Citation Nr: 1753815	
Decision Date: 11/24/17    Archive Date: 12/01/17

DOCKET NO.  13-34 127	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Wilmington, Delaware


THE ISSUE

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

(The issues of entitlement to service connection for a psychiatric disorder, to include as secondary to service-connected bilateral hearing loss and entitlement to service connection for a psychosis for the purpose of establishing eligibility for treatment pursuant to 38 U.S.C.A. § 1702, will be addressed in a separate decision.)


REPRESENTATION

Appellant represented by:	Vietnam Veterans of America


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

J.R. Bryant

INTRODUCTION

The Veteran served on active duty with the U.S. Army from February 1970 to November 1971.  This matter is before the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Offices (RO) in Wilmington, Delaware.  The Veteran testified at a videoconference Board hearing held in August 2016.  A transcript is of record.  

The Board notes, as reflected on the title page, that Veteran has also perfected appeals with respect to the issues of entitlement to service connection for a psychiatric disorder, to include as secondary to service-connected bilateral hearing loss and entitlement to service for a psychosis for the purpose of establishing eligibility for treatment pursuant to 38 U.S.C.A. § 1702, and that those matters are being adjudicated in a separate decision under the signature of the judge who conducted the hearing on those issues.  See 38 C.F.R §§ 19.3(a), 20.707 (2017); see also Arneson v Shinseki, 24 Vet App 379 (2011).


FINDING OF FACT

The Veteran's bilateral hearing loss disability was manifested by hearing acuity no worse than Level III in the right ear and Level III in the left ear.

CONCLUSION OF LAW

The criteria for a compensable disability rating for bilateral hearing loss are not met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code (DC) 6100 (2016).


REASONS AND BASES FOR FINDING AND CONCLUSION

Duties to Notify and Assist

VA provided the Veteran with 38 USCA § 5103(a)-compliant notice in letters dated March 9, 2010 and July 13, 2010.  

The record also shows that VA has fulfilled its obligation to assist the Veteran in developing the claim, including with respect to VA examination of the Veteran.  Neither the Veteran nor his representative has identified any deficiency in VA's notice or assistance duties.  Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).


Law and Analysis

The Veteran is seeking a compensable disability rating for his service-connected bilateral hearing loss.

Disability ratings are determined by comparing a veteran's present symptomatology with the criteria set forth in the VA Schedule for Rating Disabilities, which is based upon average impairment in earning capacity.  38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. Part 4 (2017).  When a question arises as to which of two ratings applies under a particular diagnostic code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  After careful consideration of the evidence, any reasonable doubt is resolved in favor of the Veteran.  38 C.F.R. § 4.3. 

The Veteran's entire history is considered when assigning disability ratings.  38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995).  A review of the recorded history of a disability is necessary in order to make an accurate rating.  38 C.F.R. §§ 4.2, 4.41 (2017).  The regulations do not give past medical reports precedence over current findings where such current findings are adequate and relevant to the rating issue.  Francisco v. Brown, 7 Vet. App. 55 (1994); Powell v. West, 13 Vet. App. 31 (1999).  The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal.  Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).

The Veteran's bilateral hearing loss disability is evaluated as noncompensably disabling under DC 6100.

Hearing loss is evaluated under DC 6100, which sets out the criteria for evaluating hearing impairment using puretone threshold averages and speech discrimination scores.  Numeric designations are assigned based upon a mechanical use of tables found in 38 C.F.R. § 4.85.  See Acevedo-Escobar v. West, 12 Vet. App. 9, 10 (1998); Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992).

Audiometric results are matched on Table VI to find the numeric designation.  Then, the designations are matched with Table VII to find the percentage evaluation to be assigned for the hearing impairment.  To evaluate the degree of disability for service-connected hearing loss, the Rating Schedule establishes 11 auditory acuity levels, designated from Level I for essentially normal acuity, through Level XI for profound deafness.  38 C.F.R. § 4.85. 

The provisions of section 4.86 address exceptional patterns of hearing loss which are identified when each of the puretone thresholds at 1000, 2000, 3000, and 4000 hertz (Hz) is 55 decibels or more, or when the puretone threshold is 30 decibels or less at 1000 Hz, and 70 decibels or more at 2000 Hz.  38 C.F.R. § 4.86.

Applying the regulations to the current facts, the Board finds that the criteria for a compensable disability rating are not met.  The record includes a VA audiological evaluation in May 2010, which shows pure tone thresholds, in decibels, as follows:







HERTZ



500
1000
2000
3000
4000
RIGHT
5
15
45
85
85
LEFT
5
15
50
55
75

The results of the audiogram show an average puretone threshold of 58 decibels in his right ear and 49 decibels in his left ear.  Speech discrimination ability was 96 percent in the right ear and 100 percent in the left ear.  Exceptional patterns of hearing impairment are not indicated.  The audiologist concluded the Veteran had moderately-severe sensorineural type hearing loss of the right ear and a moderate sensorineural type hearing loss of the left ear.  The functional impact of the hearing loss on the Veteran's usual occupational and daily activities was that he would have difficulty in face-to-face communications in a noisy background. He would also have more difficulty hearing women than men and more difficulty hearing children than women.  The Veteran would also have difficulty speaking on the phone.  

Using Table VI, these examination results revealed level I hearing in the right ear and level I hearing in the left ear.  Combining these levels according to Table VII results in a noncompensable (0%) evaluation.  See 38 C.F.R. § 4.85.  These audiological results also do not satisfy the criteria for a compensable rating due to an exceptional hearing loss pattern.  38 C.F.R. § 4.86.

Also of record are multiple lay statements from family, friends, and co-workers relating their observations of the Veteran's progressively worsening hearing loss and how it has impacted his ability to understand people unless he is facing them or carry on normal conversation as people often have to repeat themselves.  He also has a tendency to talk loudly because he has trouble hearing which causes problems in his relationships as people become frustrated and he becomes angry.  See VA Form 21-4138s dated March 16, 2010, May 10, 2010, and May 19, 2010.

When examined by VA in November 2014, pure tone thresholds, in decibels, were as follows:





HERTZ



500
1000
2000
3000
4000
RIGHT
15
25
60
90
105
LEFT
15
20
60
70
80

The results of the VA audiogram show an average puretone threshold of 70 decibels for the right ear and 58 decibels for the left.  Speech audiometry revealed speech recognition ability of 84 percent for both ears.  The Veteran reported that the functional impact of his hearing loss on his usual occupational and daily activities was increasing "problems understanding."  

Using Table VI, these findings reveal level III hearing in the right ear and level III hearing in the left ear.  Combining these levels according to Table VII continues to result in a 0 percent evaluation.  See 38 C.F.R. § 4.85.  These audiological results also do not satisfy the criteria for a compensable rating due to an exceptional hearing loss pattern.  38 C.F.R. § 4.86.

In this case, the Veteran is entitled to a compensable disability rating for his bilateral hearing loss at any time during the appeal period, based on the audiometric data of record.  In reaching this conclusion, the Board sympathizes with his complaints regarding the functional impact of his hearing loss on his daily life, and has read and carefully considered the multiple lay statements from friends and family in this regard.  The Board has also not overlooked the Veteran's primary contention that his hearing loss is debilitating at a far greater percentage than 0 percent or VA's obligation to resolve all reasonable doubt in his favor.

However despite the general quality of life problems the Veteran has described, his hearing loss disability is evaluated on the objective findings demonstrated during audiological examination.  The fact that his hearing acuity is less than optimal does not, by itself, establish entitlement to a higher disability rating.  Rather, it is clear from the Rating Schedule that higher ratings can be awarded only when loss of hearing has reached a specified measurable level.  That level of disability has not been demonstrated in the present case.  The assignment of disability ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered.  Lendenmann, supra.

The Board has also considered that the Veteran has not been afforded VA examination of his hearing loss since 2014, but finds that the medical evidence of record in this case is not too old to adequately evaluate this disability. See Palczewski v. Nicholson, 21 Vet. App. 174 (2007) (another VA examination is not warranted based on the mere passage of time).  The Court noted that a factor to consider was whether the submission or identification of additional lay or medical evidence raised the question of whether the medical evidence of record was sufficient to render a decision on the claim.  In this case, no competent medical evidence, by or on behalf of the Veteran, has been submitted which suggests that his service-connected hearing loss, has become worse in the period of time since the last evaluation.  

Given the lack of pertinent clinical findings since the November 2014 VA examination and the fact that the history provided by the Veteran during that examination, and considered by the examiner, is consistent with that reflected in the record, the examiner's report (which reflects not only the Veteran's history, but complaints, clinical findings and diagnoses) is sufficient for rating purposes.  38 C.F.R. § 4.2 (2017); Abernathy v. Principi, 3 Vet.App. 461 (1992).  Consequently a new VA examination to rate the severity of his service-connected hearing loss is not warranted.

Accordingly, the Veteran's impairment due to his bilateral hearing loss is most consistent with a noncompensable evaluation and that the level of disability contemplated in DC 6100 to support the assignment of a 10 percent disability rating or higher is absent.





(Continued on the next page)
ORDER

A compensable disability rating for bilateral hearing loss is denied.




____________________________________________
Thomas H. O'Shay 
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs