Citation Nr: 1751326	
Decision Date: 11/09/17    Archive Date: 11/17/17

DOCKET NO.  15-14 767A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Oakland, California


THE ISSUE

Entitlement to a compensable rating for bilateral hearing loss. 


REPRESENTATION

Veteran represented by:	The American Legion


ATTORNEY FOR THE BOARD

R. I. Sims, Associate Counsel


INTRODUCTION

The Veteran served on active duty from February 1957 to January 11, 1967 and from January 14, 1967 to August 1977.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio that denied a compensable rating for hearing loss in the left ear.  

In July 2011, appeal jurisdiction transferred from the RO in Cleveland, Ohio to the RO in Oakland, California.

During the pendency of the appeal, the Veteran was granted service connection for hearing loss in his right ear.  In a March 2015 rating decision his claim was recharacterized as bilateral hearing loss, and a compensable rating was denied.  The Veteran subsequently perfected an appeal for an increased rating for bilateral hearing loss.  

In a February 2016 rating decision, the RO denied service connection for residuals of diphtheria and for a foot disability.  The Veteran responded in a timely September 2016 Notice of Disagreement (NOD) form, so within one year of notification of that decision, to initiate an appeal.  38 C.F.R. § 20.201 (2016).  The AOJ has not yet issued a statement of the case (SOC) on this issue.  Ordinarily the Veteran's claim should be remanded for issuance of an SOC pursuant to Manlincon v. West, 12 Vet. App. 238 (1999).  However, in reviewing the Veterans Appeals Control and Locator System (VACOLS), it is clear the AOJ recognizes this issue is on appeal.  Thus, a remand of the Veteran's claim for service connection for a psychiatric disorder is not necessary at this time. 

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  38 U.S.C.A. § 7107(a)(2) (West 2014).


FINDINGS OF FACT

1.  The Veteran's bilateral hearing loss is manifested by hearing impairment corresponding to auditory acuity of no more than level IV in the right ear and level V in the left ear.

2.  August 21, 2017 was the first date during the course of the Veteran's appeal that his bilateral hearing loss was shown to meet the criteria for a compensable rating.


CONCLUSION OF LAW

The criteria for a 10 percent rating for bilateral hearing loss were met as of August 21, 2017 but no earlier.  38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.85, 4.86, Diagnostic Code 6100 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  Duties to Notify and Assist

Under applicable criteria, VA has certain notice and assistance obligations to claimants.  See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).  In this case, required notice was provided, and neither the Veteran, nor his representative, has either alleged, or demonstrated, any prejudice with regard to the content or timing of VA's notices or other development.  See Shinseki v. Sanders, 129 U.S. 1696 (2009).  Thus, adjudication of his claim at this time is warranted. 

With respect to the duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c).  The Veteran's service treatment records, VA treatment records, and private treatment records have been obtained, to the extent available.  The Veteran chose not to pursue his opportunity to present testimony at a hearing before the undersigned Veterans Law Judge.

The duty to assist also includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the Veteran.  Green v. Derwinski, 1 Vet. App. 121 (1991).  More specifically, a VA examination must be conducted when the evidence of record does not reflect the current state of the Veteran's disability.  Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a).  To that end, when VA undertakes to provide a VA examination, it must ensure that the examination is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  

The Veteran was afforded two VA examinations in connection with his claim.  In addition to reporting objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in his or her final report.  Martinak v. Nicholson, 21 Vet. App. 447 (2007).  The Veteran, however, bears burden of demonstrating any prejudice caused by a deficiency in the examination.  Martinak, 21 Vet. App. at  455.  In this case, the Veteran has made general assertions that his VA examinations were inadequate or inaccurate, but has not made a specific statement about any problem that occurred during the examination or deficiency in the examination.  

While the August 2009 examination does not address the functional effects of the Veteran's hearing problem, or review the Veteran's medical records, it does report objective test results.  Additionally, the Veteran was afforded a second VA examination in November 2012.  The Board finds that the November 2012 examination report indicates the examiner reviewed the Veteran's claims file and past medical history, recorded his current complaints, conducted appropriate evaluations, and rendered appropriate diagnoses.  Additionally, the Board finds that the November 2012 examiner considered and addressed the functional effects of the Veteran's hearing problems.  The existing medical evidence of record is therefore adequate for the purpose of rendering a decision in the instant appeal.  38 C.F.R. § 4.2 (2016); Barr, 21 Vet. App. 303 (2007).  

The Board finds that there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. § 5103(a), § 5103A, or 38 C.F.R. § 3.159, that the record includes adequate, competent evidence to allow the Board to decide this matter, and that the Veteran will not be prejudiced as a result of the Board's adjudication of his claim.

II.  Increased Ratings

The Veteran filed a claim for an increased disability rating in December 2008, asserting that his hearing acuity had continued to deteriorate over the years and had reached such severity as to merit a compensable rating.  Additionally, the Veteran asserts that he is unable to wear his prescribed hearing aids more than two hours per day due to his service connected otitis externa, resulting in significant amounts of time when he experiences diminished hearing.  The Veteran also has trouble hearing in conversations, reporting more trouble with women's and children's voices, and reports that his wife must accept some of his telephone calls.

Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. 38 U.S.C.S. § 1155; 38 C.F.R. Part 4.  Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illness proportionate to the several grades of the disability. 38 C.F.R. § 4.1.  Separate diagnostic codes identify the various disabilities. 38 C.F.R., Part 4.  Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1.  Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2.  Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7.

Hearing loss is rated under the criteria of 38 C.F.R. § 4.85, Diagnostic Code 6100.  Disability ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are made. Bruce v. West, 11 Vet. App. 405 (1998); Lendenmann v. Principi, 3 Vet. App. 345 (1992).  The regulations set forth eleven auditory acuity levels, designated from Roman numerals I to XI, in escalating order of hearing impairment. 38 C.F.R. § 4.85.  The appropriate auditory acuity level is determined based on a combination of the percentage of speech discrimination and the pure tone threshold average.  Additional considerations apply when exceptional patterns of hearing loss are demonstrated, which are defined as either a) pure tone averages of 55 or greater at 1000, 2000, 3000, and 4000 Hertz, or; b) a puretone threshold of 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz. 38 C.F.R. § 4.86(a).  Once an acuity level is established for each ear, Table VII, Percentage Evaluations for Hearing Impairment, is used to determine the appropriate disability evaluation.  The appropriate rating is determined based on a combination of the levels of hearing impairment established for each ear.

In August 2009, the Veteran was afforded a VA audiological examination.  On the authorized audiological evaluation, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
20
20
50
55
60
LEFT
20
40
60
55
60

Speech audiometry revealed speech recognition ability of 92 percent in the right ear and of 88 percent in the left ear.

Application of these findings to the regulations indicates an average decibel loss of 46 dB in the right ear and 54 dB in the left ear.  This equates to auditory acuity of level I in the right ear and level II in the left ear, resulting is a zero percent (noncompensable) rating when applied to the rating table.
 
In November 2012, the Veteran was afforded a second VA audiological examination.  The Veteran reported difficulty understanding speech, a history of fungal ear infections, and an inability to consistently wear his hearing aids because of the fungal ear infections.  

On the authorized audiological evaluation pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
20
30
55
60
60
LEFT
15
50
65
60
65

Speech audiometry revealed speech recognition ability of 94 percent in the right ear and of 94 percent in the left ear.

Application of these findings to the regulations indicates an average decibel loss of 51 dB in the right ear and 60 dB in the left ear.  This equates to auditory acuity of level I in the right ear and level II in the left ear, resulting is a zero percent (noncompensable) rating when applied to the rating table.

An August 2017 VA audiological evaluation appears in the record.  The results of the audiologic evaluation are in graphical form, but are clear and the Board may review them.  In this regard, the Board observes that in Kelly v. Brown, 7 Vet. App. 471 (1995), the Court determined that the Court could not interpret the results of an audiogram because interpretation required a factual finding, which is not the role of the Court in the first instance.  However, the Court implied that the Board, as the finder of fact, is empowered to make factual findings in the first instance.  

In this role, the Board has reviewed the graphical findings of the audiological report and determined that the results are as follows, with pure tone thresholds in decibels: 




HERTZ



500
1000
2000
3000
4000
RIGHT
25
50
50
70
70
LEFT
25
55
70
70
75

Speech audiometry revealed speech recognition ability of 80 percent in the right ear and of 76 percent in the left ear.

Application of these findings to the regulations indicates an average hearing threshold of 60 dB in the right ear and 68 dB in the left ear.  This equates to auditory acuity of level IV in the right ear and level IV in the left ear, resulting is a 10 percent compensable rating when applied to the rating table.  

The Board has also considered the provisions of 38 C.F.R. § 4.86 governing exceptional patterns of hearing impairment.  The Veteran's August 2017 audiological examination demonstrates an exceptional pattern of hearing loss in the left ear as defined in 38 C.F.R. § 4.86.  Pursuant to Table IVA, the findings translate to auditory acuity of level V in the left ear, resulting in a 10 percent compensable rating when applied to the rating table.  Application of 38 C.F.R. § 4.86 does not result in a higher compensable rating.  Of note, exceptional patterns of hearing impairment were not shown at either of the earlier VA examinations during the course of the appeal.

The Board is mindful that an audiologist must provide a description of the functional effects caused by a hearing loss disability.  The Board finds the VA examiner's observation of the Veteran's comments during the November 2012 examination is sufficient to comply with the applicable VA policies.  Additionally, the Board has considered various lay statements from the Veteran attesting to the impact of his hearing loss.  The Veteran's complaints of symptoms are found to be credible and are afforded great weight.  See Layno v. Brown, 6 Vet. App. 465 (1994); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007).  However, 38 C.F.R. § 4.85 and 4.86 require that specific auditory thresholds and/or speech recognition scores be shown before impaired hearing may be compensable at any rating.

Accordingly, based on the Veteran's August 2017 VA examination, a 10 percent rating is granted effective August 21, 2017, but no earlier, for the Veteran's bilateral hearing loss disability.





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ORDER

A 10 percent rating for bilateral hearing loss is granted effective August 21, 2017, but no earlier, subject to the laws and regulations governing the award of monetary benefits. 



____________________________________________
MATTHEW W. BLACKWELDER
 Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs