Citation Nr: 1753650	
Decision Date: 11/22/17    Archive Date: 12/01/17

DOCKET NO.  12-33 505	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Detroit, Michigan


THE ISSUES

1. Entitlement to a compensable initial rating for bilateral hearing loss prior to January 5, 2017.

2. Entitlement to an initial rating in excess of 10 percent for bilateral hearing loss since January 5, 2017.  


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

N. Peden, Associate Counsel



INTRODUCTION

The Veteran had active service from June 1968 to March 1970, to include service in Vietnam.

This matter is before the Board of Veterans' Appeals (Board) on appeal from a May 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan, in which the RO granted service connection for bilateral hearing loss with an initial noncompensable rating. In April 2017, the RO granted an increased rating of 10 percent for bilateral hearing loss, effective January 5, 2017. In December 2016, the Board remanded this appeal for further development. That development has been accomplished, and the claim has now been returned to the Board for further action. Stegall v. West, 11 Vet. App. 268 (1998).


FINDINGS OF FACT

1. Prior to January 5, 2017, the Veteran had bilateral hearing loss manifested by average pure tone air conduction thresholds of no worse than 51 decibels in the right ear and 71 decibels in the left ear, and speech recognition ability (Maryland CNC test) of 92 percent in the right ear and 84 percent in the left ear.

2. Since January 5, 2017, the Veteran had bilateral hearing loss manifested by average pure tone air conduction thresholds of no worse than 62 decibels in the right ear and 75 decibels in the left ear, and speech recognition ability (Maryland CNC test) of 88 percent in the right ear and 76 percent in the left ear.

CONCLUSIONS OF LAW

1. Prior to January 5, 2017, 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. §§ 3.159, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100 (2017).

2. Since January 5, 2017, the criteria for a rating in excess of 10 percent for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Duties to Notify and Assist

VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). The duty to notify has been met. See VA correspondence dated September 2010. The Veteran has not alleged prejudice with regard to notice. "Absent extraordinary circumstances...it is appropriate for the Board...to address only those procedural arguments specifically raised by the veteran...." Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Thus, nothing more is required.

Regarding the duty to assist, all identified and authorized records relevant to the matter have been requested or obtained. The record includes available service treatment records, VA treatment and examination reports, and private medical treatment records. The Veteran has not identified any additional records that should be obtained prior to appellate consideration. The evidence of record is sufficient for the Board's review. The Board finds that there is no evidence of any additional existing pertinent records. Further attempts to obtain additional evidence would be futile. Therefore, VA's duty to further assist the Veteran in locating additional records has been satisfied. U.S.C. § 5103A; 38 C.F.R. § 3.159 (2017). 

When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. The VA medical opinions obtained in this case are adequate, as they are predicated on a substantial review of the record and medical findings and consider the Veteran's complaints and symptoms. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c)(4). The available medical evidence is sufficient for an adequate determination. There has been substantial compliance with all pertinent VA law and regulations, and to adjudicate the claim would not cause any prejudice to the appellant.

II. Analysis

Disability ratings are determined by applying the criteria established in VA's Schedule for Rating Disabilities, which is based upon the average impairment of earning capacity. Individual disabilities are assigned separate Diagnostic Codes. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.20 (2017). When a question arises as to which of two ratings applies under a particular Diagnostic Code, the higher evaluation is assigned if the disability more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2017). Consideration must be given to increased evaluations under other potentially applicable Diagnostic Codes. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). 

Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's entire history is to be considered when making a disability determination. 38 C.F.R. § 4.1 (2017); Schafrath, 1 Vet. App. 589.

Disability evaluations for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Examinations are conducted using the controlled speech discrimination tests (Maryland CNC) together with the results of the puretone audiometry test. See 38 C.F.R. § 4.85.

The results are then analyzed using tables contained in 38 C.F.R. § 4.85, DC 6100. "Puretone threshold average," as used in Tables VI and VIa, is the sum of the puretone thresholds at 1000, 2000, 3000 and 4000 Hertz, divided by four. This average is used in all cases to determine the Roman numeral designation for hearing impairment from Table VI or VIa. The appropriate rating is then determined by finding the intersection point for the two Roman numeral designations using Table VII.

For exceptional patterns of hearing impairment, 38 C.F.R. § 4.86  provides as follows: (a) 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. 

The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C. § 5107. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102 (2017). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the claimant. 38 C.F.R. § 4.3 (2017).

In this case, the Veteran's disability was evaluated as zero percent, or noncompensably, disabling prior to January 5, 2017, and as 10 percent disabling thereafter. He contends he is entitled to higher initial ratings for his bilateral hearing loss disability. 

The Veteran submitted a private audiology examination dated September 2010. The private record is in graph form and the results have not been interpreted by an audiologist. The Board may interpret the graphical representation contained in the audiogram into numerical results so as to appropriately rate the hearing disability. See Kelly v. Brown, 7 Vet. App. 471, 474 (1995). However, it is unclear whether the documented speech discrimination percentages in the September 2010 private audiological evaluation were obtained using Maryland CNC testing as required by regulation. See 38 C.F.R. § 4.85 (a) (2017). As such, this examination does not meet VA's requirements for an examination that can be used to rate hearing loss. For VA rating purposes, an examination for hearing impairment must meet the four requirements of 38 C.F.R. § 4.85 (a). Specifically, it must be conducted by a state-licensed audiologist, the examination must include a controlled speech discrimination test using the Maryland CNC word list, the examination must include a puretone audiometry test, and the examination must be conducted without the use of hearing aids. Significantly, the September 2010 private audiological examination does not include a controlled speech discrimination test using the Maryland CNC word list. As such, it is inadequate for rating purposes.

The Veteran underwent a VA audiology examination in April 2011 and the examiner's recorded pure tone thresholds, in decibels, at 500, 1000, 2000, 3000, and 4000 hertz (Hz) were as follows: 20, 25, 45, 65, 70 for the right ear, with an average of 51.25; and 30, 45, 70, 85, 85 for the left ear, with an average of 71.25. Speech recognition scores were 92 percent for the right ear and 84 percent for the left ear. As no exceptional pattern of hearing loss is reflected by the examination, Table VI is applicable, and reflects that the Veteran had Level I hearing loss in his right ear and Level III hearing loss in his left ear. Applying Level I for the right ear and Level III for the left ear results in a noncompensable disability rating. 38 C.F.R. § 4.85 (2017). During the examination, the audiologist described the functional effects of the Veteran's hearing loss on his daily activities. 38 C.F.R. § 4.10 (2017); see also Martinak v. Nicholson, 21 Vet. App. 447, 455-56 (2007). Specifically, the Veteran stated that he had trouble with the clarity of words, had difficulty understanding his wife's voice, and had difficulty understanding speech in the presence of background noise. 

The Veteran submitted another private audiology examination conducted January 2017. As noted above, the private record is in graph form, and the Board may interpret the graphical representation contained in the audiogram into numerical results so as to appropriately rate the hearing disability. See Kelly, 7 Vet. App. 471, 474. However, as with the previous private audiologic examination of record, it is unclear whether the documented speech discrimination percentages in the January 2017 private audiological evaluation were obtained using Maryland CNC testing as required by regulation. See 38 C.F.R. § 4.85 (a) (2017). Because this examination does not meet VA's requirements for an examination that can be used to rate hearing loss, it is also inadequate for rating purposes. 38 C.F.R. § 4.85 (a).

Finally, at a VA audiology examination on February 1, 2017, the examiner's recorded pure tone thresholds, in decibels, at 500, 1000, 2000, 3000, and 4000 hertz (Hz) were as follows: 20, 35, 70, 70, 75 for the right ear, with an average of 62.5; and 30, 50, 75, 85, 90 for the left ear, with an average of 75. Speech recognition scores were 88 percent for the right ear and 76 percent for the left ear. As no exceptional pattern of hearing loss is reflected by the examination, Table VI is applicable, and reflects that the Veteran had Level III hearing loss in his right ear and Level V hearing loss in his left ear. Applying Level III for the right ear and Level V for the left ear results in a 10 percent disability rating. 38 C.F.R. § 4.85 (2017). The Veteran reported functional effects of his hearing loss on daily activity to include that it was hard to understand people.  

To the extent that the Veteran contends that his hearing loss is more severe than currently evaluated, while he is competent to report symptoms such as difficulty understanding speech, 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 (training in evaluating hearing impairment) which he does not possess. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). While the Board is sympathetic to the Veteran's contention that he has difficulty hearing, especially when conversing with others, the VA rating criteria are definitive and provide for a precise result based on audiometric test results. His subjective report of difficulty hearing under situational circumstances 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.

After careful review of the evidence of record, the Board finds that an initial compensable rating for bilateral hearing loss is not warranted prior to January 5, 2017. The Board notes that the RO granted an increased rating of 10 percent effective January 5, 2017 and finds that since January 5, 2017, a rating in excess of 10 percent for bilateral hearing loss is not warranted, as the February 2017 examination shows that a 10 percent disability rating best reflects the Veteran's level of bilateral hearing loss under the relevant diagnostic criteria. There is no evidence of record to show that the criteria for higher ratings were met at any time during the appeal period.

ORDER

Prior to January 5, 2017, entitlement to an initial compensable rating for bilateral hearing loss is denied.

Since January 5, 2017, entitlement to a rating in excess of 10 percent for bilateral hearing loss is denied.  




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

Department of Veterans Affairs