a November 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.  

This case was previously before the Board in February 2017, at which time the issue currently on appeal was remanded for additional development.  The case has now been returned to the Board for further appellate action. 

In his April 2013 substantive appeal, the Veteran requested that he be afforded a hearing before a member of the Board.  The Veteran was scheduled for his requested hearing in June 2016.  That same month, he canceled the hearing through a written statement submitted by his representative and has made no attempts to reschedule the hearing. As such, the Veteran's hearing request is deemed withdrawn.


FINDING OF FACT

Throughout the period on appeal, the Veteran's hearing impairment is no worse than Level III in the right ear or Level II in the left ear.


CONCLUSION OF LAW

The criteria for a compensable rating for bilateral hearing loss disability have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.7, 4.85, Diagnostic Code 6100, 4.86 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran asserts that his bilateral hearing loss disability is worse than contemplated by the currently assigned noncompensable rating.  

At an October 2010 VA audiology evaluation, the Veteran reported difficulty hearing in all situations, which was noted to have a significant impact on his ability to work.  Audiometric testing results at that time were as follows:

Hertz
1000
2000
3000
4000
Average
Right Ear
25
55
50
65
48.75
Left Ear
10
50
70
70
50

Speech recognition ability was measured at 86 percent in the right ear and 84 percent in the left ear.  The examiner diagnosed bilateral sensorineural hearing loss.  Applying those values to the rating criteria results in a numeric designation of Level II in the right ear and Level II in the left ear.  38 C.F.R. § 4.85, Table VI (2017).  Application of the levels of hearing impairment in each ear to Table VII at 38 C.F.R. § 4.85 produces a 0 percent rating.

Of record is an October 2010 audiogram report from the Veteran's private audiologist.  Audiometric testing results at that time were as follows:

Hertz
1000
2000
3000
4000
Average
Right Ear
30
60
65
70
56.25
Left Ear
20
65
80
80
61.25

While the Veteran's private audiologist did conduct a speech discrimination test, there is no indication from the record that the speech discrimination test conducted was the Maryland CNC test.  Further, results of Maryland CNC speech recognition testing given before and after the October 2010 private audiogram remain consistent.  As such, the private audiology speech discrimination scores are of no probative value.  However, the puretone threshold results will be considered in conjunction with the other evidence of record, to specifically include the speech recognition scores from the concurrent October 2010 VA audiology evaluation.  Applying the October 2010 private audiometric testing results with the speech recognition scores from the October 2010 VA audiology evaluation to the rating criteria, results in a numeric designation of Level III in the right ear and Level II in the left ear.  38 C.F.R. § 4.85, Table VI (2017).  Application of the levels of hearing impairment in each ear to Table VII at 38 C.F.R. § 4.85 produces a 0 percent rating.

At a November 2013 VA audiology evaluation, the Veteran reported difficulty listening over the telephone and hearing his wife.  He reported that even though he wore hearing aids, he was not always able to understand when people spoke to him.  Audiometric testing results at that time were as follows:

Hertz
1000
2000
3000
4000
Average
Right Ear
25
50
55
65
48.75
Left Ear
10
55
75
75
53.75

Speech recognition ability was measured at 92 percent in the right ear and 92 percent in the left ear.  The examiner diagnosed bilateral sensorineural hearing loss.  Applying those values to the rating criteria results in a numeric designation of Level II in the right ear and Level II in the left ear.  38 C.F.R. § 4.85, Table VI (2017).  Application of the levels of hearing impairment in each ear to Table VII at 38 C.F.R. § 4.85 produces a 0 percent rating.

At a March 2017 VA audiology evaluation, the Veteran reported that his hearing impairment caused him to have to ask for repetition often.  He experiencing communication difficulties with his wife and he reported that he had to wear hearings aids to help him understand general conversation, especially in the presence of background noise.  Audiometric testing results at that time were as follows:

Hertz
1000
2000
3000
4000
Average
Right Ear
30
55
60
70
53.75
Left Ear
25
60
75
80
60

Speech recognition ability was measured at 88 percent in the right ear and 92 percent in the left ear.  The examiner diagnosed bilateral sensorineural hearing loss.  Applying those values to the rating criteria results in a numeric designation of Level II in the right ear and Level II in the left ear.  38 C.F.R. § 4.85, Table VI (2017).  Application of the levels of hearing impairment in each ear to Table VII at 38 C.F.R. § 4.85 produces a 0 percent rating.

In addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in the final report. Martinak v. Nicholson, 21 Vet. App. 447 (2007).  At the various VA examinations of record, the Veteran was asked to describe the impact his hearing impairment had on his daily life in his own words. He routinely reported that he had difficulty hearing and communicating, especially with his wife and in the presence of background noise. Therefore, the Board finds that the VA audiology evaluation reports of record are in compliance with the requirements set forth in Martinak. 

There are no other audiogram reports of record showing the Veteran to have hearing impairment worse than that reported at the VA examinations and in the October private audiogram.  

The Veteran's bilateral hearing loss disability has not been shown to be worse than Level III in the right ear or Level II in the left ear.  Those results fall within the schedular criteria for a 0 percent rating.  Therefore, the criteria for a compensable rating have not been met.  38 C.F.R. § 4.85, Diagnostic Code 6100 (2017).  

The Board has considered the Veteran's lay statements, in which he generally contends that his hearing is worse than currently rated, and does not doubt that he experienced a degree of decreased hearing. The Board also reviewed the statements in support from the Veteran's wife and stepdaughter, in which they claimed they have to repeat themselves constantly so the Veteran can hear. However, as was indicated above, rating a hearing loss disability involves the mechanical application of rating criteria to the results of specified audiometric studies. According to the schedule, hearing acuity must become very degraded before it reaches the compensable level. Here, the objective medical evidence of record consists of the four qualifying VA audiological examinations conducted within one year of the Veteran's claim of an increased rating, which objectively show that the Veteran's hearing loss does not rise to the level of a compensable rating. See 38 C.F.R. § 4.85. 

Consideration has been given to assigning staged ratings.  However, at no time during the period in question has the disability warranted a higher schedular rating than that assigned.  Hart v. Mansfield, 21 Vet. App. 505 (2007). 


ORDER

Entitlement to a compensable rating for a bilateral hearing loss disability is denied.




____________________________________________
Kristin Haddock
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs