Citation Nr: 1753840	
Decision Date: 11/24/17    Archive Date: 12/01/17

DOCKET NO.  15-07 332	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin


THE ISSUE

Entitlement to a disability rating in excess of 20 percent for a bilateral sensorineural hearing loss.


REPRESENTATION

Veteran represented by:	The American Legion


ATTORNEY FOR THE BOARD

B. Riordan, Associate Counsel


INTRODUCTION

The Veteran served on active duty in the U.S. Army from March 1951 to March 1953, to include service during the Korean Conflict. 
The Veteran's claims come before the Board of Veterans' Appeals (Board) on appeal from a September 2014 rating decision of the U.S. Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin.  

The Board notes in a June 2017 rating decision, the RO increased the Veteran's disability rating for his bilateral sensorineural hearing loss from 10 percent to 20 percent for the entire period on appeal.  As this increase did not represent a full grant of the benefits sought, the Veteran's appeal has not been abrogated and the matter remains in appellate status.  AB v. Brown, 6 Vet. App. 35, 38 (1993).  

The Board further notes the Veteran's claim previously included a claim for entitlement to additional special monthly compensation (SMC) based on the need for aid and attendance for the Veteran's spouse.  Entitlement to SMC was granted in April 2016. The Veteran was provided a VA Form 21-0958, Notice of Disagreement, and informed of the necessary steps to file a Notice of Disagreement.  A veteran may initiate an appeal to the Board from an unfavorable decision by the Secretary by filing a notice of disagreement.  38 U.S.C. § 7105(a) (West 2014).  The statute provides that the notice of disagreement "shall" be filed within one year of the mailing of notification of the unfavorable decision.  38 U.S.C. § 7105(b)(1).  The statute further provides that if the veteran does not file a notice of disagreement within the one-year period, the decision "shall become final."  Id.  

In a May 2016 correspondence, the Veteran notified the RO of his disagreement with the amount awarded for SMC.  However, the Veteran did not submit a VA Form 21-0958, Notice of Disagreement, and to date, has not submitted the required form to initiate his appeal.  Effective March 24, 2015, pursuant to 38 C.F.R. § 20.201(a)(1), for every case in which the Veteran is provided a form for purposes of initiating an appeal, a Notice of Disagreement consists of a completed and timely submitted copy of that form.  VA will not accept a Notice of Disagreement submitted on any other format if a form was provided to the Veteran with the adjudicative determination.  Id.  

In his February 2015 substantive appeal, the Veteran requested a hearing before the Board. In April 2015, the Veteran withdrew his request for a hearing; consequently, there remain no outstanding hearing requests of record.  38 C.F.R. § 20.704(e). 

This matter was previously before the Board in March 2017 but was remanded to the Agency of Original Jurisdiction (AOJ) for further development.  The requested development has been completed and the Veteran's appeal is now properly before the Board.   

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  38 U.S.C. § 7107(a)(2) (West 2014).


FINDING OF FACT

The Veteran's bilateral hearing loss manifests, at worst, by Level IV hearing impairment in the right ear, and Level V hearing impairment in the left ear.


CONCLUSION OF LAW

The criteria for an evaluation in excess of 20 percent for bilateral hearing loss have not been met.  38 U.S.C. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.85, Diagnostic Code 6100, 4.86 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

Duties to Notify and Assist

The record shows that the Veteran's claim was filed as a "fully-developed claim."  The fully developed claim form includes notice of the evidence needed to substantiate and complete a claim and of the respective duties of VA and the claimant for obtaining evidence.  Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).

VA must make reasonable efforts to assist the Veteran in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claims.  38 U.S.C. § 5103A; 38 C.F.R. § 3.159.

Service treatment records are associated with the claims file. All post-service treatment records identified by the Veteran have also been obtained by the VA.  The Veteran has not identified any additional records that should be obtained prior to a Board decision.  Therefore, VA's duty to further assist the Veteran in locating additional records has been satisfied.  The Veteran has been afforded a VA examination in connection with his claim.  See 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4).  The Board finds the April 2017 examination is adequate for purposes of determining severity of hearing loss as it involved a review of the Veteran's service medical records as well as clinical evaluations of the Veteran, and provide adequate discussions of the diagnoses provided.  See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007).  An August 2014 VA audiological examination was determined to be inadequate for rating purposes because the examiner was unable to obtain valid test scores for reasons that were unclear to the Board. 

This matter was previously before the Board in March 2017 but was remanded to the AOJ for further development.  Specifically, the AOJ was to schedule the Veteran for another VA audiological examination.  The required examination was completed in April 2017.  The Board finds there has been substantial compliance with the prior remand directives, and adjudication of the Veteran's claim may proceed.  See Stegall v. West, 11 Vet. App. 268, 271 (1998).The AOJ was further instructed to issue a statement of the (SOC) case regarding the Veteran's claim for entitlement to additional SMC based on the need for aid and attendance for the Veteran's spouse.  However, as discussed above, the AOJ determined the Veteran had not initiated an appeal for this claim because he had not submitted the required VA Form 21-0958, Notice of Disagreement.  Accordingly, the Veteran's claim was resolved by the April 2016 rating decision, and no SOC was required.  The Board recognizes this deviation from the remand directives, but finds that it is not such that a remand is required for correction.  See D'Aries v. Peake, 22 Vet. App. 97, 106 (2008).

In light of the foregoing, the Board is satisfied that all relevant facts have been adequately developed to the extent possible; no further assistance to the Veteran in developing the facts pertinent to the issue on appeal is required to comply with the duty to assist. 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159.

Analysis

Board decisions must be based on the entire record, with consideration of all the evidence.  38 U.S.C. § 7104.  The law requires only that the Board address its reasons for rejecting evidence favorable to the veteran.  Timberlake v. Gober, 14 Vet. App. 122 (2000).  The Board must review the entire record, but does not have to discuss each piece of evidence.  Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000).

Increased Rating 

Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity.  38 U.S.C. § 1155; 38 C.F.R. Part 4.  When a question arises as to which of two ratings apply under a particular Diagnostic Code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating.  38 C.F.R. § 4.7.  After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran.  38 C.F.R. § 4.3.  The veteran's entire history is reviewed when making disability evaluations.  38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995).

As in this case, where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern.  See Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  In evaluating hearing loss under the schedular criteria, disability ratings are derived by a mechanical application of the ratings schedule to the numeric designations assigned after audiometric evaluations are rendered.  See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992).  The ratings schedule provides a table for ratings purposes (Table VI) to determine a Roman numeral designation (I through XI) for hearing impairment.  Table VII is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment in both ears.  See 38 C.F.R. § 4.85.

When the pure tone threshold at each of the four specified frequencies (1,000, 2,000, 3,000, and 4,000 Hertz) is 55 decibels or more, Table VI or Table VIa is to be used, whichever results in the higher numeral.  Each ear will be evaluated separately.  38 C.F.R. § 4.86(a).  Additionally, when the pure tone threshold is 30 decibels or less at 1,000 Hertz, and 70 decibels or more at 2,000 Hertz, Table VI or Table VIa is to be used, whichever results in the higher numeral.  Thereafter, that numeral will be elevated to the next higher numeral.  38 C.F.R. § 4.86(b).

Entitlement to a Disability Evaluation in Excess of 20 Percent for Bilateral Hearing Loss Prior 

The Veteran was previously service connected for bilateral hearing loss and assigned a 10 percent disability evaluation effective June 2004.  In a May 2014 fully developed claim, the Veteran requested an increase to the disability rating of his service-connected hearing loss.  A June 2017 rating decision increased the Veteran's disability evaluation for bilateral hearing loss from 10 percent to 20 percent for the appeal period. 

At his April 2017 VA examination, the Veteran's pure tone thresholds, in decibels were as follows: 




HERTZ



1000
2000
3000
4000
Average
RIGHT
35
75
75
85
68
LEFT
30
75
70
85
65

Speech audiometry revealed speech recognition ability of 80 percent in the right ear and of 72 percent in the left ear.  The VA examiner noted in a June 2017 addendum opinion that these results indicated a significant decrease in the Veteran's hearing since prior audiological examinations in February 2011 and April 2011.

At the April 2017 examination, the Veteran reported significant difficulty hearing speech without hearing aids, which is a functional effect of his hearing loss on his daily activities.  Martinak v. Nicholson, 21 Vet. App. 447, 455-56 (2007).

Using average pure tone thresholds and speech recognition abilities, Table VI reveals the highest numeric designation of hearing impairment is IV for the right ear and V for the left ear.  See 38 C.F.R. § 4.85.  As noted above, when the pure tone threshold is 30 decibels or less at 1,000 Hertz, and 70 decibels or more at 2,000 Hertz, Table VI or Table VIa is to be used, whichever results in the higher numeral.  In the present case, the Veteran's left ear pure tone threshold at 1,000 Hertz is 30 decibels, and at 2,000 Hertz is 75 decibels.  This meets the criteria for an exceptional pattern of hearing impairment.  However, when using Table VIa, the Veteran's left ear hearing impairment remains at V.  Entering the category designations for each ear into Table VII results in a 10 percent disability evaluation under Diagnostic Code 6100 as opposed to the 20 percent criteria.  38 C.F.R. § 4.85.

The Board acknowledges the Veteran's contentions that his service-connected bilateral hearing loss warrants an increased evaluation.  The Veteran is capable of observing that his hearing loss has increased in severity.  The lay descriptions of the Veteran's symptoms are competent and credible.  However, in determining the actual degree of disability, an objective examination is more probative of the degree of the Veteran's impairment.  Furthermore, the opinions and observations of the Veteran cannot show that the rating criteria for a higher rating under 38 C.F.R. § 4.85 are met.  In this case, the Veteran in this case does not possess the level of training or expertise needed to determine whether he observed level of hearing loss is more accurately described by the 30 percent rating criteria.  

The Board finds that the most probative evidence of record does not support assigning a disability evaluation in excess of 20 percent for the Veteran's bilateral hearing loss during the appeal period.  

In June 2017, the RO granted a total disability rating based on individual unemployability (TDIU) effective April 11, 2017.  Prior to April 11, 2017, the medical and lay evidence of record did not suggest, nor did the Veteran contend, that his service-connected disabilities rendered him unemployable.  Therefore a TDIU prior to April 11, 2017 is not for consideration.  Rice v. Shinseki, 22 Vet. App. 447 (2009); see also Jackson v. Shinseki, 587 F.3d 1106 (Fed. Cir. 2009).


ORDER

Entitlement to a rating in excess of 20 percent for a bilateral sensorineural hearing loss is denied.



____________________________________________
D. Martz Ames
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs