Citation Nr: 1754587	
Decision Date: 11/29/17    Archive Date: 12/07/17

DOCKET NO.  16-28 310	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico


THE ISSUE

Entitlement to a rating in excess of 10 percent for a bilateral hearing loss disability.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

A.Spigelman, Associate Counsel


INTRODUCTION

The Veteran had active military service from October 1950 to September 1952.  

This case comes before the Board of Veterans' Appeals (Board) on appeal from a December 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan in the Commonwealth of Puerto Rico.  

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) (2012).


FINDING OF FACT

The Veteran's hearing impairment is no worse than a Level IV in the right ear and a Level V in the left ear.


CONCLUSION OF LAW

The criteria for a rating in excess of 10 percent for a bilateral hearing loss disability are not met.  38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.7, 4.85, Diagnostic Code 6100, 4.86 (2017).  


REASONS AND BASES FOR FINDING AND CONCLUSION

The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126) includes enhanced duties to notify and assist claimants for VA benefits.  VA regulations implementing the VCAA have been codified, as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2017).

In this case Board finds that all notification and development action needed to fairly adjudicate this claim has been accomplished.  The Board will therefore proceed to a determination in this case.  
The Veteran asserts that he should have a higher rating for his bilateral hearing loss disability, as the symptoms are worse than those contemplated by the currently assigned 10 percent rating.  

Disability ratings for hearing loss are derived from a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing.  Lendenman v. Principi, 3 Vet. App. 345 (1992).  The rating schedule establishes eleven auditory hearing acuity levels based on average puretone thresholds and speech discrimination.  38 C.F.R. § 4.85 (2017).  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 audiometric test.  Examinations will be conducted without the use of hearing aids.  38 C.F.R. § 4.85(a) (2017).  

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 percentage of speech discrimination and puretone threshold average intersect.  38 C.F.R. § 4.85(b), Table VI (2017).  

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 the puretone threshold average.  Table VIa will be used when the examiner certifies that the use of the speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, or when indicated under the provisions of § 4.86.  38 C.F.R. § 4.85(c), Table VIa (2017).  

Puretone threshold average, as used in Tables VI and VIa, is the sum of the puretone thresholds at 1,000, 2,000, 3,000, and 4,000 Hertz (Hz), divided by four.  That average is used in all cases, including those in § 4.86, to determine the Roman numeral designation for hearing impairment from Table VI or VIa.  38 C.F.R. § 4.85(d) (2017).  

When the puretone thresholds are all 55 decibels or more, or 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.  See 38 C.F.R. § 4.86 (2017).  

Table VII, Percentage Evaluations for Hearing Impairment, is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment of each ear.  The horizontal rows represent the ear having the better hearing and the vertical columns the ear having the poorer hearing.  The percentage evaluation is located at the point where the row and column intersect.  38 C.F.R. § 4.85(e) (2017). 

At a December 2015 VA audiology evaluation, the Veteran reported hearing loss that began in active service and had worsened since that time.  The examiner noted that the Veteran's bilateral hearing loss disability impacted his ability to work and perform ordinary activities of daily living.  The Veteran's audiometric testing results at that time were as follows:

Hertz
1000
2000
3000
4000
Average
Left Ear
55
55
55
60
56
Right Ear
40
50
60
50
50

Speech recognition ability was measured at 92 percent in the right ear and 96 percent in the left ear.  The examiner diagnosed sensorineural hearing loss in both the left and right ears.  Audiometric testing reveals that the left ear demonstrates an exceptional pattern of hearing impairment.  As such, applying the threshold value of the left ear to Table VIa results in a numeric designation of Level IV.  38 C.F.R. § 4.86, Table VIa (2017).  Audiometric testing reveals that the right ear does not demonstrate an exceptional pattern of hearing impairment.  38 C.F.R. § 4.86 (2017).  As such, applying the threshold value of the right ear to Table VI results in a numeric designation of Level I.  38 C.F.R. § 4.85, Table VI (2017).  Application of the levels of hearing impairment in each ear to Table VII produces a 0 percent rating.  38 C.F.R. § 4.85, Table VII (2017).  

In addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in the final report.  Martinak v. Nicholson, 21 Vet. App. 447 (2007).  The December 2015 VA examiner clearly identified the effects that the Veteran's bilateral hearing loss disability had on his daily activities, the effects on his occupation, and the effects on the Veteran's social interactions.  Therefore, the Board finds that the December 2015 VA examination report is in compliance with the requirements of Martinak.  

The Board notes that the Veteran has received treatment for his bilateral hearing loss disability at a VA Medical Center.  A review of the treatment notes of record reveals that in a November 2015 audiology consult, the Veteran's audiometric testing results were as follows:

Hertz
1000
2000
3000
4000
Average
Left Ear
50
55
60
70
58.75
Right Ear
50
55
65
60
57.5

Word recognition scores were measured at 76 percent in the right ear and 68 percent in the left ear.  Applying the threshold values to the rating criteria results in numeric designations of Level IV in the right ear and Level V in the left ear.  38 C.F.R. § 4.85, Table VI (2017).  Application of the levels of hearing impairment in each ear to Table VII at 38 C.F.R. § 4.85 produces a 10 percent rating.  38 C.F.R. § 4.85, Table VII (2017).  

The Veteran's bilateral hearing loss disability has not been shown to be worse than Level IV in the right ear and Level V in the left ear.  Those results fall within the schedular criteria for a 10 percent rating.  Therefore, the criteria for a rating in excess of 10 percent have not been met.  38 C.F.R. § 4.85, Diagnostic Code 6100 (2017). 

Consideration has also been given to assigning a staged rating.  However, at no time during the period in question has the disability warranted a higher schedular rating than the current 10 percent evaluation.  Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).  

Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record.  See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (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).

Accordingly, the Board finds that the preponderance of the evidence is against the claim and entitlement to a rating in excess of 10 percent for bilateral hearing loss disability is not warranted.  38 U.S.C. § 5107 (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 


ORDER

Entitlement to a rating in excess of 10 percent for a bilateral hearing loss disability is denied.  


____________________________________________
A. C. MACKENZIE
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs