Citation Nr: 1752653	
Decision Date: 11/16/17    Archive Date: 11/22/17

DOCKET NO.  16-53 904	)	DATE
	)
	)

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


THE ISSUE

1.  Entitlement to a disability rating in excess of 80 percent for bilateral hearing loss. 

2.  Entitlement to a total disability rating based on individual unemployability (TDIU).


REPRESENTATION

Veteran represented by:	California Department of Veterans Affairs


ATTORNEY FOR THE BOARD

R. I. Sims, Associate Counsel



INTRODUCTION

The Veteran served on active duty from July 1946 to September 1947.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Anchorage, Alaska that granted an increased disability rating.

November 2015 VA treatment records indicate that the Veteran asserted an inability to work due to his bilateral hearing loss.  The United States Court of Appeals for Veterans Claims (Court) has held that a claim for a TDIU rating is part of an increased rating claim when such claim is raised by the record.  See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009).  In light of the evidence, the issue of TDIU has been raised by the record, is part and parcel of the increased rating claim, and is properly before the Board. Id.    

The issue of entitlement to a total disability rating based on individual unemployability (TDIU) is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  38 U.S.C.A. § 7107(a)(2) (West 2014).


FINDING OF FACT

The Veteran's bilateral hearing loss is manifested by hearing impairment corresponding to auditory acuity of no more than level XI in the right ear and level IX in the left ear.



CONCLUSION OF LAW

The criteria for a disability rating in excess of 80 percent for bilateral hearing loss have not been met.  38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.85, 4.86, Diagnostic Code 6100 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Duties to Notify and Assist

Under applicable criteria, VA has certain notice and assistance obligations to claimants.  See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).  In this case, required notice was provided, and neither the Veteran, nor his representative, has either alleged, or demonstrated, any prejudice with regard to the content or timing of VA's notices or other development.  See Shinseki v. Sanders, 129 U.S. 1696 (2009).  Thus, adjudication of his claim at this time is warranted. 

With respect to the duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c).  The Veteran's service treatment records, VA treatment records, and private treatment records have been obtained, to the extent available.  Additionally, the Veteran was afforded the opportunity to present testimony at a videoconference hearing, but he failed to appear at the scheduled time and has not presented good cause for his absence, or requested rescheduling.  As such, his hearing request is considered to have been withdrawn.

The Veteran was afforded two VA examinations in connection with his claim and neither the Veteran, nor his representative, has objected to the adequacy of the examinations.  See Sickels v. Shinseki, 643 F.3d, 1362, 1365-66 (Fed. Cir. 2011).

The Board finds that there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. § 5103(a), § 5103A, or 38 C.F.R. § 3.159, that the record includes adequate, competent evidence to allow the Board to decide this matter, and that the Veteran will not be prejudiced as a result of the Board's adjudication of his claim.

II.  Increased Ratings

The Veteran submitted an intent to file for an increased disability rating for bilateral hearing loss in April 2015.  A formal claim for an increased rating was filed in July 2015.  In November 2015, the Veteran was granted an increased disability rating for bilateral hearing loss, evaluated at 80 percent disabling, effective April 23, 2015 (the date his intent to file).  The Veteran timely appealed this decision, asserting that he is entitled to a 100 percent disability rating.  

Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity.  38 U.S.C.S. § 1155; 38 C.F.R. Part 4.  Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illness proportionate to the several grades of the disability.  38 C.F.R. § 4.1.  Separate diagnostic codes identify the various disabilities.  38 C.F.R., Part 4.  Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized.  38 C.F.R. § 4.1.  Examination reports are to be interpreted considering the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2.  Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating is to be assigned.  38 C.F.R. § 4.7.

Hearing loss is rated under the criteria of 38 C.F.R. § 4.85, Diagnostic Code 6100.  Disability ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are made.  Bruce v. West, 11 Vet. App. 405 (1998); Lendenmann v. Principi, 3 Vet. App. 345 (1992).  The regulations set forth eleven auditory acuity levels, designated from Roman numerals I to XI, in escalating order of hearing impairment.  38 C.F.R. § 4.85.  The appropriate auditory acuity level is determined based on a combination of the percentage of speech discrimination and the puretone threshold average.  

Additional considerations apply when exceptional patterns of hearing loss are demonstrated, which are defined as either a) puretone averages of 55 or greater at 1000, 2000, 3000, and 4000 Hertz, or; b) a puretone threshold of 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz. 38 C.F.R. § 4.86(a).  Once an acuity level is established for each ear, Table VII, Percentage Evaluations for Hearing Impairment, is used to determine the appropriate disability evaluation.  The appropriate rating is determined based on a combination of the levels of hearing impairment established for each ear.

In October 2015, the Veteran was afforded a VA examination for hearing loss.  The Veteran reported experiencing a decline in hearing acuity bilaterally over the previous few years.  Additionally, he reported that approximately seven to nine years earlier, he had awoken with a complete loss of hearing in the right, which had never completely returned.  This phenomenon occurred again shortly prior to June 2015.  The Veteran was noted to have used a pocket talker in his left ear, but he reported not being able to continuously use it on the left because he experienced pain and anxiety when doing so.  The Veteran was unable to tolerate a hearing aid in the right ear. 

On the authorized audiological evaluation, puretone thresholds, in decibels, were as follows:



HERTZ


1000
2000
3000
4000
RIGHT
85
100
105
105
LEFT
70
80
105
105

Speech audiometry revealed speech recognition ability of 24 percent in the right ear and of 48 percent in the left ear.

Application of these findings to the regulations indicates a puretone threshold average of 99 dB in the right ear and 90 dB in the left ear.  This equates to auditory acuity of level XI in the right ear and level IX in the left ear, resulting is an 80 percent compensable rating when applied to the rating table.

The Veteran's October 2015 examination demonstrates an exceptional pattern of hearing loss in both ears as defined in 38 C.F.R. § 4.86.  Pursuant to Table IVA, the findings translate to auditory acuity of level X in the right ear and level VIII in the left ear, resulting in a 60 percent compensable rating when applied to the rating table.  As such, application of 38 C.F.R. § 4.86 does not result in a higher compensable rating.  

A September 2016 VA audiological evaluation appears in the record.  The results of the audiologic evaluation are in graphical form, but are clear and the Board may review them.  In this regard, the Board observes that in Kelly v. Brown, 7 Vet. App. 471 (1995), the Court determined that the Court could not interpret the results of an audiogram because interpretation required a factual finding, which is not the role of the Court in the first instance.  However, the Court implied that the Board, as the finder of fact, is empowered to make factual findings in the first instance.  

In this role, the Board has reviewed the graphical findings of the audiological report and determined that the results are as follows, with puretone thresholds in decibels: 




HERTZ


1000
2000
3000
4000
RIGHT
90
105
110
110
LEFT
85
90
95
105

Speech audiometry revealed speech recognition ability of 44 percent in the right ear and of 44 percent in the left ear.

Application of these findings to the regulations indicates a puretone threshold average of 104 dB in the right ear and 94 dB in the left ear.  This equates to auditory acuity of level X in the right ear and level IX in the left ear, resulting is a 70 percent compensable rating when applied to the rating table.

The Veteran's September 2016 examination demonstrates an exceptional pattern of hearing loss in both ears as defined in 38 C.F.R. § 4.86.  Pursuant to Table IVA, the findings translate to auditory acuity of level X in the right ear and level IX in the left ear, resulting in a 70 percent compensable rating when applied to the rating table.  Application of 38 C.F.R. § 4.86 does not result in a higher compensable rating.  

In November 2016, the Veteran underwent an audiological evaluation.  The Veteran reported great difficulty hearing and understanding conversations, particularly in noisy poor acoustic environments.  A private audiological evaluation appears in the record.  The results of the audiologic evaluation are in graphical form, but are clear and the Board may review them.  In the role as fact finder, the Board has reviewed the graphical findings of the audiological report and determined that the results are as follows, with puretone thresholds in decibels: 




HERTZ


1000
2000
3000
4000
RIGHT
80
85
100
110
LEFT
75
80
85
95

Speech audiometry revealed speech recognition ability of 28 percent in the right ear and of 48 percent in the left ear.

Application of these findings to the regulations indicates a puretone threshold average of 94 dB in the right ear and 84 dB in the left ear.  This equates to auditory acuity of level XI in the right ear and level IX in the left ear, resulting is an 80 percent compensable rating when applied to the rating table.

The Veteran's November 2016, examination demonstrates an exceptional pattern of hearing loss in both ears as defined in 38 C.F.R. § 4.86.  Pursuant to Table IVA, the findings translate to auditory acuity of level IX in the right ear and level VIII in the left ear, resulting in a 50 percent compensable rating when applied to the rating table.  Application of 38 C.F.R. § 4.86 does not result in a higher compensable rating.  

VA treatment records indicate that the Veteran reported worsening of hearing and having to increase television volume in September 2015.  Additionally, the Veteran submitted written correspondence stating he was told by a VA audiologist that his hearing is substantially worse than it was in June 2015 and warranted applying for an increased disability rating.  

The Board is mindful that an audiologist must provide a description of the functional effects caused by a hearing loss disability.  The Board finds the VA examiner's observation of the Veteran's comments during the October 2015 and November 2016 examinations are sufficient to comply with the applicable VA policies.  Additionally, the Board has considered various lay statements from the Veteran attesting to the impact of his hearing loss.  The Veteran's complaints of symptoms are found to be credible and are afforded great weight.  See Layno v. Brown, 6 Vet. App. 465 (1994); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007).  However, 38 C.F.R. § 4.85 and 4.86 require that specific auditory thresholds and/or speech recognition scores be shown before impaired hearing may be compensable at any rating.

Accordingly, the Board finds that the Veteran's bilateral hearing loss is appropriately rated as 80 percent disabling.


ORDER

A disability rating in excess of 80 percent for bilateral hearing loss is denied. 





REMAND

November 2015 VA treatment records indicate that the Veteran asserted an inability to work due to his bilateral hearing loss.  While the Veteran filed a formal claim for TDIU in February 2017, which is currently awaiting adjudication, pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009), a claim for a TDIU may be either expressly raised by the Veteran or reasonably raised by the record in an attempt to obtain an appropriate rating for a disability.  In such cases, it is considered part of the claim for an increased rating.  

Accordingly, the case is REMANDED for the following action:

Adjudicate the issue of TDIU.  If the claims remain denied, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate time for response. 

The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C. §§ 5109B, 7112 (2012).



____________________________________________
MATTHEW W. BLACKWELDER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs