Citation Nr: 1753896	
Decision Date: 11/24/17    Archive Date: 12/01/17

DOCKET NO.  14-08 339	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Louis, Missouri


THE ISSUE

Entitlement to an initial compensable rating for left ear hearing loss.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

L. Leifert, Associate Counsel


INTRODUCTION

The Veteran served on active duty from July 1989 to January 1988, and from May 2010 to April 2011.

This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, which granted service connection for left ear hearing loss, assigning a noncompensable rating effective April 23, 2011.

The Veteran was scheduled to appear for a personal hearing to present testimony in support of his case in August 2014, but canceled his request for a hearing in writing before it took place.  He has not asked that it be rescheduled, and his request is considered withdrawn.

In September 2015, the Board remanded the claim for a new VA examination to determine the severity of the Veteran's hearing loss.  In March 2016, the Veteran underwent a new VA examination with an audiologist, which, for the reasons indicated below, was adequate.  Thus, there has been compliance with the Board's remand instructions.  See Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting that where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). 


FINDING OF FACT

The Veteran demonstrated, at worst, level I hearing acuity in his left ear.


CONCLUSION OF LAW

The criteria for a compensable rating for left ear hearing loss have not been met.  38 U.S.C. §§ 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.321, 4.3, 4.7, 4.85, Diagnostic Code (DC) 6100 (2017).





REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Duties to Notify and Assist

Neither the Veteran nor his representative has raised any issues with regard to 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).

II.  Increased Initial Rating

Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity.  38 U.S.C.A. § 1155; 38 C.F.R. Part 4.  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 rating.  Otherwise, the lower rating will be assigned.  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.  See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  Where the question for consideration is the propriety of the initial evaluation assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of a "staged rating" (assignment of different ratings for distinct periods of time, based on the facts found) is required.  See Fenderson v. West, 12 Vet. App. 119, 126 (1999).

Hearing loss is evaluated under 38 C.F.R. §§ 4.85, 4.86, DC 6100, Tables VI, VIA, and VII of VA's rating schedule.  The Rating Schedule provides a table for rating purposes (Table VI) to determine a Roman numeral designation (I through XI) for hearing impairment, established by a state-licensed audiologist, including a controlled speech discrimination test (Maryland CNC), and based upon a combination of the percent of speech discrimination and the puretone threshold average, which is the sum of the puretone thresholds at 1000, 2000, 3000, and 4000 Hertz divided by four.  38 C.F.R. § 4.85.  Table VII is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment of each ear.  The horizontal row represents the ear having the poorer hearing and the vertical column represents the ear having the better hearing.  Id.  If impaired hearing is service-connected in only one ear, the nonservice-connected ear is a Roman numeral designation of I.  38 C.F.R. § 4.85(f).

There are certain exceptional patterns of hearing impairment.  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.  Each ear will be evaluated separately.  38 C.F.R. § 4.86(a) (2017).  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.  38 C.F.R. § 4.86(b) (2017).

In the present case, the Veteran contends that he should receive a compensable rating for his left ear hearing loss.

A March 2011 in-service deployment audiogram reflects puretone thresholds, in decibels, as follows:



HERTZ



1000
2000
3000
4000
LEFT
5
20
45
50

Puretone average was 30 decibels for the left ear.  The examination did not include a speech recognition ability test.  As such, the Board finds that the evaluation is inadequate for VA rating purposes.  In this regard, the Board notes that clarification of private medical reports is required only when "a private medical report is the only evidence on a material issue, and material medical evidence can no longer be obtained as to that issue, yet clarification of a relevant, objective fact would render the private medical report competent for the assignment of weight."  Carter v. Shinseki, 26 Vet. App. 534, 545 (2014), vacated on other grounds by Carter v. McDonald, 794 F.3d 1342 (Fed. Cir. 2015) (citing Savage v. Shinseki, 24 Vet.App. 259, 267-70 (2011)); Savage, 24 Vet.App. at 270 (specifically limiting this duty to situations where "the missing information is relevant, factual, and objective-that is, not a matter of opinion" but also noting that, when it is applicable, the duty to clarify "includes medical examination reports of all kinds").  As shown below, that is not the case here.

At his March 2012 VA examination, puretone thresholds, in decibels, were as follows:



HERTZ



1000
2000
3000
4000
LEFT
5
15
30
45

Puretone average was 24 decibels for the left ear, and speech audiometry revealed speech recognition ability of 100 percent in the left ear.  The Veteran reported that his hearing loss did not impact his activities of daily living or ability to work.  Based on those results with the utilization of Table VI, the Veteran demonstrated Level I hearing impairment in the left ear.  38 C.F.R. § 4.85(f).  Applying the results to Table VII, a noncompensable disability rating is warranted for hearing loss.  See 38 C.F.R. § 4.85, DC 6100.  

In his April 2013 notice of disagreement, the Veteran reported that his hearing loss caused him discomfort and was becoming progressively more debilitating.  He explained that for several months now he had trouble hearing in crowds or even in small gatherings, and that he experienced a "feeling of fullness in [his] left ear."  In his March 2014 substantive appeal, the Veteran reported that he could not hear in crowds, while watching television, or while speaking on the phone.

A May 2014 audiogram from the National Guards reflects puretone thresholds, in decibels, as follows:



HERTZ



1000
2000
3000
4000
LEFT
5
30
60
60

Puretone average was 38.75 decibels for the left ear.  The examination did not include a speech recognition ability test.  As such, the Board finds that the evaluation is inadequate for VA rating purposes.  

At his March 2016 VA examination, puretone thresholds, in decibels, were as follows:



HERTZ



1000
2000
3000
4000
LEFT
10
15
40
50

Puretone average was 29 decibels for the left ear, and speech audiometry revealed speech recognition ability of 98 percent in the left ear.  The Veteran reported that he had difficulty understanding conversations, particularly from the left side.  Based on those results with the utilization of Table VI, the Veteran demonstrated Level I hearing impairment in the left ear.  38 C.F.R. § 4.85(f).  Applying the results to Table VII, a noncompensable disability rating is warranted for hearing loss.  See 38 C.F.R. § 4.85, DC 6100.  

At his May 2016 VA examination, puretone thresholds, in decibels, were as follows:



HERTZ



1000
2000
3000
4000
LEFT
10
15
40
50

Puretone average was 29 decibels for the left ear, and speech audiometry revealed speech recognition ability of 98 percent in the left ear.  The Veteran reported that he had difficulty understanding conversations, particularly from the left side.  Based on those results with the utilization of Table VI, the Veteran demonstrated Level I hearing impairment in the left ear.  38 C.F.R. § 4.85(f).  Applying the results to Table VII, a noncompensable disability rating is warranted for hearing loss.  See 38 C.F.R. § 4.85, DC 6100.  In addition, in a May 2016 VA examination report, the VA examiner stated that the Veteran felt "at this time that the fullness had subsided and [was] no longer an issue."  He reported that his main concern was his tinnitus.

The Board notes that the VA audiological examination reports noted above describe the effects of the Veteran's hearing impairments on his daily life, consistent with the requirements of Martinak v. Nicholson, 21 Vet. App. 447 (2007).

The Veteran contends that his current left ear hearing loss presented a greater degree of impairment than currently assigned, and that the objective evidence contain within the record supported a 10 percent disability rating.  However, the assigned rating for hearing loss is determined by mechanically applying the rating criteria to certified test results.  See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992).  While the Board acknowledges the Veteran's hearing difficulties, the rating criteria dictates a noncompensable disability rating based on his certified test results.  As the March 2012, March 2016, and May 2016 VA examinations all resulted in a noncompensable rating for bilateral hearing loss, a compensable rating is not warranted for a left ear hearing loss.

In addition, while the Veteran reported a "feeling of fullness" in April 2013, in May 2016 he stated that the feeling had subsided.  Moreover, regarding the Veteran's complaints of difficulty hearing in crowds, while watching television, or while speaking on the phone are manifestations of difficulty hearing or understanding speech, which are contemplated by the schedular criteria for hearing loss.  Doucette v. Shulkin, 28 Vet. App. 366, 371-72 (2017) (difficulty in distinguishing sounds in a crowded environment, locating the source of sounds, understanding conversational speech, hearing the television, and using the telephone are each a manifestation of difficulty hearing or understanding speech, which are contemplated by the schedular rating criteria for hearing loss).  Thus, remand for referral of the claim for extraschedular consideration is not warranted.  Thun v. Peake, 22 Vet. App. 111 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009).  

The Board has considered the Veteran's claim and decided entitlement based on the evidence.  Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record, with respect to his claim.  See Doucette, 28 Vet. App. at 369-70 (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record)."

As such, an initial compensable rating for left ear hearing loss is not warranted.  38 C.F.R. § 4.85, DC 6100.  As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application.  38 U.S.C. § 5107(b); 38 C.F.R. § 4.3.


ORDER

Entitlement to an initial compensable rating for left ear hearing loss is denied.




____________________________________________
Jonathan Hager
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs