Citation Nr: 1752276	
Decision Date: 11/15/17    Archive Date: 11/22/17

DOCKET NO.  13-24 919	)	DATE
	)
	)

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


THE ISSUE

Entitlement to a compensable rating for bilateral hearing loss disability.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

N. Staskowski, Associate Counsel


INTRODUCTION

The appellant is a Veteran who served on active duty from December 1968 to December 1970.  This matter is before the Board of Veterans' Appeals (Board) on appeal from an August 2011 rating decision by the Houston, Texas, Department of Veterans Affairs (VA) Regional Office (RO).  In May 2015 a videoconference hearing was held before a Veterans Law Judge (VLJ) who has since retired; a transcript is in the record.  September 2017 correspondence informed the Veteran that the VLJ who conducted that hearing had retired, and offered an opportunity for a new hearing (before a VLJ who would decide the matter).  The Veteran has not responded, and it is assumed that he does not desire another hearing.

The Veteran appears to have raised a claim of secondary service connection for memory loss.  See May 2015 Hearing Transcript pg. 10.  Such issue has not been adjudicated by the Agency of Original Jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for clarification and appropriate action.  38 C.F.R. § 19.9(b) (2017).


FINDING OF FACT

At no time during the pendency of the claim is the Veteran's hearing acuity shown to have been worse than level III in either ear.


CONCLUSION OF LAW

A compensable rating for bilateral hearing loss is not warranted.  38 U.S.C.A. 
§§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.85, 4.86 Diagnostic Code (Code) 6100 (2017).




REASONS AND BASES FOR FINDING AND CONCLUSION

Veterans Claims Assistance Act of 2000 (VCAA)

VA's duty to notify was satisfied by a letter in May 2011.  See 38 U.S.C.A. §§ 5102, 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2015); See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).

In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires a Veterans Law Judge who conducts a hearing to fulfill two duties:  (1) to fully explain the issues and (2) to suggest the submission of evidence that may have been overlooked.  At the May 2015 videoconference hearing, the VLJ identified the issue and notified the Veteran of what is necessary to substantiate this claim.  A deficiency in the conduct of the hearing is not alleged.  The Board finds that there was substantial compliance with 38 C.F.R. § 3.103(c)(2), in accordance with Bryant.  

All pertinent private and VA treatment records identified by the Veteran are associated with the record.  He was afforded an audiological examination on behalf of VA in April 2011 and a VA examination in October 2015.  A duty to assist omission is not alleged.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) ("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 duty to assist argument).

Legal Criteria, Factual Background, and Analysis

Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule).  The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.  

Ratings of hearing loss disability are derived from Table VII of 38 C.F.R. § 4.85 by a mechanical application of the rating schedule to numeric designations assigned after audiometric evaluations are performed.  See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992).  The numeric designations correspond to eleven auditory acuity levels, indicated by Roman numerals, where Level I denotes essentially normal acuity and Level XI denote profound deafness.  The assignment of the appropriate numeric level is based on the results of a controlled speech discrimination test (Maryland CNC test) in combination with the claimant's average pure thresholds.  The average threshold is obtained from puretone audiometry in the frequencies of 1000, 2000, 3000, and 4000 Hertz (Hz).  38 C.F.R. § 4.85.

Rating specialists use either Table VI or VIa of 38 C.F.R. § 4.85 to determine the correct Roman numeral designation.  Table VIa is employed when the use of speech discrimination tests is inappropriate due to language difficulties, inconsistent speech discrimination scores, etc., or where there is an exceptional pattern of hearing loss (as defined in 38 C.F.R. § 4.86).  One such pattern occurs when the puretone threshold at each of the four specialized frequencies (1000, 2000, 3000, and 4000 Hz.) is 55 decibels or more.  38 C.F.R. § 4.86(a).  Another pattern occurs when the puretone threshold at 1000 Hz is 30 decibels or less and the puretone threshold at 2000 Hz is 70 decibels or more.  38 C.F.R. § 4.86(b).

Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern.  See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). 

A claim will be denied only if the preponderance of the evidence is against the claim.  See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990).  Reasonable doubt regarding the degree of disability should be resolved in favor of the claimant.  38 C.F.R. § 4.3.  

The Board notes that it has reviewed all of the evidence in the Veteran's record with an emphasis on the evidence relevant to this appeal.  Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence.  Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).  Hence, the Board will summarize the relevant evidence, as deemed appropriate, and the Board's analysis will focus specifically on what the evidence shows, or does not show, as to the claim.

On April 2011 examination on behalf of VA audiometry, puretone thresholds (in decibels) were:




HERTZ



500
1000
2000
3000
4000
RIGHT
30
35
35
45
50
LEFT
35
40
40
50
65

The right ear puretone threshold average was 41 decibels and the left ear puretone threshold average was 49 decibels.  Speech audiometry revealed speech recognition ability of 80 percent in the right ear and 78 percent in the left.  

At the May 2015 videoconference hearing the Veteran stated that his hearing acuity had worsened since the April 2011 examination.  He described difficulty understanding family, and having to raise television volume all the way up.

On October 2015 VA examination audiometry, puretone thresholds were: 




HERTZ



500
1000
2000
3000
4000
RIGHT
25
20
25
35
45
LEFT
25
30
30
45
50

The right ear puretone threshold average was 31 decibels and the left ear puretone threshold average was 39.  Speech audiometry revealed speech recognition ability of 90 percent in the right ear and 94 percent in the left.

No audiometry during the period under consideration shows a hearing loss disability warranting a compensable rating under the schedular criteria.  The April 2011 examination on behalf of VA found level II acuity in the right ear and level I acuity in the left.  The October 2015 VA audiometry examination found level III hearing acuity in each ear.  Under Table VII the findings on each examination warrant a 0 percent rating under Code 6100.  Neither examination found an exceptional pattern of hearing loss, as defined in 38 C.F.R. § 4.86 (so as to warrant rating under the alternate criteria in Table VIA).  While the October 2015 examination found there has been a worsening in the Veteran's hearing acuity, the level of hearing impairment is not shown to have risen yet to a level warranting a compensable rating.

Regarding the Veteran's assertions that his hearing impairment is greater than reflected by the 0 percent rating assigned, the Board acknowledges that he is competent to testify as to symptoms he experiences, including difficulty hearing.  However, as a layperson, he is not competent to establish his level of hearing acuity by his own opinion.  See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  By governing regulation (38 C.F.R. § 4.85) hearing acuity must be established by audiometry specified in the regulation.  The findings on each audiometry in accordance with the regulatory guidelines during the evaluation period (both by examination on behalf of VA and VA examination) place the Veteran's hearing acuity squarely with the criteria for a 0 percent rating.  The types of impairment he describes (which the Board has no reason to question and accepts at face value), some difficulty communicating with family and having to raise television volume, are contemplated by the criteria for the 0 percent schedular rating assigned.  The preponderance of the evidence is against the Veteran's claim.  Therefore, the appeal in this matter must be denied.


ORDER

A compensable rating for bilateral hearing loss is denied.


____________________________________________
GEORGE R. SENYK
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs