Citation Nr: 1751692	
Decision Date: 11/13/17    Archive Date: 11/22/17

DOCKET NO.  14-02 659	)	DATE
	)
	)

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


THE ISSUE

Entitlement to a compensable rating for bilateral hearing loss.


REPRESENTATION

Veteran represented by:  California Department of Veterans Affairs


ATTORNEY FOR THE BOARD

Melissa Barbee, Associate Counsel







INTRODUCTION

The Veteran had active duty service in the United States Army from May 1981 to July 1983.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California.

In his January 2014 substantive appeal, the Veteran requested the opportunity to testify at a video conference hearing before a member of the Board.  However, the Veteran, through his representative, cancelled the hearing in a May 2017 correspondence.  The Veteran did not request that it be rescheduled, therefore, the hearing request is considered withdrawn.  38 C.F.R. § 20.704(e) (2017). 


FINDING OF FACT

The Veteran's service-connected bilateral hearing loss is manifested by no more than Level I hearing impairment in the right ear and the left ear. 


CONCLUSION OF LAW

The criteria for a compensable rating for bilateral hearing loss have not been met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100 (2017).







REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Duties to Notify and to Assist 

Pursuant to the Veteran's Claims Assistance Act of 2000 (VCAA), VA has duties to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C. §§ 5100, 5102, 5103, 5103A; 38 C.F.R. § 3.159.

VA has a duty to provide notice of the information and evidence necessary to substantiate a claim.  38 U.S.C. § 5103(a); 38 C.F.R. § 3.159(b).  VA's duty to notify was satisfied by a letter dated January 2009.  

VA also has a duty to provide assistance to substantiate a claim.  38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c).  The duty to assist the Veteran in the development of his claim has been met.  All potentially relevant evidence necessary to adjudicate the claim has been identified and obtained.  The Veteran's VA and private treatment records and lay statements are of record.  Additionally, the Veteran has been afforded medical examinations in connection with his claim in October 2008 and February 2013.  

Neither the Veteran nor his representative has advanced any procedural arguments in relation to VA's duty to notify and assist; accordingly, the Board will proceed with appellate review.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015).

II.  Entitlement to a Compensable Rating for Bilateral Hearing Loss.

Legal Criteria

Disability ratings are based upon VA's Schedule for Rating Disabilities as set forth in 38 C.F.R. Part 4.  The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity in civil occupations.  38 U.S.C. § 1155.  Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability.   
38 C.F.R. § 4.1.  For the application of this schedule, accurate and fully descriptive medical examinations are required, and the disability must be viewed in relation to its history.  Id.  A higher evaluation may be assigned where the disability picture more nearly approximates the criteria for the next higher evaluation.  38 C.F.R. § 4.7.  

Where entitlement to compensation has already been established and an increase in the assigned evaluation is at issue, it is the present level of disability that is of primary concern.  Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  Although the recorded history of a particular disability should be reviewed in order to make an accurate assessment under the applicable criteria, the regulations do not give past medical reports precedence over current findings.  Id.  

In evaluating hearing loss, disability ratings are derived by a mechanical application of the ratings schedule to the numeric designations assigned after audiometric evaluations are rendered.  See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992).  Hearing loss disability evaluations range from noncompensable (0 percent) to 100 percent based on organic impairment of hearing acuity.  Audiological examinations used to measure impairment must be conducted by a state-licensed audiologist and must include both a controlled speech discrimination test (Maryland CNC) and a puretone audiometric test.  38 C.F.R. § 4.85(a).  

The ratings schedule provides a table for ratings purposes (Table VI) to determine a Roman numeral designation (I for essentially normal acuity through XI for profound deafness) for hearing impairment, 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.  See 38 C.F.R. § 4.85, Diagnostic Code 6100.  

Table VII is then used to determine the percentage evaluation by intersecting the Roman numeral designations (from Table VI) 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.

Exceptional patterns of hearing impairment are evaluated under the provisions of 38 C.F.R. § 4.86.  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 will be evaluated separately.  38 C.F.R. § 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 Roman numeral.  Each ear will be evaluated separately.  38 C.F.R. § 4.86(b).  

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant.  38 U.S.C. § 5107; 38 C.F.R. §§  3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  To deny a claim on its merits, the evidence must preponderate against the claim.  Alemany v. Brown, 9 Vet. App. 518 (1996).  

Analysis

Historically, in July 2009 rating decision, service connection for bilateral hearing loss was granted, and a noncompensable rating was assigned under 38 C.F.R. § 4.85, Diagnostic Code 6100.  The Veteran contends that his hearing is worse than his currently assigned noncompensable rating reflects because he has a constant roaring, buzzing, and squealing in his ears, which effects his ability to hear well.  

The Veteran underwent another private audiology examination arranged by VA QTC Services in February 2013.  The audiological evaluation recorded puretone thresholds, in decibels, as follows:    


HERTZ

1000
2000
3000
4000
Average
RIGHT
25
30
40
50
36
LEFT
35
45
60
70
53

Speech discrimination scores on the Maryland CNC word list were 100 percent in the right ear and 100 percent in the left ear.  The average puretone threshold was 36 percent in the right ear and 53 percent in the left ear.     

The February 2013 audiology examination findings, applied to Table VI, yield a numeric designation of Roman numeral I in the right ear on the basis of a 36 decibel puretone threshold average and 100 percent speech discrimination, and a numeric designation of Roman numeral I in the left ear on the basis of a 53 decibel puretone threshold average, and 100 percent speech discrimination.  The numeric designation for the right ear, I, along with the numeric designation for the left ear, I, entered into Table VII, produces a noncompensable evaluation for hearing impairment.  Exceptional patterns of hearing impairment under 38 C.F.R. § 4.86 are not present.

The audiological examinations additionally addressed the functional limitations related to hearing loss.  See Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007).    At the February 2013 examination, the Veteran indicated that he has to ask the speaker to repeat his or her words and to speak louder.  Nonetheless, a compensable disability rating for bilateral hearing loss is not warranted based on the audiological findings of record.   

The Board has considered the lay statements submitted by the Veteran and recognizes his complaints regarding his inability to hear well.  The Veteran is competent to describe his hearing difficulty.  Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  However, the Veteran's description of his service-connected disability must be considered in conjunction with the clinical evidence of record as well as the pertinent rating criteria.  In this regard, the Board emphasizes that disability ratings are derived by a mechanical application of the rating schedule. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992).  Thus, the Board has no discretion in this matter and must predicate its determination on the basis of the results of the audiology results of record. 

Based upon the results from the examinations discussed above, the Board finds that the criteria for a compensable rating for bilateral hearing loss have not been met.   38 C.F.R. §§ 4.85, 4.86.  As the evidence of record preponderates against the claim for a compensable evaluation for bilateral hearing loss, the benefit-of-the-doubt doctrine is inapplicable, and the claim must be denied.  38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 

Additional Considerations

The Board further finds that there is no basis for referral for consideration of an extraschedular rating in this case.  38 C.F.R. § 3.321(b)(1).  The Veteran has not presented any evidence that his hearing loss results in a unique disability that is not addressed by the rating criteria.  The Veteran's hearing loss is evaluated under 38 C.F.R. § 4.85, Diagnostic Code 6100, the criteria of which is found by the Board to specifically contemplate the Veteran's level of disability and symptomatology.  As noted above, the Veteran's hearing loss is manifested by, at worst, Level I in the right ear and Level I in the left ear.  When comparing this disability picture with the symptoms contemplated by the Schedule, the Board finds that the Veteran's symptoms are adequately contemplated by the disability rating for hearing loss.  A rating in excess of the currently assigned rating is provided for certain manifestations of hearing loss, but the medical evidence reflects that those manifestations are not present in this case.

The Board has considered the subjective complaints regarding the Veteran's functional limitations discussed in the audiology examinations; however, these complaints do not provide a basis for referring the case for extraschedular consideration.  See Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007).  The Veteran's reported functional limitations are manifestations of difficulty hearing or understanding speech, which are contemplated by the schedular rating criteria for hearing loss.  See Doucette v. Shulkin, 28 Vet. App. 366, 371-72 (2017) (difficulty in distinguishing sounds in a crowded environment, locating the source of sounds, understanding conversational speech, hearing the television, and using the telephone are each a manifestation of difficulty hearing or understanding speech, which is contemplated by the schedular rating criteria for hearing loss).  The criteria thus contemplate the Veteran's symptoms and remand for referral for extraschedular consideration is not required.

The Board also notes that a claim for entitlement to a total disability rating based on individual unemployability (TDIU) due to the Veteran's service-connected disabilities cannot be inferred, as there is no suggestion in the record or by the Veteran that he is unemployable due to his service-connected disabilities.  See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009).  The Veteran has not contended, and the evidence does not show, that the symptoms of his service-connected bilateral hearing loss prevent him from being gainfully employed.

Finally, the Board notes that neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record.  See Doucette, 28 Vet. App. at 369-70 (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).


ORDER

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





____________________________________________
Lesley A. Rein
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs