Citation Nr: 1751467	
Decision Date: 11/09/17    Archive Date: 11/17/17

DOCKET NO.  17-27 273	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico


THE ISSUE

Entitlement to an initial compensable disability rating for left ear hearing loss.


REPRESENTATION

Veteran represented by:	Kathy A. Lieberman, Attorney at Law


ATTORNEY FOR THE BOARD

Jacquelynn M. Jordan, Associate Counsel


INTRODUCTION

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).
The Veteran served in the U.S. Army from May 1964 to May 1966, including service in the Republic of Vietnam.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2017 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico.  In that decision, the RO granted service connection for hearing loss, left ear, with an evaluation of 0 percent, effective April 27 2009.  In June 2016, the Board granted service connection for hearing loss, left ear. 


FINDINGS OF FACT

The clinical evidence shows the Veteran's left ear hearing loss was manifested by no more than Level I hearing impairment in the left ear.


CONCLUSION OF LAW

The criteria for a compensable disability rating for left ear hearing loss have not been met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2014); 38 C.F.R. 
§§ 3.102, 3.321, 4.7, 4.85, Diagnostic Code 6100 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

VA has satisfied its duties under the Veteran's Claims Assistance Act of 2000 (VCAA) to notify and assist, and the Veteran's representative has not raised any procedural arguments regarding the notice or assistance provided in this case.  Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).



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Increased Rating

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule).  38 C.F.R. Part 4.  The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1.  In considering the severity of a disability, it is essential to trace the medical history of the Veteran.  38 C.F.R. §§ 4.1, 4.2, 4.41.

In a claim for a greater original rating after an initial award of service connection, all of the evidence submitted in support of the Veteran's claim is to be considered. In initial rating cases, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "stage" ratings.  Fenderson v. West, 12 Vet. App. 119 (1999); 38 C.F.R. § 4.2. 

Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.

In accordance with 38 C.F.R. §§ 4.1, 4.2 (2014) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed the service medical records and all other evidence of record pertaining to the history of the Veteran's service-connected disability.  The Board has found nothing in the historical record that would lead to the conclusion that the current evidence of record is not adequate for rating purposes.  The Board is of the opinion that this case presents no evidentiary considerations, except as noted below, that would warrant an exposition of the remote clinical history and findings pertaining to the disability at issue.

Pyramiding, that is the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when evaluating a Veteran's service-connected disability.  38 C.F.R. § 4.14 (2013); see Esteban v. Brown, 6 Vet. App. 259, 261- 62 (1994).

Hearing loss is evaluated under 38 C.F.R. §§ 4.85, 4.86 (2014), Diagnostic Code 6100, Tables VI, VIA, VII of VA's rating schedule.  The Rating Schedule provides a table for rating purposes (Table VI) to determine a Roman numeral designation (I through XI) for hearing impairment, 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 pure tone threshold average which is the sum of the pure tone thresholds at 1000, 2000, 3000 and 4000 Hertz, divided by four.  38 C.F.R. § 4.85 (2014).  Table VII is used to determine the percentage evaluation 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. 

The Court has held that the assignment of disability ratings for hearing impairment are to be derived by the mechanical application of the Rating Schedule to the numeric designations assigned after audiometry evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345 (1992).  The Veteran's service-connected hearing loss is currently assigned at a noncompensable disability evaluation, pursuant to 38 C.F.R. § 4.85 (2014), Diagnostic Code 6100.  The Veteran contends that his hearing loss is more severe than the currently assigned noncompensable rating.  

In this case, the relevant, clinical evidence consists of VA audiological examinations performed in April 2017, October 2012 and August 2009.

On the authorized audiological evaluation in April 2017, pure tone thresholds, in decibels, were as follows:



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HERTZ



500
1000
2000
3000
4000
RIGHT
15
10
10
20
20
LEFT
30
30
25
45
50

The average puretone threshold decibel loss was 15 percent in the right ear and 37.5 in the left ear.  Speech audiometry (Maryland CNC) revealed speech recognition ability of 100 percent in the right ear and of 100 percent in the left ear.  The results in this evaluation reveal that the Veteran's hearing loss was manifested by no more than level I hearing acuity in the right ear and level I hearing acuity in the left ear.  Such designations equate to a noncompensable evaluation.  The examiner also noted that the Veteran described the current symptoms as having occupation and daily activity as difficulty understanding conversations, and needs to frequently ask for repetition.

On the authorized audiological evaluation in October 2012, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
10
10
5
20
20
LEFT
30
25
30
35
40

The average puretone threshold decibel loss was 13.75 percent in the right ear and of 32.5 in the left ear.  Speech audiometry (Maryland CNC) revealed speech recognition ability of 100 percent in the right ear and of 88 percent in the left ear.  The results in this evaluation reveal that the Veteran's hearing loss was manifested by no more than level I hearing acuity in the right ear and level I hearing acuity in the left ear.  Such designations equate to a noncompensable evaluation.  The examiner noted, the Veteran described his current symptoms as having difficulty understanding conversations and frequently asking questions.  There was no occupational functional effects reported.

On the authorized audiological evaluation in August 2009, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
10
5
5
15
20
LEFT
30
30
35
40
45

The average puretone threshold decibel loss was 11.25 percent in the right ear and of 37.5 in the left ear.  Speech audiometry (Maryland CNC) revealed speech recognition ability of 100 percent in the right ear and of 92 percent in the left ear.  The results in this evaluation reveal that the Veteran's hearing loss was manifested by no more than level I hearing acuity in the right ear and level I hearing acuity in the left ear.  Such designations equate to a noncompensable evaluation.  The examiner noted that the Veteran's left ear hearing loss had significant occupational effects that included: difficulty following instructions; hearing difficulty and consequently, increased tardiness.  Additionally, the examiner reported, mildy reduced speech recognition ability. 

Applying the findings of the April 2017, October 2012 and August 2009 VA examinations to the rating criteria for hearing impairment, the Board finds that the criteria for an initial compensable evaluation for left ear hearing loss have not been met.  As previously noted, the Veteran's left ear manifested an average pure tone threshold of 37.5 dB, with a 100 percent speech discrimination in the April 2017 VA evaluation.  In the October 2012 VA audiological evaluation, the Veteran's left ear manifested an average pure tone threshold of 32.5 dB, with 88 percent speech discrimination.  In the August 2009 audiological examination, the Veteran's left ear manifested an average pure tone threshold of 37.5 dB, with 92 percent speech discrimination.  Reference to 38 C.F.R. § 4.85, Table VI, shows his left ear hearing loss to be no more than a Level I in the two audiological examinations.  Such designations equate to a noncompensable evaluation for the entire appeal period.  See 38 C.F.R. § 4.85 (f) (2013).  As such, the probative evidence fails to demonstrate a more severe hearing loss disability than is currently addressed by the Veteran's noncompensable disability rating.  Therefore, the claim for entitlement to an initial compensable rating must be denied.

The Board has considered the Veteran's statements regarding the severity of his left ear hearing loss. The Veteran is competent to attest to the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation.  38 U.S.C.A. § 1153 (a); 38 C.F.R. § 3.303 (a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006).  Ultimately, however, the opinions and observations of the Veteran do not meet the burden for a higher rating imposed by the rating criteria under 38 C.F.R. §§ 4.85 and 4.86 with respect to determining the severity of his service-connected left ear hearing loss.

The evidence does not show that symptomatology associated with the Veteran's left ear hearing loss more nearly approximates the schedular criteria associated with a higher rating at any time relevant to the appeal period.  Accordingly, the Board finds entitlement to a compensable disability rating for left ear hearing loss is not warranted.

ORDER

An initial compensable disability rating for left ear hearing loss is denied.



____________________________________________
Cynthia M. Bruce
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs