Citation Nr: 1753630	
Decision Date: 11/22/17    Archive Date: 12/01/17

DOCKET NO.  13-10 561	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee


THE ISSUE

Entitlement to an initial compensable rating for bilateral hearing loss.


REPRESENTATION

Appellant represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

T. N. Shannon, Associate Counsel


INTRODUCTION

The Veteran had periods of active and inactive duty from January 1984 to June 2015.

This case comes to the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee, that granted service connection for bilateral hearing loss, which was assigned an initial noncompensable disability evaluation, effective May 5, 2010.

In the Veteran's April 2013 substantive appeal, he indicated that he was only appealing the issue of entitlement to service connection for a sleep disorder.  In April 2015, the Veteran testified during a hearing before the undersigned.  At the hearing, the undersigned waived filing of a substantive appeal as to the hearing loss issue.  See Percy v. Shinseki, 23 Vet. App. 37 (2009).

In June 2015, the Board remanded the appeal to the RO for additional development.  The matter has been returned to the Board for further appellate consideration.  See Stegall v. West, 11 Vet. App. 268 (1998).

In December 2015, the RO granted the Veteran's entitlement to service connection for sleep apnea.  Therefore the only remaining issue on appeal is entitlement to an initial compensable rating for bilateral hearing loss, which will be addressed herein.


FINDING OF FACT

For the period on appeal, the Veteran's bilateral hearing loss has been productive of no worse than Level II acuity in the right ear and no worse than Level II acuity in the left ear.



CONCLUSION OF LAW

The criteria for a compensable rating for a bilateral hearing loss disability have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.7, 4.85, 4.86 (2016), Diagnostic Code 6100 (2016).


REASONS AND BASES FOR FINDING AND CONCLUSION

Duty to Notify and Assist

VA has a duty to notify the claimant of the information and evidence necessary to substantiate a claim for VA benefits and to assist claimants in obtaining that evidence.  38 U.S.C.A. §§ 5103, 5103A (West 2014); 38 U.S.C.A. § 3.159 (2016).  

In the April 2015 videoconference hearing, the Veteran's representative stated the Veteran had a VA audiogram in April 2013, which was not of record.  VA made inquiries only to learn there were no records available which included the reported audiogram.  In September 2015, the Veteran was notified that VA was unable to obtain the audiogram and asked that the Veteran provide a copy of the record.  VA made efforts again in July 2016 to obtain the April 2013 audiogram and received a negative response in October 2016.  Additionally, the Veteran was asked to complete an authorization and consent form to release information in order for VA to obtain his private audiology records.  VA has yet to receive the Veteran's completed authorization and consent for these private records.

In accordance with the June 2015 remand, VA has obtained the Veteran's Army Reserve records indicating his periods of duty active duty for training (ACDUTRA)  and inactive duty training (INACDUTRA) between 1983 and 2015 as well as the service treatment records associated with his Reserve service.  VA has satisfied its duty to notify and assist.

Neither the Veteran nor his representative has raised any other issues with the duty to notify or duty to assist.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "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 a duty to assist argument).

Applicable Laws and Regulations

Disability ratings are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4.  The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations.  38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1.

In evaluating the severity of a particular disability, it is essential to consider its history.  38 C.F.R. § 4.1 (2013); Peyton v. Derwinski, 1 Vet. App. 282 (1991).  In the case of an initial rating following the grant of service connection, there is consideration of staged ratings to account for changes in the disability during the period beginning with the effective date of service connection.  Fenderson v. West, 12 Vet. App. 119 (1999).

If the evidence for and against a claim is in equipoise, the claim will be granted.  A claim will be denied only if the preponderance of the evidence is against the claim.  See 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990); 38 C.F.R. § 3.102.  Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3.  Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation.  Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7.

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 puretone audiometry test.  38 C.F.R. § 4.85.

The rating schedule establishes 11 auditory hearing acuity levels based upon average puretone thresholds and speech discrimination.  See 38 C.F.R. § 4.85.  "Puretone threshold average" as used in Tables VI and VIA is the sum of the puretone thresholds at 1000, 2000, 3000 and 4000 Hertz and divided by four.  This average is used in all cases (including those of § 4.86) to determine a Roman numeral designation from Tables VI and VIA.  38 C.F.R. § 4.85(d).

Table VI, "Numeric Designation of Hearing Impairment Based on Puretone Threshold Average and Speech Discrimination," is used to determine a Roman numeral designation (I through XI) for hearing impairment based on a combination of the percent of speech discrimination (horizontal rows) and the puretone threshold average (vertical columns).  The Roman numeral designation is located at the point where the row and column intersect.  38 C.F.R. § 4.85(b).

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 puretone threshold average.  Table VIA is used when the examiner certifies that the use of the speech discrimination test is not appropriate due to language difficulties, inconsistent speech discrimination scores, etc., or when indicated under the provisions of § 4.86. 38 C.F.R. § 4.85(c).

Table VII, "Percentage Evaluations of Hearing Impairment," is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment in each ear.  The horizontal rows represent the ear having better hearing and the vertical columns represent the ear having the poorer hearing.  The percentage evaluation is located at the point where the row and the column intersect.  38 C.F.R. § 4.85(e).

Special provisions apply in instances of exceptional hearing loss.  See 38 C.F.R. § 4.86.  When the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) are all 55 decibels or more, the adjudicator must determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA in 38 C.F.R. § 4.85, whichever results in the higher numeral. 38 C.F.R. § 4.86(a). 

Also, 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 Roman numeral.  Each ear is evaluated separately.  38 C.F.R. § 4.86(b).

Facts and Analysis

The Veteran received an audiological examination in August 2010.  At that time, the Veteran reported he had difficulty hearing in the presence of background noise and at a distance.  He complained of having to increase the volume on his television.  He also stated that he had trouble hearing while in class and was required to ask for repetition.  See August 2010 Audiogram at Page 3.  The results of that audiological examination, as measured by a puretone audiometry test, were as follows:




HERTZ


1000
2000
3000
4000
RIGHT
55
45
35
40
LEFT
55
45
35
40

The average puretone threshold in each ear was 44 decibels.  Speech audiometry revealed a speech recognition ability of 88 percent in the right ear and of 92 percent in the left ear.  

When combined, the puretone thresholds and the speech recognition ability translated to a manifestation of Level II in the right ear and a manifestation of Level I in the left ear.  38 C.F.R. § 4.85, Table VI.  When the numeric designation of Level II is combined with the numeric designation of Level I, the overall level of hearing impairment is commensurate with a noncompensable rating.  38 C.F.R. § 4.85, Table VII.

The Veteran received an audiological examination in January 2015.  It is noted during this examination that the Veteran failed to meet service retention standards due to his bilateral hearing loss.  The results of that audiological examination, as measured by a puretone audiometry test, were as follows:



HERTZ



1000
2000
3000
4000
RIGHT
60
45
40
35
LEFT
55
55
40
35

The average puretone threshold in the right ear was 45 and 46 in the left.  Speech audiometry revealed a speech recognition ability of 96 percent in the right ear and of 92 percent in the left ear.

When combined, the puretone thresholds and the speech recognition ability translated to a manifestation of Level I in the right ear and a manifestation of Level I in the left ear.  38 C.F.R. § 4.85, Table VI.  When the numeric designation of Level I is combined with the numeric designation of Level I, the overall level of hearing impairment is commensurate with a noncompensable rating.  38 C.F.R. § 4.85, Table VII.

The Veteran received a VA audiological examination in October 2015.  During this examination, the Veteran stated his hearing loss was greatly affecting his employment.  The Veteran stated that when he is working at the hospital, as a respiratory technician, and he is listening to breath sounds; he has to get a colleague to verify what he has heard.  The Veteran stated that he is getting dizzy after sitting for longer than 30 minutes.  He further described how his wife often complains that he does not hear her and that the television is too loud.  See October 2015 VA Audiology Exam at Page 5.  The results of that audiological examination, as measured by a puretone audiometry test, were as follows:



HERTZ



1000
2000
3000
4000
RIGHT
55
50
45
50
LEFT
55
55
45
45

The average puretone threshold in each ear was 50.  Speech audiometry revealed a speech recognition ability of 84 percent in the right ear and of 84 percent in the left ear.

When combined, the puretone thresholds and the speech recognition ability translated to a manifestation of Level II in the right ear and a manifestation of Level II in the left ear.  38 C.F.R. § 4.85, Table VI.  When the numeric designation of Level II is combined with the numeric designation of Level II, the overall level of hearing impairment is commensurate with a noncompensable rating.  38 C.F.R. § 4.85, Table VII.

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 puretone audiometry test. 38 C.F.R. § 4.85.  Each examiner and audiological examination has met the aforementioned requirements.  There is no evidence to indicate each examiner is neither competent nor credible to conduct the examinations.  Therefore, the Board finds the audiological examination results and opinions in August 2010, January 2015 and October 2015 to be credible and will afford each examination great probative weight.

The Veteran submitted a statement dated May 17, 2010 from C.S.  C.S. reports that through his years of working with the Veteran he noticed that he has to raise his voice and repeat work assignments to the Veteran.  The Board finds C.S., a colleague who has worked with the Veteran, is competent and credible to report his interactions with the Veteran over the years.  This statement is provided great probative weight.

At the April 2015, hearing the Veteran testified that his hearing loss had worsened.  He stated that he could not watch TV in the same room with his wife as he tended to keep the volume too loud.  He also testified that his hearing loss affected his employment as a respiratory therapist.  He described having to ask his colleagues for help listening and confirming breath sounds as he could not hear these sounds.  He had purchased a new more expensive stethoscope so he could hear better.  He also used hearing aids.  When the Veteran attended a movie with his wife, he often had to ask her what was said.  Id at Page 9.  The Veteran stated that it is harder for him to hear and that he has to read lips to understand people.  He could not hear someone speaking if they were behind him.  

The Veteran's testimony is competent and credible in reporting his symptoms and the functional impacts of his hearing loss.  In Doucette v. Shulkin, 28 Vet. App. 366 (2017), however, the Court held that the rating criteria for hearing loss contemplates 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 Veteran'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.  See Doucette.  Absent audiometric and speech discrimination scores showing the Veteran's hearing loss disability meets the schedular criteria for a compensable rating; his reported functional impairment does not provide a basis for such a rating.  Id.

The preponderance of the evidence is against compensable initial rating at any time since the effective date of service connection.  There is no evidence to suggest that during the period of appeal, a compensable rating for a bilateral hearing loss disability is warranted.  The impairment associated with this disability is contemplated by the rating criteria, which considers the average impairment resulting from a service-connected disability.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.

For these reasons, an initial compensable rating is not warranted.  .  38 U.S.C.A. § 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 4.3, 4.85, 4.86, Diagnostic Code 6100 (2016); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).


ORDER

Entitlement to an initial compensable evaluation for a bilateral hearing loss disability is denied.




______________________________________________
Mark D. Hindin
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs