Citation Nr: 1754711	
Decision Date: 11/29/17    Archive Date: 12/07/17

DOCKET NO.  10-03 865	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Oakland, California


THE ISSUE

Entitlement to an initial compensable rating for bilateral hearing loss.


REPRESENTATION

Veteran represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

Ashley Castillo, Associate Counsel


INTRODUCTION

The Veteran served on active duty from May 1986 to May 1991 and from May 2005 to January 2007. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California.  In the May 2009 rating decision, the RO granted service connection for left ear hearing loss and assigned a noncompensable disability rating, effective January 17, 2008, and denied service connection for right ear hearing loss.  The Veteran timely disagreed with the initial rating and the denial of the service connection claim. 

The Board notes that in April 2016, the Board remanded the issue of entitlement to an initial compensable rating for bilateral hearing loss to afford the Veteran a Board hearing.  At that time, the Veteran was not service-connected for right ear hearing loss.  

In August 2016, the Veteran presented sworn testimony during a Board hearing before the undersigned Veterans Law Judge.  A transcript of the hearing has been associated with the claims file.

Although, the May 2009 rating decision did not discuss whether there was new and material evidence to reopen the Veteran's previously denied claim of service connection for right ear hearing loss, the Board has a jurisdictional responsibility to consider whether it was proper for a claim to be reopened.  Therefore, in February 2017, the Board, in pertinent part, reopened the previously denied claim for service connection for right ear hearing loss, granted the claim on the merits, and remanded the claim of entitlement to an initial compensable rating for bilateral hearing loss for further evidentiary development.  

In a February 2017 rating decision, the RO assigned a noncompensable disability rating, effective January 17, 2008, the date of the Veteran's claim.

In September 2017, the RO issued a rating decision granting service connection for peripheral vestibular disorder (claimed as Meniere's disease) and assigned a 10 percent disability rating, which had previously been on appeal after being denied by the RO's November 2009 rating decision.  As the Veteran has not appealed either the evaluation or effective date assigned to this disability, this matter is not before the Board.  See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997).


FINDING OF FACT

Throughout the appeal period, the Veteran's right ear hearing loss was productive of no worse than level I hearing impairment and his left ear hearing loss was productive of no worse than level I hearing impairment.


CONCLUSION OF LAW

The criteria for an initial compensable rating for bilateral hearing loss are not met.  38 U.S.C §§ 1155, 5107(b); 38 C.F.R. §§ 3.321(b), 4.1, 4.2, 4.7, 4.10, 4.21, 4.85, 4.86, Diagnostic Code 6100 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Duties to Notify and Assist

The Board finds that VA has satisfied the duties to notify and assist, as required by the Veterans Claims Assistance Act of 2000.  See 38 U.S.C. §§ 5103, 5103A (West 2012); 38 C.F.R. § 3.159 (2017).  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.  Higher Initial Rating

Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Rating Schedule.  38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10.  If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned.  38 C.F.R. § 4.7.
	
In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991).  Where, as here, entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern.  Francisco v. Brown, 7 Vet. App. 55 (1994).  Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings.  Hart v. Mansfield, 21 Vet. App. 505, 510 (2007).

VA disability compensation for impaired hearing is derived from the application in sequence of two main tables.  See 38 C.F.R. § 4.85; Table VI; and Table VII (also Diagnostic Code 6100).  Table VI correlates the average pure tone threshold (derived from the sum of the 1000, 2000, 3000, and 4000 Hertz thresholds divided by four) with the ability to discriminate speech, providing a Roman numeral to represent the correlation.  The table is applied separately for each ear to derive the values used in Table VII.  Table VII is used to determine the disability rating based on the relationship between the values for each ear derived from Table VI.  See 38 C.F.R. § 4.85.

Table VII is subject to 38 C.F.R. § 3.383 (2017).  Section 3.383 pertains to special consideration for paired organs.  Compensation is payable for certain combinations of service-connected and non-service-connected disabilities as if both disabilities were service connected, provided the non-service-connected disability is not the result of the Veteran's own willful misconduct.  38 C.F.R. § 3.383(a).  The provision applies when hearing impairment in one ear is compensable to a degree of 10 percent or more as a result of service-connected disability and hearing impairment as a result of non-service-connected disability meets the provisions of § 3.385 in the other ear.  38 C.F.R. § 3.383(a)(3).

There are provisions in the rating schedule allowing special consideration to cases of exceptional patterns of hearing impairment.  This occurs when there are pure tone thresholds of 55 decibels or more in each of the specified frequencies or when the pure tone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz.  See 38 C.F.R. § 4.86 (2017).  In such cases, the rating specialist is to 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.  Id.

The assignment of a rating for hearing loss is achieved by a mechanical application of the rating schedule to the numeric designations assigned after audiometric valuations are rendered.  Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992).  However, in Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007), the Court held that in addition to dictating objective test results in a VA audiology examination, a VA audiologist should describe the functional effects caused by a hearing disability in his or her final report.

Here, the Veteran seeks a compensable disability rating for his service-connected bilateral hearing loss.  As explained in the law and regulations section above, the resolution of this issue involves determining the levels of hearing acuity.
In a November 2008 VA audiology consultation audiometric testing revealed the following pure tone thresholds, in decibels:





HERTZ



1000
2000
3000
4000
Average
RIGHT
20
20
25
35
25
LEFT
20
25
35
40
30

Speech recognition ability was measured at 100 percent in each ear.  
This translates to level I hearing impairment in the right ear and level I hearing impairment in the left ear.  38 C.F.R. § 4.85, Table VI.  Intersecting level I and level I under Table VII results in a 0 percent rating under the applicable criteria.  38 C.F.R. 4.85, DC 6100.

In a July 2010 VA audiology consultation audiometric testing revealed the following pure tone thresholds, in decibels:




HERTZ



1000
2000
3000
4000
Average
RIGHT
30
30
35
40
34
LEFT
35
40
45
50
43

Speech recognition ability was measured at 100 percent in the right ear and 92 percent in the left ear.  This translates to level I hearing impairment in the right ear and a level I hearing impairment in the left ear.  Intersecting level I and level I under Table VII results in a 0 percent rating under the applicable criteria.  38 C.F.R. 4.85, DC 6100.

In a May 2015 audiology examination, audiometric testing revealed the following pure tone thresholds, in decibels:




HERTZ



1000
2000
3000
4000
Average
RIGHT
30
35
35
40
35
LEFT
30
30
35
40
34

Speech recognition ability was measured at 92 percent in each ear.  With respect to functional impairment, the Veteran reported that he has difficulty communicating with others.

This translates to level I hearing impairment in the right ear and a level I hearing impairment in the left ear.  Intersecting level I and level I under Table VII results in a 0 percent rating under the applicable criteria.  38 C.F.R. 4.85, DC 6100.

In a June 2017 audiology examination, audiometric testing revealed the following pure tone thresholds, in decibels:





HERTZ



1000
2000
3000
4000
Average
RIGHT
5
5
15
15
10
LEFT
10
10
25
25
13

Speech recognition ability was measured at 100 percent in the right ear and 98 percent in the left ear.  With respect to functional impairment, he reported that his bilateral hearing loss interferes with his ability to speak, watch television, and hear traffic.  The Veteran reported that his since his military service, he has been employed in a retail business.

This translates to level I hearing impairment in the right ear and a level I hearing impairment in the left ear.  Intersecting level I and level I under Table VII results in a 0 percent rating under the applicable criteria.  38 C.F.R. 4.85, DC 6100.  

Accordingly, the Board finds that the evidence of record demonstrates the Veteran's bilateral hearing loss warrants no more than a noncompensable evaluation based upon the pertinent diagnostic criteria from the date of service connection.  38 C.F.R. §§ 4.7, 4.385 (2017).

In this regard, the Board in no way discounts the difficulties that the Veteran experiences as a result of his bilateral hearing loss.  However, the disability ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designation assigned after audiometry results are obtained.  Hence, the Board must base its determination on the results of the pertinent VA audiology studies.  See Lendenmann, 3. Vet. App. at 345.  In other words, the Board is bound by law to apply VA's rating schedule based on the Veteran's audiometry results.  See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.  Based on the application of the criteria to the audiometric findings above, the Board finds that the record presents no basis for assignment of a compensable disability rating for the Veteran's bilateral hearing loss.

In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine.  However, given the mechanical method in which ratings for hearing loss are derived, that doctrine is not applicable.  See 38 U.S.C.A. § 5107 (b); 38 C.F.R. §§ 3.102, 41.3; Gilbert,1 Vet. App. at 55-56.

In addition, in Martinak v. Nicholson, 21 Vet. App. 447 (2007) the Court addressed a challenge to VA's audiological testing practices, specifically, whether VA's policy of conducting all audiometry testing of hearing-loss claimants in a sound-controlled room was valid.  The Court also addressed the requirements for an adequate VA audiological examination report.  The Court upheld VA's policy of conducting audiometry testing in a sound controlled room.  The Court also held that, in addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in his or her final report.  During VA examinations, the Veteran reported that he has difficulty communicating with others, and interferes with his ability to speak, watch television, and hearing traffic.  This was sufficient to comply with Martinak.

In exceptional cases an extraschedular rating may be provided.  38 C.F.R. § 3.321.  The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a veteran is entitled to an extraschedular rating:  (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extraschedular disability rating must be in the interest of justice.  Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009).  Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability.

The Board finds that the rating criteria contemplate the Veteran's bilateral hearing loss disability.  The Veteran's hearing loss is manifested by difficulty communicating with others, watching television, and hearing traffic, and interferes with his ability to speak.  These are all manifestations of difficulty hearing or understanding speech, which is contemplated by the schedular rating criteria for hearing loss.  Cf. 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 is contemplated by the schedular rating criteria for hearing loss).  As the criteria contemplate the symptoms, the assigned schedular noncompensable evaluation is adequate and no referral is required.

Additionally, a request for an entitlement to a total disability rating based on individual unemployability (TDIU), whether expressly raised by a veteran or reasonably raised by the record, is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability as part of a claim for increased compensation.  Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009).  In other words, if the claimant or the evidence of record reasonably raises the question of whether a veteran is unemployable due to a disability for which an increased rating is sought, then part and parcel with the increased rating claim is the issue of whether a TDIU is warranted as a result of that disability.  Id.  Here, in this case, the Veteran was awarded entitlement to a TDIU effective January 17, 2008.  Regarding the period prior to the TDIU, the issue has not been argued by the Veteran or reasonably raised by the evidence of record.

In Johnson v. McDonald, 762 F.3d 1362, 1365-66 (Fed. Cir. 2014), the Federal Circuit held that "[t]he plain language of § 3.321(b)(1) provides for referral for extra-schedular consideration based on the collective impact of multiple disabilities."  In this case, entitlement to a TDIU has been granted.  The Federal Circuit in Johnson indicated that the TDIU provision only accounts for instances in which a veteran's combined disabilities establish total unemployability, i.e., a disability rating of 100 percent.  Id. at 1366.  On the other hand, 38 C.F.R. § 3.321(b)(1) performs a "gap-filling" function.  Id.  It accounts for situations in which a veteran's overall disability picture establishes something less than total unemployability, but where the collective impact of a veteran's disabilities are nonetheless inadequately represented.  Id.  As the Veteran has been granted TDIU, he is deemed to have total unemployability and there is no "gap" to fill by § 3.321(b).  Further discussion of an extraschedular rating based on the collective impact of multiple disabilities is therefore not warranted in this case.


ORDER

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



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



Department of Veterans Affairs