Citation Nr: 1753463	
Decision Date: 11/21/17    Archive Date: 12/01/17

DOCKET NO. 14-01 242	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Phoenix, Arizona


THE ISSUE

Entitlement to an initial compensable disability rating for bilateral hearing loss.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

M. Thompson, Associate Counsel



INTRODUCTION

The Veteran served on active duty in the United States Air Force from June 1966 to June 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. 

This matter was remanded by the Board in September 2015 for further development and has since been returned to the Board for appellate review. 


FINDINGS OF FACT

1. Prior to October 13, 2016, the audiometric evidence has shown the Veteran's hearing acuity is manifested by a Level I in the left ear and Level I in the right ear.

2. On and after October 13, 2016, the audiometric evidence has shown the Veteran's hearing acuity is manifested by a Level V in the left ear and Level II in the right ear.


CONCLUSIONS OF LAW

1. Prior to October 13, 2016, the criteria for an initial compensable rating for bilateral hearing loss have not been met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.85, Diagnostic Code (DC) 6100 (2017). 

2. On and after October 13, 2016, the criteria for a 10 percent rating, but no higher, for bilateral hearing loss are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.85, DC 6100 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Duties to Notify and Assist

The Veteran is challenging the evaluation assigned in connection with the grant of service connection for bilateral hearing loss. Where an underlying claim has been granted and there is disagreement as to "downstream" questions, the claim has been substantiated, and there is no need to provide additional § 5103 notice or prejudice from absent notice. Hartman v. Nicholson, 483 F.3d 1311, 1314-15 (Fed. Cir. 2007); VAOPGCPREC 8-2003 (Dec. 22, 2003).

In addition, the duty to assist the Veteran has also been satisfied in this case. The Veteran's service treatment records as well as all identified and available post-service medical records are in the claims file. The Veteran has not identified any available, outstanding records that are relevant to the claim decided herein. 

The Veteran was afforded multiple VA examinations in connection with his claim, and a clarifying opinion was obtained for the claim. The Board finds that the VA examination reports and opinions, when taken together, are adequate to decide the case because they are predicated on a review of the claims file, as well as on an examination during which a history was solicited from the Veteran. In addition, the VA examinations, when taken together, fully address the rating criteria that are relevant to rating the disability in this case. With respect to claims for hearing loss, a VA audiologist must dictate objective test results and fully describe the functional effects caused by a hearing disability in his or her final report. Martinak v. Nicholson, 21 Vet. App. 447 (2007). Here, the VA examiners addressed the Veteran's lay accounts of hearing difficulty in various settings. Furthermore, even if an audiologist's description of the functional effects of the veteran's hearing disability was somehow defective, there has been no allegation of any prejudice caused by a deficiency in the examinations here. Martinak, 21 Vet. App. 447. Based on the foregoing, the Board finds the VA examinations are adequate under Martinak and the functional effects of his hearing loss were adequately addressed.

Moreover, there is no objective evidence indicating that there has been a material change in the severity of the Veteran's service-connected disability since he was last examined. 38 C.F.R. § 3.327(a) (2017). The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. Palczewski v. Nicholson, 21 Vet. App. 174 (2007) (noting that the passage of time alone, without an allegation of worsening, does not warrant a new examination); VAOPGCPREC 11-95 (April 7, 1995). Based on the foregoing, there is adequate medical evidence of record to make a determination in this case. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. 

For these reasons, the Board concludes that VA has fulfilled the duty to assist the Veteran in this case. Hence, there is no error or issue that precludes the Board from addressing the merits of this appeal.

II. Increased Rating

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4 (2017). The 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. § 1155 (2012); 38 C.F.R. § 4.1 (2017). 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 (2017). When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3 (2017). 

In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2017). Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the Veteran's medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999). 

Where entitlement to compensation has been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where an appeal is based on an initial rating for a disability, however, evidence contemporaneous with the claim and the initial rating decision are most probative of the degree of disability existing when the initial rating was assigned and should be the evidence "used to decide whether an original rating on appeal was erroneous." Fenderson v. West, 12 Vet. App. 119, 126 (1999). In either case, if later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, staged ratings may be assigned for separate periods of time. Fenderson, 12 Vet. App. at 126; Hart v. Mansfield, 21 Vet. App. 505 (2007) (noting that staged ratings are appropriate whenever the factual findings show distinct time periods in which a disability exhibits symptoms that warrant different ratings). When adjudicating a claim for an increased initial evaluation, the relevant time period is from the date of the claim. Moore v. Nicholson, 21 Vet. App. 211, 215 (2007), rev'd in irrelevant part, Moore v. Shinseki, 555 F.3d 1369 (2009). 

The Veteran is currently assigned a noncompensable initial disability rating for his service-connected bilateral hearing loss. It is his contention that a compensable disability rating is warranted for that disability.

The appropriate disability rating for hearing impairment is determined under the criteria in 38 C.F.R. §§ 4.85, 4.86 (2017). The Rating Schedule provides a table for rating purposes (Table VI) to determine a Roman numeral designation (I through XI) for hearing impairment, based on testing (by a state-licensed audiologist) including puretone thresholds and speech discrimination (Maryland CNC test). See 38 C.F.R. § 4.85. Where there is an exceptional pattern of hearing impairment (as defined in 38 C.F.R. § 4.86) the rating may be based solely on puretone threshold testing. See 38 C.F.R. § 4.85, Table VIa. One exceptional pattern of hearing impairment occurs when the puretone thresholds in each of the four frequencies (1,000, 2,000, 3,000 and 4,000 Hertz) are 55 decibels or greater. Another occurs when the puretone threshold at 1000 hertz is 30 decibels or less, and the threshold at 2000 hertz is 70 decibels or more. See 38 C.F.R. § 4.86(a) (b). Table VII is used to determine the rating assigned by combining the Roman numeral designations for hearing impairment of each ear. 

Table VIa, Numeric Designation of Hearing Impairment Based Only on Puretone Threshold Average, is used to determine a Roman numeral designation (I through XI) for hearing impairment based only on the puretone threshold average. Table VIa will be used when the examiner certifies that use of the speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc., or when indicated under the provisions of § 4.86. 38 C.F.R. § 4.85 (2017).

Ratings for hearing impairment are derived by the mechanical application of the Rating Schedule to the numeric designations assigned after audiometry evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345 (1992).

The audiometry record available for rating purposes during the appeal period consists of audiograms conducted during VA examinations in March 2010, September 2011, and October 2016. 

The March 2010 VA audiological examination found puretone thresholds in decibels as: 

 
 
 
HERTZ
 
 
 
1000
2000
3000
4000
Avg
RIGHT
15
55
65
70
51.25
LEFT
20
35
60
55
42.5

The average puretone thresholds were 51.25 decibels in the right ear and 42.5 in the left ear. Speech audiometry revealed speech recognition ability of 92 percent in the right ear and 96 percent in the left ear. The Veteran reported that he had difficulty hearing when performing occupational activities. 

The September 2011 VA audiological examination found puretone thresholds in decibels as: 

 
 
 
HERTZ
 
 
 
1000
2000
3000
4000
Avg
RIGHT
25
60
65
75
56
LEFT
25
40
60
60
46

The average puretone thresholds were 56 decibels in the right ear and 46 in the left ear. Speech audiometry revealed speech recognition ability of 96 percent in the right ear and 96 percent in the left ear. The Veteran reported that the hearing loss impacts ordinary conditions of daily life, including the ability to work. The Veteran stated that he is unable to carry on conversations, because people have to repeat themselves, and to hear the television. 

On the January 2014 substantive appeal the Veteran stated that he has a lot of trouble hearing when someone talks to him or when he talks on the telephone.  The Veteran stated that he is constantly apologizing to people who talk to him and has to explain to them that he has a hearing problem so people start speaking to him in a much higher tone, which is very embarrassing for him. The Veteran further challenged the validity of the VA audiological examinations because he was tested in a sound proof room with head phones directly on his ears and not in a realistic open environment with numerous other sounds happening at the same time. 

The October 2016 VA audiological examination found puretone thresholds in decibels as: 

	
 
 
 
HERTZ
 
 
 
1000
2000
3000
4000
Avg
RIGHT
35
70
70
80
64
LEFT
50
70
70
70
65

The average puretone thresholds were 64 decibels in the right ear and 65 in the left. Speech audiometry revealed speech recognition ability of 96 percent in the right ear and 80 percent in the left ear. The examiner found that the word discrimination score was appropriate for the Veteran in the right ear. However, the examiner noted that the use of the word recognition score was not appropriate for the Veteran in the left ear because of language difficulties, cognitive problems, inconsistent word recognition scores, etc. that make combined use of puretone average and word recognition scores inappropriate. See 38 C.F.R. § 4.85(c) (2017). The Veteran reported that the hearing loss impacts ordinary conditions of daily life, including the ability to work. The Veteran stated that he has worn VA issued hearing aids since 2012. He noted that he has to wear them if answering the telephone, watching television, or if he is going to communicate, otherwise he is unable to do these things. 

With respect to the September 2011, February 2012, and March 2012 VAMC Phoenix audiological evaluations, only the graphic representation of the audiogram was included in the record, with no numeric interpretation provided. Nevertheless, as the audiometric results were conveyed in a straightforward graph, the Board finds that it, as the finder of fact, can interpret the chart to determine the numeric values of the puretone levels of adjudication purposes. See Kelly v. Brown, 7 Vet. App. 471 (1995). However, testing of hearing loss disability for VA rating purposes must also meet specific requirements, to include speech discrimination testing in a controlled setting using a Maryland CNC word list. There is no indication in the record that the September 2011, February 2012, and March 2012 VAMC Phoenix audiological evaluations were conducted in the manner prescribed. Thus, the Board finds that these audiological examinations are not probative because they do not contain a Maryland CNC test and therefore do not comply with 38 C.F.R. § 4.85. Therefore, the September 2011, February 2012, and March 2012 VAMC audiological examinations are not adequate for rating purposes. 

Upon review of the record, the Board finds that a compensable evaluation is permitted for bilateral hearing loss from October 13, 2016. 

The Board first finds that the March 2010 VA examination results in a Roman numeral designation of Level I for the right ear and Level I for the left ear. Taken together, these findings result in a zero percent, or noncompensable, evaluation. See 38 C.F.R. § 4.85, Table VII. Similarly, the September 27, 2011 VA examination results in a Roman numeral designation for the right ear of Level I and Level I for the left ear. Taken together, these findings result in a zero percent, or noncompensable, evaluation. See 38 C.F.R. § 4.85, Table VII. 

The October 13, 2016 VA examination results in a Roman numeral designation for the right ear of Level II. For the left ear the Roman numeral designation is Level V from Table VIa, as a result of a 38 C.F.R. § 4.85(c) finding by the examiner that the speech discrimination score was not appropriate for the left ear. Taken together, these findings result in 10 percent evaluation.. See 38 C.F.R. § 4.85, Table VII. 

Therefore, the Board concludes that prior to October 13, 2016, the Veteran's hearing loss is correctly evaluated as noncompensably disabling, and a higher rating is not warranted. The Board further finds that,on and after October 13, 2016, the Veteran's hearing loss warrants a disability rating of 10 percent, but no higher.  

Lay persons are competent to provide opinions on some medical issues. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). However, in this case, such an opinion falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). To the extent that the Veteran contends that his hearing loss is more severe than currently evaluated, while he is competent to describe that he has difficulty hearing, he is not competent to report that his hearing acuity is of sufficient severity to warrant a certain percent evaluation under VA's tables for rating hearing loss disabilities because such an opinion requires medical expertise, which he does not possess. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau, 492 F.3d 1372.

While the Board is sympathetic to the Veteran's assertions that he suffers from hearing loss, the VA rating criteria are definitive and provide for a precise result based on audiometric test results. His subjective report of difficulty hearing unfortunately cannot be the basis for an evaluative rating. The Board is bound to apply the VA rating schedule, under which the rating criteria are defined by audiometric test findings involving hearing acuity in a controlled laboratory environment. As a result, the Board finds the results of the VA examinations to be more probative than the lay evidence, and the Veteran's request for ratings higher than assigned herein must be denied. 


ORDER

Prior to October 13,2016, entitlement to a compensable rating for service-connected bilateral hearing loss is denied.

On and after October 13, 2016, a rating of 10 percent for service-connected bilateral hearing loss is granted. 



____________________________________________
CAROLINE B. FLEMING
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs