Citation Nr: 1751452	
Decision Date: 11/09/17    Archive Date: 11/17/17

DOCKET NO.  17-07 114	)	DATE
	)
	)

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


THE ISSUE

Entitlement to a compensable initial rating for bilateral hearing loss. 


REPRESENTATION

Veteran represented by:	Veterans of Foreign Wars of the United States


WITNESS AT HEARING ON APPEAL

The Veteran 

ATTORNEY FOR THE BOARD

C. O'Donnell, Associate Counsel



INTRODUCTION

The Veteran served on active duty from May 1950 to May 1954.    

This case comes before the Board of Veterans' Appeals (Board) on appeal from a an April 2013 decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington, which, in pertinent part, granted service connection for left ear hearing loss and assigned a noncompensable rating.  

In December 2015, the Veteran testified before the undersigned at a video-conference Board hearing.  A transcript of the hearing is associated with the claims file.

The Board remanded the case for further development in February 2016.  That development has been completed and the case has since been returned to the Board for appellate review.  

In a February 2016 rating decision, the Appeals Management Center granted entitlement to service connection for bilateral hearing loss and assigned a noncompensable rating, effective March 12, 2008.  

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)


FINDINGS OF FACT

Throughout the entire appeal period, the Veteran has manifested no worse than level I hearing in the right ear, and no worse than level III hearing in the left ear; he has manifested no worse than 100 percent speech discrimination in the right ear, and no worse than 76 percent speech discrimination in the left ear.



CONCLUSION OF LAW

The criteria for a compensable initial evaluation for bilateral hearing loss have not been met. 38 U.S.C.A. § 1155, 5107 (West 2014); 38 C.F.R. § 3.102, 3.159, 4.1-4.14, 4.85, 4.86, Diagnostic Code 6100 (2016).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  Duties to Notify and Assist

Upon receipt of a substantially complete application for benefits, VA must notify the claimant of what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed.  38 U.S.C.A. §§ 5103(a), 5103A (West 2014); 38 C.F.R. § 3.159(b) (2016); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002).  Here, the RO provided the Veteran with an adequate pre-adjudication VCAA notice in regard to his claim by a letter dated in April 2008.    

With respect to VA's duty to assist, the record shows that VA has undertaken all necessary development action. 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159 (2016).  The Veteran's service treatment records and DD Form 214 are on file.  Additionally, there are no outstanding post-service treatment records which the Veteran has specifically identified and authorized VA to obtain.  38 U.S.C.A. § 5103A(c) (West 2014); 38 C.F.R. § 3.159(c)(2), (3) (2016).

The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law.  McLendon v. Nicholson, 20 Vet. App. 79 (2006).  In this case, the Veteran was afforded VA examinations for his bilateral hearing loss in February 2013 and April 2016 respectively.     

When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  The Board finds that the February 2013 and April 2016 opinions, when taken together and with other evidence of record, are adequate to decide the case.  The opinions sufficiently address the central medical issues in this case to allow the Board to make a fully informed determination and are supported by rationale.  See Monzingo v. Shinseki, 26 Vet. App. 97, 105 (2012) (holding that "examination reports are adequate when they sufficiently inform the Board of a medical expert's judgment on a medical question and the essential rationale for that opinion").  The examiners' opinions were predicated on a full reading of all available records, including the Veteran's service treatment records, post-service treatment records, as well as the Veteran's lay statements.  Barr, 21 Vet. App. 303, 312; see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).  Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met.  38 C.F.R. § 3.159(c)(4) (2016).  

The Board concludes that the Veteran was provided the opportunity to meaningfully participate in the adjudication of his claim, and he did, in fact, participate. Washington v. Nicholson, 21 Vet. App. 191 (2007).  For these reasons, the Board concludes that VA has fulfilled the duty to assist the Veteran in this case.  Hence, there is no error or issue that precludes the Board from addressing the merits of this appeal. 

Additionally, as the April 2016 opinion was obtained pursuant to the Board's February 2016 remand and is sufficient to decide this claim, the Board finds substantial compliance with the February 2016 remand instructions.  See Dyment v. West, 13 Vet. App. 141, 146-47   (1999) (remand not required under Stegall v. West, 11 Vet. App. 268   (1998) where there was substantial compliance with Board's remand instructions).

II. Governing Law

The Veteran seeks an increased initial evaluation for his service-connected bilateral hearing loss.  Historically, this appeal stems from the original grant of service connection for left ear hearing loss in April 2013.    

Disability evaluations are determined by evaluating the extent to which a Veteran's service connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.  Separate diagnostic codes identify various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7.  After careful consideration of the evidence, any reasonable doubt remaining will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. 

Although the Veteran's entire history is reviewed when assigning a disability evaluation, 38 C.F.R. § 4.1, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55(1994).  Staged ratings are, however, appropriate when the factual findings show distinct time periods in which a disability exhibits symptoms that warrant different ratings.  Hart v. Mansfield, 21 Vet. App. 505, 509-10(2007). 

Ratings for service-connected hearing loss range from noncompensable (0 percent) to 100 percent.  These ratings are based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination testing together with the average hearing threshold level as measured by pure tone audiometry tests in the frequencies 1,000, 2,000, 3,000 and 4,000 cycles per second.  In evaluating service-connected hearing loss, disability ratings are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are performed.  See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). 

Diagnostic Code 6100 provides a table for rating purposes (Table VI) to determine a Roman numeral designation (I through XI) for hearing impairment.  The hearing impairment is established by a state licensed audiologist including controlled speech discrimination and the pure tone threshold average, which is the sum of the pure tone thresholds at 1000, 2000, 3000, and 4000 Hertz (Hz), divided by four.  See 38 C.F.R. § 4.85.  Table VII is used to determine the percentage rating by combining the Roman numeral designations for hearing impairment of each ear.  The horizontal row represents the ear having the poorer hearing and the vertical column represents the ear having the better hearing.  Id.  

Under 38 C.F.R. § 4.86(a), when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hz) is 55 decibels (dB) or more, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table IV or Table VIa, whichever results in the higher numeral.  Each ear is to be evaluated separately.  See 38 C.F.R. § 4.86(a).  The provisions of 38 C.F.R. § 4.86(b) provide that when the pure tone threshold is 
30 decibels or less at 1000 Hz, 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 evaluated to the next higher Roman numeral.  See 38 C.F.R. 
§ 4.86(b).

In Martinak v. Nicholson, 21 Vet. App. at 455 (2007), the United States Court of Appeals for Veterans Claims (Court) held that, in addition to providing objective test results, a VA audiometric 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."  The Court also noted that VA's policy requiring VA audiologists to describe the effect of a hearing disability on occupational functioning and daily activities facilitates extraschedular determinations by requiring VA audiologists to provide such information.  Id.  

III. Analysis

In September 2017, the Veteran's representative submitted a statement requesting this matter be remanded for an additional examination because the Veteran's previous examination to distinguish that the Veteran's hearing loss had diminished since his last audio examination.  In that regard, the Board notes that the most recent VA examination of record was conducted in April 2016.  There is no indication or any actual worsening of severity discernable in any statement or medical report dated after April 2016.  In the absence of evidence of worsening since that examination, see Snuffer v. Gober, 10 Vet. App. 400, 403 (1997), the Board is satisfied that the medical evidence of record adequately addresses the Veteran's current level of impairment, see generally Weggenmann v. Brown, 5 Vet. App. 281, 284 (1993).  

The Veteran received a VA audiometric examination in February 2013.  At that time, pure tone thresholds, in decibels, were as follows:

Hertz
500
1,000
2,000
3,000
4,000
Right Ear
10
5
15
20
35
Left Ear
15
30
40
60
70

Speech discrimination scores, as determined by the Maryland CNC, were of 10 percent in the right ear, and 100 percent in the left ear.  The average decibel loss in the right ear was 18.75, and 50 in the left ear.  

The Veteran received a private audiometric examination in November 2015.  At that time, pure tone thresholds, in decibels, were as follows:

Hertz
500
1,000
2,000
3,000
4,000
Right Ear
15
15
20
30
45
Left Ear
30
35
45
65
75


Speech discrimination scores, as determined by the Maryland CNC, were of 100 percent in the right ear, and 100 percent in the left ear.  The average decibel loss in the left ear was 55, and 27.5 in the right ear.  

The Veteran received another VA audiometric examination in April 2016.  At that time, pure tone thresholds, in decibels, were as follows:

Hertz
500
1,000
2,000
3,000
4,000
Right Ear
10
5
20
40
55
Left Ear
20
25
45
75
90

Speech discrimination scores, as determined by the Maryland CNC, were of 100 percent in the right ear, and 76 percent in the left ear.  The average decibel loss in the left ear was 30, and 58.75 in the right ear.  The examiner addressed the functional effects of the Veteran's hearing loss including having to have the television volume turned up, difficulty hearing his wife, and difficulty hearing more so form one ear.  See Martinak v. Nicholson, 21 Vet. App. at 455 (2007).

Based upon the results that are most favorable to the Veteran as a result of his February 2013, November 2015 and April 2016 examinations, a Roman numeral I is designated for the right ear from Table VI of 38 C.F.R. § 4.85 and a Roman numeral III is designated for the left ear.  Intersecting the numeric designations to the applicable row and column for the right and left ear, a noncompensable rating is derived from Table VII of 38 C.F.R. § 4.85.  The intersection point for these categories shows that the hearing loss does not exceed the levels for a noncompensable (0 percent) schedular rating; thus, the evidence does not support a finding of a disability rating in excess of what is currently rated.  Notably, 
the claims file does not contain any treatment records that have audiological findings that would merit a compensable evaluation under 38 C.F.R. § 4.85 or 4.86.  All three examinations of record before the Board results yield the same outcome, i.e., findings that do not merit a compensable rating.    

The provisions of 38 C.F.R. § 4.86(a) (exceptional patterns of hearing impairment) are not for application as the results of the audiometric examinations discussed above do not show pure tone thresholds of 55 decibels or greater in all four of the relevant frequencies for the Veteran's ears.  The provisions of 38 C.F.R. § 4.86(b) are also not applicable as both ears are not shown to manifest 30 decibels or less at 1000 Hz and 70 decibels or more at 2000 Hz.

The Veteran's wife submitted a letter that was dated November 2015.  The letter conveyed that the Veteran's hearing had diminished.  The Veteran's wife noted that the sound on the television had to be turned up very high in order for the Veteran to hear it.  The wife also noted that she had to raise her voice in order to have a conversation with the Veteran.  

Furthermore, the Veteran has stated that he should be entitled to a compensable rating, and there is no reason to doubt the credibility of the Veteran with respect to the fact that the Veteran has difficulty hearing.  The objective findings on examination, however, do not allow for the assignment of ratings higher than that which is assigned in this case.  Thus, although the Veteran disagrees with the findings on examinations, the medical evidence of record is more probative than lay contentions as to the extent of the Veteran's hearing loss.  Even after considering the Veteran's reports as to the effects of the disability on his daily life, to include difficulty hearing, the evidence shows that the rating criteria for a higher rating than noncompensable is not met.   

Accordingly, the Veteran's claim for a compensable rating for bilateral hearing loss is denied.  


ORDER

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



______________________________________________
ROBERT C. SCHARNBERGER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs