Citation Nr: 1753460	
Decision Date: 11/21/17    Archive Date: 12/01/17

DOCKET NO.  14-18 390	)	DATE
	)
	)

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


THE ISSUE

Entitlement to an initial compensable rating for bilateral hearing loss.


REPRESENTATION

Veteran represented by:	Texas Veterans Commission


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

M.W. Kreindler, Counsel


INTRODUCTION

The Veteran served on active duty from July 1958 to July 1961.

This matter came to the Board of Veterans' Appeals (Board) from an October 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) which granted service connection for bilateral hearing loss, assigning a noncompensable rating, effective March 23, 2010.  

The Veteran testified at a Board hearing in December 2016; the transcript is of record.  Subsequently, the Board remanded this matter in May 2017.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016).  38 U.S.C. § 7107(a)(2) (2012).


FINDING OF FACT

The Veteran has had no worse than level IV hearing loss in the right ear, and no worse than level II hearing loss in the left ear.


CONCLUSION OF LAW

The criteria for entitlement to a compensable disability rating for bilateral hearing loss have not been met.  38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.3, 4.10, 4.85, Diagnostic Code 6100 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  No further notice is required regarding the downstream issue of a higher initial rating for bilateral hearing loss as it stems from the grant of service connection, and no prejudice has been alleged.  

Next, VA has a duty to assist the Veteran in the development of the claim.  This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary.  38 U.S.C. § 5103A; 38 C.F.R. § 3.159.  The Board noted that the claims file contains the Veteran's VA treatment records.  Moreover, his statements and testimony in support of the claim are of record.  The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim.  Additionally, the Veteran underwent VA examinations, which are addressed in detail below.  

As such, the Board will proceed to the merits of this appeal.

Criteria & Analysis

Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability.  38 U.S.C. § 1155; 38 C.F.R. Part 4.  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 required for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  

In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the veteran's condition.  Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991).  As the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time.  The Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made.  The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. 

Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects her ability to function under the ordinary conditions of daily life, including employment, by comparing her symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule).  38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10.  In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition.  The Board has a duty to acknowledge and consider all regulations that are potentially applicable.  The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required.  38 C.F.R. §§ 4.1, 4.2, 4.10. 

The Rating Schedule provides a table for ratings purposes (Table VI) to determine a Roman numeral designation (I through XI) for hearing impairment, established by a state-licensed audiologist including a controlled speech discrimination test (Maryland CNC), and 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.  38 C.F.R. § 4.85.

Table VII is used to determine the percentage evaluation by combining the Roman numeral designations 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.

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.  38 C.F.R. § 4.86(b).

To evaluate the degree of disability from defective hearing, the rating schedule establishes eleven auditory acuity levels designated from "I" for essentially normal acuity, through "XI" for profound deafness.  38 C.F.R. § 4.85, Tables VI, VII.

A noncompensable evaluation is provided where hearing in the better ear is I and hearing in the poorer ear is I through IX; where hearing in the better ear is II, and hearing in the poorer ear is II to IV; or where there is level III hearing in both ears.  A 10 percent disability rating is warranted where hearing in the better ear is I, and hearing in the poorer ear is X to XI; or where hearing in the better ear is II, and hearing in the poorer ear is V to XI; or where hearing in the better ear is III, and hearing in the poorer ear is IV to VI..  38 C.F.R. § 4.85, Table VII, Diagnostic Code 6100.  

Pertinent case law provides that the assignment of disability ratings for hearing impairment are to be derived by the mechanical application of the Ratings Schedule to the numeric designations assigned after audiometry evaluations are rendered.  Lendenmann v. Principi, 3 Vet. App. 345 (1992).

The Veteran has been assigned a noncompensable evaluation throughout the rating period on appeal and the Board finds no basis for an award of a higher rating, as discussed below.  

In July 2010, the Veteran underwent a VA examination.  Pure-tone thresholds for the ears were as follows:


HERTZ

1000
2000
3000
4000
RIGHT
20
20
25
40
LEFT
20
30
45
35

The pure tone average in the right ear was 26.25 decibels and 32.5 decibels in the left ear.  The speech recognition score was 94 percent in the left ear and 100 percent in the right ear.  Such findings translate to level I in both ears.  38 C.F.R. § 4.85, Table VI.  Applying Table VII, Diagnostic Code 6100, this equates to a 
0 (zero) percent disability rating.  

In October 2011, the Veteran underwent a VA audiological evaluation.  Pure-tone thresholds for the ears were as follows:


HERTZ

1000
2000
3000
4000
RIGHT
15
25
40
60
LEFT
20
25
50
40

The pure tone average in the right ear was 35 decibels and 34 decibels in the left ear.  Speech recognition scores were 96 percent in both ears.  Such findings translate to level I hearing in both ears.  38 C.F.R. § 4.85, Table VI.  Applying Table VII, Diagnostic Code 6100, this equates to a 0 (zero) percent disability rating. 

In August 2014, the Veteran underwent a VA audiological evaluation.  Pure-tone thresholds for the ears were as follows:


HERTZ

1000
2000
3000
4000
RIGHT
30
45
50
60
LEFT
25
35
50
55

The pure tone average in the right ear was 46.25 decibels and 41.25 decibels in the left ear.  Speech recognition scores were 96 percent in the right ear and 88 percent in the left ear.  Such findings translate to level I hearing in the right ear and level II hearing in the left ear.  38 C.F.R. § 4.85, Table VI.  Applying Table VII, Diagnostic Code 6100, this equates to a 0 (zero) percent disability rating.  The functional impact was that he was unable to understand speech.

An August 2014 VA audiological consultation reflects the following pure-tone thresholds for the ears as follows:


HERTZ

1000
2000
3000
4000
RIGHT
20
30
50
55
LEFT
25
30
55
55

The pure tone average in the right ear was 38.75 (rounded up to 38) decibels and 41.25 decibels in the left ear.  Speech recognition scores were 96 percent in both ears.  Such findings translate to level I hearing in both ears.  38 C.F.R. § 4.85, Table VI.  Applying Table VII, Diagnostic Code 6100, this equates to a 0 (zero) percent disability rating.  05/18/2017 CAPRI at 82.

Subsequent to the Board's 2016 remand, in June 2017, the Veteran underwent a 
VA audiological evaluation.  Pure-tone thresholds for the ears were as follows:


HERTZ

1000
2000
3000
4000
RIGHT
50
50
65
75
LEFT
40
50
65
70

The pure tone average in the right ear was 60 decibels and 56.25 decibels in the left ear.  Speech recognition scores were 78 percent in the right ear and 86 percent in the left ear.  Such findings translate to level IV hearing in the right ear and level II hearing in the left ear.  38 C.F.R. § 4.85, Table VI.  Applying Table VII, Diagnostic Code 6100, this equates to a 0 (zero) percent disability rating.

The Board acknowledges the Veteran's statements regarding his hearing loss.  Specifically, he asserts that he is having problems with speech recognition and has problems hearing his grandchildren and soft-spoken people.  12/06/2010 Hearing Transcript at 8, 11-12.  The Board also acknowledges the statements submitted by the Veteran's spouse, daughter, grandson, and employer with regard to the Veteran's hearing loss.  The rating criteria are intended to compensate for the impairment resulting from the hearing loss disability.  38 C.F.R. §§ 4.1, 4.85.  However, the pertinent and objective evidence of hearing impairment does not approximate the criteria for a compensable disability rating.  Lendenmann, 3 Vet. App. at 349 (noting that when VA assigns a schedular disability rating to a veteran's hearing loss, it generally is required by law to base its decision entirely on audiometric testing results); 38 C.F.R. § 4.85, Tables VI and VII, Diagnostic Code 6100.  

Applying the audiologic test results most favorable to the Veteran to the regulatory criteria, the Board is compelled to conclude that the preponderance of the evidence is against entitlement to a compensable disability rating for bilateral hearing loss disability.  Thus, there is no reasonable doubt to be resolved.  

The United States Court of Appeals for Veterans Claims (Court) recently discussed extraschedular consideration in the context of bilateral hearing loss:

[T]he Court holds that the [schedular] 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.  Thus, when a claimant's hearing loss results in an inability to hear or understand speech or to hear other sounds in various contexts, those effects are contemplated by the schedular rating criteria.  However, as the rating criteria do not otherwise discuss, let alone account for, other functional effects, such as dizziness, vertigo, ear pain, etc., the Court cannot conclude that the rating schedule, on its face, contemplates effects other than difficulty hearing or understanding speech.

Doucette v. Shulkin, 28 Vet. App. 366, 369 (2017) (emphasis added).  The Court further noted that "a hearing loss claimant could provide evidence of numerous symptoms, including-for purposes of example only-ear pain, dizziness, recurrent loss of balance, or social isolation due to difficulties communicating, and the Board would be required to explain whether the rating criteria contemplate those functional effects."  Id. at 371.

In the decision here on appeal, the Board notes that the 2017 VA examination report reflects that the Veteran reported that people have to repeat themselves all of the time.  The 2014 VA examination report reflects that the functional impact of his hearing loss is that he is unable to understand speech.  The 2011 VA examination report reflects that the Veteran reported difficulty hearing television at volume levels comfortable for others (needs higher volume), complaints from his wife about television volume and his difficulty hearing grandchildren.  Correspondence dated in August 2014 from the Veteran's employer reflects that he Veteran does not hear the door chime in the office, he has problems answering the phone and hearing clients, and people have to speak loudly and very clearly for him to understand.  08/06/2014 Third Party Correspondence.  While acknowledging the functional effects and limitations associated with his hearing loss, in consideration of Doucette, the Board finds that the schedular rating contemplates the effects of the Veteran's service-connected bilateral hearing loss as they are related to functional effects of decreased hearing and difficulty understanding speech in an everyday work environment.

In summary, for the reasons and bases expressed above, the Board has concluded that a compensable initial rating is not warranted for bilateral hearing loss and the benefit of the doubt is not applicable.  Accordingly, the benefit sought on appeal is denied.



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ORDER

An initial compensable rating for bilateral hearing loss is denied.




____________________________________________
	Paul Sorisio
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs