Citation Nr: 1751813	
Decision Date: 11/13/17    Archive Date: 11/22/17

DOCKET NO.  13-12 488	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas


THE ISSUE

Entitlement to a compensable disability rating for bilateral hearing loss. 


REPRESENTATION

Veteran represented by:	Texas Veterans Commission


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

A. Price, Associate Counsel


INTRODUCTION

The Veteran served on active duty in the U.S. Air Force from October 1964 to October 1968.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. 

The Board remanded the appeal in September 2016 and requested the RO reschedule the Veteran for a videoconference hearing and readjudicate his claims.  A videoconference hearing was conducted in July 2017 before the undersigned Veterans Law Judge.  A transcript of the hearing has been associated with the file. 


FINDINGS OF FACT

1. For the entire appeal period, the Veteran has experienced worsening hearing acuity in both ears. 

2. The Veteran demonstrated, at worst, Level I hearing acuity in his left ear and Level IV hearing acuity in his right 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. §§ 3.321, 4.1-4.14, 4.85, 4.86, Diagnostic Code 6100 (2017).





REASONS AND BASES FOR FINDINGS AND CONCLUSION

I. VA's Duties to Notify and Assist

The Veteran nor his representative has raised any issues with the duty to notify or duty to assist.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument).

II. Increased Rating 

The Veteran contends that his bilateral hearing loss warrants a compensable disability rating.  

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4.  The Rating Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service.  The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. 

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 for that rating.  Otherwise the lower rating will be assigned.  38 C.F.R. § 4.7.  All benefit of the doubt will be resolved in the Veteran's favor.  38 C.F.R. § 4.3.

Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibits symptoms that would warrant different evaluations during the course of the appeal, the assignment of staged ratings is appropriate.  Fenderson v. West, 12 Vet. App. 119 (1999).

The Veteran's service-connected bilateral hearing loss is currently assigned a noncompensable rating under 38 C.F.R. § 4.85, Diagnostic Code 6100. 

Ratings of hearing loss range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of speech discrimination tests combined with the average hearing threshold levels as measured by pure tone audiometry tests in the frequencies 1000, 2000, 3000, and 4000 cycles per second.  To rate the degree of disability for service-connected hearing loss, the Rating Schedule has established eleven auditory acuity levels, designated from level I, for essentially normal acuity, through level XI, for profound deafness.  38 C.F.R. § 4.85(h), Table VI.  In order to establish entitlement to a compensable rating for hearing loss, it must be shown that certain minimum levels of the combination of the percentage of speech discrimination loss and average pure tone decibel loss are met.  The assignment of disability ratings for hearing impairment is derived by a mechanical application of the Rating Schedule to the numeric designations assigned after audiometric evaluations are rendered.  Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992).

The criteria for rating hearing impairment use controlled speech discrimination tests (Maryland CNC) together with the results of pure tone audiometry tests.  These results are then charted on Table VI, Table VIA in exceptional cases as described in 38 C.F.R. § 4.86, and Table VII, as set out in the Rating Schedule.  38 C.F.R. § 4.85.  An exceptional pattern of hearing loss occurs when the pure tone threshold at 1000, 2000, 3000, and 4000 Hertz is 55 decibels or more, or when the pure tone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz.  38 C.F.R. § 4.86.

Throughout the appeal period, the Veteran received various audiological examinations.  



A private ENT performed an audiology exam in February 2012 and measured pure tone thresholds, in decibels, as follows: 




HERTZ



500
1000
2000
3000
4000
RIGHT
15
10
30
60
70
LEFT
15
10
30
55
65

Puretone threshold average for the right ear was 44 and the left ear was 36 Hertz.  Speech audiometry revealed speech recognition ability of 80 percent in the right ear and of 84 percent in the left ear; however, there is no indication that the Maryland CNC was used for testing. 

In June 2012, the Veteran submitted a statement from his wife in support of his hearing loss claim.  She indicated that he had difficulties hearing since they met in 1982; because of this she and others have had to continuously repeat things for him. 

The October 2012 VA examination findings showed pure tone thresholds, in decibels, as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
20
15
35
60
65
LEFT
05
05
35
50
55

Puretone threshold average for the right ear was 44 and the left ear was 36 Hertz.  Speech audiometry revealed speech recognition ability of 92 percent in the right ear and of 92 percent in the left ear.  The examiner diagnosed sensorineural hearing loss in both ears but noted that it did not impact ordinary conditions of daily life, including his ability to work.  



The January 2013 audiological examination revealed pure tone thresholds, in decibels, as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
40
25
50
70
75
LEFT
15
20
40
55
65

Puretone threshold average for the right ear was 56 and the left ear was 39.  Speech audiometry revealed speech recognition ability of 76 percent in the right ear and of 96 percent in the left ear.

Another audiology exam was performed in July 2014 and measured pure tone thresholds, in decibels, as follows: 




HERTZ



500
1000
2000
3000
4000
RIGHT
40
45
50
70
75
LEFT
15
20
40
55
65

Puretone threshold average for the right ear was 56 and the left ear was 39.  The examiner noted there was moderate sloping to profound sensorineural hearing loss in the right ear and moderately-severe sensorineural hearing loss in the left ear.  Word recognition was very poor at a supra speech level for the right ear and excellent at a normal conversational speech level for the left; however, the Maryland CNC was not used to perform testing. 

During the July 2017 hearing, the Veteran reported experienced worsening hearing since his last VA exam in October 2012.  He was given hearing aids in 2012; however, he did not feel they were helpful.  He had trouble hearing when speaking directly with someone or in a group when there is background noise.  He also submitted a private audiology exam from July 2017 as additional evidence. 

The July 2017 private audiology exam noted pure tone thresholds, in decibels, as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
20
45
55
75
75
LEFT
15
25
45
60
60

Puretone threshold average for the right ear was 54 and the left ear was 41.  Speech audiometry revealed speech recognition ability of 80 percent in the right ear and of 92 percent in the left ear.  

The Board finds that for the entire appeal period, the Veteran has no worse than Level IV hearing loss in the right ear, and no worse than Level I hearing loss in the left ear.  The Board has considered the Veteran's competent and credible testimony as to his worsening symptoms.  Unfortunately, based on the mechanical application of the rating criteria, he is not entitled to an initial, compensable rating for his bilateral hearing loss.  In other words, even looking at the audiogram showing the most severe hearing impairment, he does not meet the criteria for the higher, 10 percent rating.  
 
To the extent that the Veteran contends that his hearing loss is more severe than currently evaluated, the Board observes that the Veteran, although competent to report symptoms such as difficulty understanding speech, particularly difficulty hearing speech, reading lips, asking people to repeat themselves, and wearing hearing aids, he is not competent to report that his hearing acuity is of sufficient severity to warrant a 10 percent or greater evaluation under VA's tables for rating hearing loss disabilities because such an opinion requires medical expertise (training in evaluating hearing impairment), which he has not been shown to have.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Charles v. Principi, 16 Vet. App. 370 (2002); Woehlaert v. Nicholson, 21 Vet. App. 456 (2007).

Despite the foregoing, the Board acknowledges the Veteran's reports difficulty hearing speech, including of his wife and others, and the television.  Even after considering such contentions as to the effects of the disability on his daily life, the Board finds that the criteria for a compensable rating are not met.  See Lendenmann, supra (assignment of disability ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered).  

Although the Veteran's bilateral hearing loss disability does not current meet the criteria for a 10 percent rating, this does not preclude him from coming forward to request an increase if his hearing acuity worsens.  


ORDER

A compensable rating for bilateral hearing loss is denied. 



____________________________________________
H.M. WALKER
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs