Citation Nr: 1752354	
Decision Date: 11/15/17    Archive Date: 11/22/17

DOCKET NO.  14-02 722	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUE

Entitlement to a compensable disability rating for bilateral hearing loss.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

N. Keogh, Associate Counsel 



INTRODUCTION

The Veteran served on active duty from October 1959 to March 1960. 

This appeal to the Board of Veterans' Appeals (Board) arose from a February 2012 rating decision in which the Department of Veterans Affairs (VA) Regional Office (RO) denied a compensable rating for bilateral hearing loss.  

In February 2015, August 2015, January 2016, and November 2016, the Board remanded this claim for further development.  

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  38 U.S.C. § 7107(a)(2) (2012).


FINDING OF FACT

The Veteran has no greater than Level II hearing loss in both ears for the entire period on appeal. 


CONCLUSION OF LAW

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

REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Duties to Notify and Assist

VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012) and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). 

VA's duty to notify was satisfied by an October 2011 letter.  See 38 U.S.C. 
§§ 5102, 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).

VA also met its duty to assist the Veteran.  VA obtained all relevant medical records and evidence identified by the Veteran.  These records have been associated with the claims file.  

The record indicates that VA has attempted to schedule the Veteran several times for VA examinations.  In April 2015, the Veteran declined a VA examination.  In January 2016, the RO attempted to schedule the Veteran for a VA examination; however, the Veteran requested that the examination be scheduled at a Community Based Outpatient Clinic (CBOC) near his home.  See January 2016 Veteran's statement.  The RO attempted to accommodate the request, but it was determined that the examination could not be provided at the CBOC, and the Veteran was informed in May 2016.  See May 2016 email.  The RO attempted unsuccessfully to contact the Veteran to reschedule the examination in June 2016.

Pursuant to the November 2016 Board remand, the Veteran was afforded an opportunity to schedule a private audiological examination.  February 2017 email correspondence from a VAMC reflects that a private audiologist was not available.  The Veteran was contacted and informed of such, and he reported that he did not believe his hearing has gotten any worse and did not want to have any further testing.  

The provisions of 38 C.F.R. § 3.655 address the disposition of claims where claimants for VA benefits fail to report for scheduled examinations without good cause.  Under 38 C.F.R. § 3.655(b), when a claimant fails to report for an examination scheduled in conjunction with a claim for an increase, the claim shall be denied.  Nevertheless, the Veteran did report to the initial VA examination (January 2012) scheduled in connection with his initial October 2011 claim for an increase.  Accordingly, the Board will rate the claim based on the evidence of record.

The Board finds there has been substantial compliance with all prior remand directives.  See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall (Stegall v. West, 11 Vet. App. 268 (1998)) violation when the examiner made the ultimate determination required by the Board's remand.)   

As such, the Board will proceed to review and decide the claim based on the evidence that is of record.

II.  Increased Rating for Hearing Loss

Legal Criteria 

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 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.  See 38 U.S.C. § 1155; 38 C.F.R. § 4.1.

The Veteran contends that his service-connected bilateral hearing loss disability is more severely disabling than reflected by the evaluation assigned.  Assignment of a disability rating for hearing loss is derived by a mechanical application of the rating schedule to the specific numeric designations assigned after audiology testing is completed.  Lendenmann v. Principi, 3 Vet. App. 345 (1992).  An examination for hearing impairment for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a pure tone audiometry test.  38 C.F.R. § 4.85.

Evaluations of defective hearing 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 audiometric tests in the frequencies 1000, 2000, 3000, and 4000 Hertz.  38 C.F.R. § 4.85 Diagnostic Code 6100.  To evaluate the degree of disability from defective hearing, the Rating Schedule requires assignment of a Roman numeral designation, ranging from Level I to Level XI.  Other than exceptional cases, VA arrives at the proper designation by mechanical application of Table VI, which determines the designation based on results of standard test parameters.  Table VII is then applied to arrive at a rating based upon the respective Roman numeral designations for each ear. 

In exceptional cases, when the pure tone threshold at each of the four specified frequencies of 1000, 2000, 3000, and 4000 Hertz is 55 decibels or more, the rating specialist will determine the level designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral.  38 C.F.R. § 4.86. Each ear will be evaluated separately.  38 C.F.R. § 4.86(a).  Further, when the average pure tone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, VA will determine the level 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 level.  Each ear will be evaluated separately.  38 C.F.R. § 4.86(b).

Analysis 

The Veteran is service connected for bilateral hearing loss.  The Veteran contends that his hearing loss warrants a compensable rating.

The Veteran provided an October 2011 private treatment record with audiometric findings and speech discrimination scores.  See October 2011 private audiology report from Dr. R.M.  However, to be adequate for rating purposes there must be a controlled puretone audiometry test and a Maryland CNC test to determine speech discrimination.  As it is not clear what testing was used to conduct the October 2011 private audiometry test, it cannot be used for rating purposes.

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



HERTZ



1000
2000
3000
4000
RIGHT
25
60
85
100
LEFT
30
65
80
90

Speech audiometry revealed speech recognition ability of 94 percent in the right ear and of 100 in the left ear.  The average decibel loss is 67.5 in the right ear and 66.25 in the left ear.

Under Table VI, the examination results correspond to a Level II hearing impairment for the right ear and a Level II hearing impairment for the left ear.  38 C.F.R. § 4.85.  Pursuant to Table VII, applying the scores of Level II in the left ear and Level II in the right ear results in a noncompensable disability rating.  The Veteran's bilateral hearing disability does not meet the criteria of an exceptional pattern of hearing loss.  38 C.F.R. § 4.86.

The Veteran had additional hearing testing at the VA in March 2014, May 2015, and February 2017.  It was noted that no significant change in hearing was evident among the tests.  Word recognition was good in both ears on a standard test (W22 word list).  As noted above, the Maryland CNC test must be used.  As it was not, these results are not valid for rating purposes.  

Based on the above findings, the Board finds that the Veteran's hearing loss does not warrant a compensable evaluation for the period on appeal.  The Board has considered the Veteran's assertions as to the severity of his hearing loss, including his reports of difficulty hearing conversations and understanding speech.  The Court has held that the rating criteria for hearing loss contemplate the functional effects of decreased hearing and difficulty understanding speech in an everyday work environment as these are precisely the effects that VA's audiometric tests are designed to measure.  Doucette v. Shulkin, 38 Vet. App. 366, 369-70 (2017).  The situations noted by the Veteran in this case amount to decreased hearing and difficulty understanding speech in an everyday work environment and are not exceptional or unusual for someone with hearing loss.  In Doucette, the Court recognized that there were other functional effects the rating criteria did not discuss or account for, such as dizziness, vertigo, ear pain, recurrent loss of balance, social isolation, etc.  No such effects are present in this case.  The challenges associated with the Veteran's hearing loss, as described by him, are contemplated by the rating criteria, which are designed to take into account the average impairment resulting from service-connected disabilities, including the impact on employment and occupational functioning.  38 U.S.C. § 1155; 38 C.F.R. § 4.1.  

In summary, the preponderance of evidence is against granting a compensable schedular rating for bilateral hearing loss.  Therefore, the appeal as to this issue must be denied.  There is no reasonable doubt to be resolved as to this issue.  See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).


ORDER

Entitlement to an increased (compensable) evaluation for service-connected bilateral hearing loss is denied.




____________________________________________
S. HENEKS
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs