Citation Nr: 1751405	
Decision Date: 11/09/17    Archive Date: 11/17/17

DOCKET NO.  12-12 071	)	DATE
	)
	)

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


THE ISSUE

Entitlement to a compensable initial disability rating for bilateral hearing loss prior to December 23, 2015 and in excess of 10 percent thereafter.


ATTORNEY FOR THE BOARD

M. Shouman, Associate Counsel


INTRODUCTION

The Veteran honorably served on active duty in the United States Navy from July 1958 to June 1962 and in the U.S. Coast Guard from January 1965 to September 1969. 

This matter is before the Board of Veterans' Appeals (Board) on appeal from a December 2014 rating decision (mailed in May 2015) of a U.S. Department of Veterans Affairs (VA) Regional Office (RO).  This rating decision implemented the Board's November 2014 decision, which granted service connection for bilateral hearing loss, and assigned a noncompensable evaluation.  The appellant timely appealed the downstream elements of this decision with a notice of disagreement received by VA in July 2015.  After the RO issued a statement of the case in February 2016, the appeal was perfected with the appellant timely filing a substantive appeal in the same month.

In a February 2016 rating decision, the RO increased the Veteran's bilateral hearing loss disability rating to 10 percent effective December 23, 2015.

In his February 2016 substantive appeal, the appellant did not indicate whether he would like an optional Board hearing.  However, in a July 2017 letter, the appellant implied that he was expecting a hearing to be scheduled.  As such, the Board sent a letter in September 2017 seeking clarification from the appellant as to whether he wished to have a Board hearing scheduled.  The appellant did not timely respond.  Therefore, the Board finds that there is no pending hearing request.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  38 U.S.C.S. § 7107(a)(2) (LexisNexis 2016).


FINDINGS OF FACT

1.  The competent and probative evidence shows that prior to December 23, 2015, the Veteran had hearing impairments no higher than Roman numeral designation II in both ears.

2.  The competent and probative evidence shows that from December 23, 2015 and prior to February 17, 2017, the Veteran has had hearing impairment no higher than Roman numeral designation V in the right ear and no higher than Roman numeral designation IV in the left ear.

3.  The competent and probative evidence shows that from February 17, 2017, the Veteran has had hearing impairment no higher than Roman numeral designation IV in both ears.


CONCLUSIONS OF LAW

1.  The criteria for a compensable schedular rating for bilateral hearing loss prior to December 23, 2015 have not been met.  38 U.S.C.S. § 1155; 38 C.F.R. §§ 3.321, 4.85, 4.86.

2.  The criteria for a schedular rating in excess of 10 percent for bilateral hearing loss from December 23, 2015 have not been met.  38 U.S.C.S. § 1155; 38 C.F.R. §§ 3.321, 4.85, 4.86.


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran has contended that he is entitled to a compensable initial disability rating for bilateral hearing loss prior to December 23, 2015 and an initial disability rating in excess of 10 percent from December 23, 2015.  After reviewing the pertinent medical and lay evidence of record, the Board finds that increased initial disability ratings are not warranted.  The reasons and bases for this decision are explained below.

I.  Notice and Assistance

VA has a duty to provide veterans with notice and assistance in substantiating a claim.  See 38 U.S.C.S. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).

The Board has considered the appealed issue and decided on the matters after reviewing the pertinent evidence.  The appellant has not raised any issues with respect to VA's duties and no other issues been reasonably raised by the record with respect to VA's duties.  See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record).

Given the above, the Board will proceed to the merits this appeal's merits.

II.  Rating Analysis

A.  Legal Principles

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities.  38 C.F.R. pt. 4.  The percentage ratings are based on the average earning capacity impairment as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings.  38 U.S.C.S. § 1155; 38 C.F.R. § 4.1.

If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates 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 any issue material to the determination of a matter, the Secretary of VA shall give the benefit of the doubt to the claimant.  38 U.S.C.S. § 5107(b); 38 C.F.R. § 4.3.

In determining the propriety of the initial disability rating assigned after a grant of service connection, the evidence since the effective date of the award must be evaluated and staged ratings must be considered.  Staged ratings are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct periods during the course of the appeal.  Fenderson v. West, 12 Vet. App. 119, 126-27 (1999).

The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition.  Esteban v. Brown, 6 Vet. App. 259, 262 (1994); 38 C.F.R. § 4.14.

As noted above, the Veteran is competent to report symptoms observable by his senses.  See Jandreau, 492 F.3d at 1377 (Fed. Cir. 2007).  The Board finds the Veteran credible as his statements are detailed and consistent.

B.  Rating Criteria

The assignment of disability ratings for hearing impairment are to be derived by the mechanical application of the VA Schedule for Rating Disabilities to the numeric designations assigned after audiometry evaluations are rendered.  Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992).

The VA Schedule for Rating Disabilities' Table VI, "Numeric Designation of Hearing Impairment Based on Puretone Threshold Average and Speech Discrimination," provides a numeric table to determine the level of hearing impairment for each ear, established by a state-licensed audiologist including a controlled speech discrimination test (Maryland CNC), and based upon a combination of the percent of speech discrimination and the puretone threshold average which is the sum of the puretone thresholds at 1000, 2000, 3000 and 4000 Hertz, divided by four.  38 C.F.R. § 4.85.



Table VII, "Percentage Evaluation for Hearing Impairment (Diagnostic Code 6100)," is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment of each ear.  Id.



Table VIa, "Numeric Designation of Hearing Impairment Based Only on Puretone Threshold Average," will be used when the examiner certifies that the use of speech discrimination test is not appropriate because of, for example, language difficulties, inconsistent speech discrimination scores, or when indicated under the provisions of 38 C.F.R. § 4.86.  Id. § 4.85(c).



When the puretone 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 shall be evaluated separately.  Id. § 4.86(a).

When the puretone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz, 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.  That numeral will then be elevated to the next higher.  Id. § 4.86(b).

C.  Analysis

During the period on appeal, the Veteran underwent VA audiological examinations in February 2011, on December 23, 2015, and on February 17, 2017.

At the February 2011 VA examination, puretone thresholds were as follows:


Frequency (Hertz)

1000
2000
3000
4000
Right ear
30
40
50
55
Left ear
30
50
60
75

02/10/2011, VBMS entry, VA Examination, at 1.  The puretone averages based on the four frequencies were 43.75 and 53.75 decibels in the right and left ears, respectively.  The speech recognition scores were 84 and 88 percent in the right and left ears, respectively.  Id.  These puretone threshold average and speech discrimination figures lead to a Roman numeral designation of II in both ears.  38 C.F.R. § 4.85(h) tbl.VI.  Combining those numeric designations in Table VII, the Board determines the percentage evaluation for hearing impairment at the July 2011 VA examination to be zero percent.

At the December 23, 2015 VA examination, puretone thresholds were as follows:


Frequency (Hertz)

1000
2000
3000
4000
Right ear
40
55
60
70
Left ear
40
50
60
60

12/23/2015, VBMS entry, C & P Examination, at 1-2.  The puretone averages based on the four frequencies were 56 and 53 decibels in the right and left ears, respectively.  The speech recognition scores were 72 and 76 percent in the right and left ears, respectively.  Id. at 2.  These puretone threshold average and speech discrimination figures lead to Roman numeral designations of V and IV in the right and left ears, respectively.  38 C.F.R. § 4.85(h) tbl.VI.  Combining those numeric designations in Table VII, the Board determines the percentage evaluation for hearing impairment at the December 23, 2015 VA examination to be 10 percent.

At the February 17, 2017 VA examination, puretone thresholds were as follows:


Frequency (Hertz)

1000
2000
3000
4000
Right ear
50
55
55
55
Left ear
45
55
60
60

02/17/2017, VBMS entry, C & P Examination (DBQ AUDIO Hearing Loss and Tinnitus), at 1-2.  The puretone averages based on the four frequencies were 54 and 55 decibels in the right and left ears, respectively.  The speech recognition scores were 80 and 76 percent in the right and left ears, respectively.  Id. at 2.  These puretone threshold average and speech discrimination figures lead to a Roman numeral designation of IV in both ears.  38 C.F.R. § 4.85(h) tbl.VI.  Combining those numeric designations in Table VII, the Board determines the percentage evaluation for hearing impairment at the February 17, 2017 VA examination to be 10 percent.

Based on the percentage evaluations noted above, the Board finds that Veteran's disability does not approximate the criteria for a compensable disability rating in prior to December 23, 2015 or a disability rating in excess of 10 percent from December 23, 2015.  Lendenmann, 3 Vet. App. at 349; 38 C.F.R. § 4.85.  The rating criteria are intended to compensate for the impairment resulting from the hearing loss disability.  38 C.F.R. §§ 4.1, 4.85.  The Board acknowledges the Veteran's and his spouse's statements noting his difficulty hearing and understanding speech, hearing the television, and hearing in the presence of background noise.  E.g., 04/03/2017, VBMS entry, Notice of Disagreement, at 2; 04/03/2017, VBMS entry, Court Documents - General, at 1; 08/25/2010, VBMS entry, VA 21-4138 (Statement In Support of Claim), at 1.  Nevertheless, those symptoms are contemplated in 38 C.F.R. § 4.85.


                                                                       (CONTINUED ON NEXT PAGE)

ORDER

A compensable disability rating for bilateral hearing loss prior to December 23, 2015 is denied.

An initial disability rating in excess of 10 percent for bilateral hearing loss from December 23, 2015 is denied.




____________________________________________
ERIC S. LEBOFF
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs