Citation Nr: 1754952	
Decision Date: 11/30/17    Archive Date: 12/07/17

DOCKET NO.  12-29 710	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Boston, Massachusetts


THE ISSUE

Entitlement to an initial compensable evaluation from January 4, 2010, to September 7, 2017, and an evaluation in excess of 10 percent since September 8, 2017, for bilateral hearing loss.


ATTORNEY FOR THE BOARD

S. Anwar, Associate Counsel


INTRODUCTION

The Veteran had active service from July 1984 to July 1988; January 2004 to August 2004; and from July 2005 to January 2008.

This matter comes before the Board of Veterans' Appeals (Board) from an April 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts.
During the pendency of the appeal, a September 2017 rating decision increased the rating for the Veteran's bilateral hearing loss disability to 10 percent effective September 8, 2017, the date of the most recent VA medical examination. Since this evaluation is not the maximum available benefit and the claimant has not withdrawn the appeal, the issue remains in appeal status. See AB v. Brown, 6 Vet. App. 35, 38 (1993) (where a claimant has filed a NOD as to an RO decision assigning a particular rating, a subsequent RO decision assigning a higher rating, but less than the maximum available benefit, does not abrogate the pending appeal). 

Pursuant to VA's duties to notify and assist the Veteran, VA advised the claimant how to substantiate an application for benefits, obtained all relevant and available evidence, and conducted any appropriate medical inquiry. The appeal is ready for appellate review. This appeal was processed using the Virtual VA and Veterans Benefits Management System (VBMS) paperless claims processing system.


FINDINGS OF FACT

1. From January 4, 2010, to September 7, 2017, the Veteran's bilateral hearing loss manifested with 40 to 50 average pure tone decibel hearing loss and 90 percent speech discrimination for the left ear; and 30 to 45 average pure tone decibel hearing loss and 92 percent speech discrimination for the right ear.

2. Since September 8, 2017, the Veteran's bilateral hearing loss manifested with 54 average pure tone decibel hearing loss and 74 percent speech discrimination in the left ear; and 49 average pure tone decibel hearing loss and 76 percent speech discrimination in the right ear.


CONCLUSIONS OF LAW

1. The criteria for a compensable rating for bilateral hearing loss from January 4, 2010 to September 7, 2017, have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.321, 4.85, 4.86, 4.87a, Diagnostic Code 6100 (2016).  

3. The criteria for a rating in excess of 10 percent for bilateral hearing loss since September 8, 2017, have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.321, 4.85, 4.86, 4.87a, Diagnostic Code 6100 (2016).  


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Disability ratings are determined by applying criteria set forth in VA's Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations should be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7.

For claims for increased ratings which arise out of an initial grant of service connection, the Board must consider the application of "staged" ratings for different periods from the filing of the claim forward, if the evidence suggests that such a rating would be appropriate. See Fenderson v. West, 12 Vet. App. 119 (1999).

The Rating Schedule provides rating tables for the evaluation of hearing impairment. Table VI assigns a Roman numeral designation (I through XI) for hearing impairment based on the pure tone threshold average and controlled speech discrimination (Maryland CNC) testing. Table VIa assigns a Roman numeral designation for hearing impairment based only on the pure tone threshold average, and is used when speech discrimination testing is not appropriate or when indicated under the provisions of 38 C.F.R. § 4.86, which relate to exceptional patterns of hearing impairment. The "pure tone threshold average" is the sum of the pure tone thresholds at 1000, 2000, 3000, and 4000 Hertz, divided by four. 38 C.F.R. § 4.85 (d). Table VII is used to determine the rating assigned by combining the Roman numeral designations for hearing impairment of each ear. 38 C.F.R. § 4.85 (e). 

Exceptional patterns of hearing impairment are provided for in 38 C.F.R. § 4.86. When the pure tone 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 is evaluated separately. 38 C.F.R. § 4.86 (a). 

Ratings for hearing impairment are derived by the mechanical application of the Rating Schedule to the numeric designations assigned after audiometric evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345 (1992). However, in addition to providing objective test results, a VA audiological examination report must address the functional effects caused by a hearing disability because an extraschedular rating under 38 C.F.R. § 3.321 (b) "does not rely exclusively on objective test results to determine whether a referral for an extraschedular rating is warranted." Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). VA's policy requiring VA audiologists to describe the effect of a hearing disability on occupational functioning and daily activities facilitates extraschedular determinations. Id. 

The Veteran underwent three audiological evaluations during the appellate period. 

At the February 2010 VA audiological evaluation, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
20
15
15
30
60
LEFT
15
20
20
50
70

Speech audiometry revealed speech recognition ability of 92 percent in the right ear and of 90 in the left ear using the Maryland CNC speech discrimination test. The average pure tone thresholds of 1000, 2000, 3000, 4000 Hz, rounded to the nearest whole number, were 30 for the right ear and 40 for the left ear. He was assessed with mild to moderate sensorineural hearing loss in the right ear and moderate to severe sensorineural hearing loss in the left ear. The examiner noted the functional effects of the Veteran's hearing loss included difficulty with consonant sounds in speech communication, resulting in difficulty hearing words clearly in noisy environments. 

At the June 2010 audiological evaluation conducted by the Department of the Army Reserve Health Readiness Program, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
40
30
30
55
65
LEFT
45
40
35
60
65

Speech audiometry testing reveals a raw score of 142 out of 200 using the Speech Recognition in Noise Test (SPRINT), which is not adequate for rating purposes. The average pure tone thresholds of 1000, 2000, 3000, 4000 Hz, rounded to the nearest whole number, were 45 for the right ear and 50 for the left ear. He was assessed with bilateral sensorineural hearing loss. The examiner did not note functional effects of the Veteran's hearing loss disability. 

At the September 2017 VA audiological evaluation, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
40
40
40
50
65
LEFT
40
40
40
60
75

Speech audiometry revealed speech recognition ability of 76 percent in the right ear and of 74 in the left ear using the Maryland CNC speech discrimination test. The average pure tone thresholds of 1000, 2000, 3000, 4000 Hz, rounded to the nearest whole number, were 49 for the right ear and 54 for the left ear. He was assessed with bilateral sensorineural hearing loss. The examiner noted the functional effects of the Veteran's hearing loss included making efforts to control the environmental settings when conversing, such as sitting on the carpet, conversing away from the television, and seeing the speaker's face.  

The evidence does not support a finding of "exceptional" hearing loss in the current case. Specifically, the defined regulatory "exceptional" patterns (pure tone threshold at 1000, 2000, 3000, and 4000 Hertz is 55 decibels or more, or when the pure tone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz) are not found in this case.  See 38 C.F.R. § 4.86. 

As "exceptional" hearing loss does not exist, it is necessary to apply the criteria found in 38 C.F.R. 4.87 at Table VI to the Veteran's audiological examinations of record. With regards to the February 2010 examination, the results yield a numerical designation of I for the right ear (between 0 and 41 average pure tone decibel hearing loss, with between 92 and 100 percent speech discrimination), and a numerical designation of II for the left ear (between 0 and 41 average pure tone decibel hearing loss, with between 84 and 90 percent speech discrimination).  Entering the category designations for each ear into Table VII results in a noncompensable disability evaluation. 

With regards to the June 2010 examination, because the examiner used the SPRINT speech discrimination test and not the Maryland CNC test, only the numeric designation based on pure tone threshold averages in Table VIa can be used to determine the percentage of hearing impairment. Using only pure tone average results yield a numerical designation of II for the right ear (between 42 and 48 average pure tone decibel hearing loss) and a numerical designation of III for the left ear (between 49 and 55 average pure tone decibel hearing loss). Entering the category designations for each ear into Table VII results in a noncompensable disability rating.

With regards to the September 2017 examination, the results yield a numerical designation of III for the right ear (between 42 and 49 average pure tone decibel hearing loss, with between 76 and 82 percent speech discrimination), and a numerical designation of V for the left ear (between 50 and 57 average pure tone decibel hearing loss, with between 68 and 74 percent speech discrimination).  Entering the category designations for each ear into Table VII results in a 10 percent disability evaluation. 

The preponderance of the evidence is against finding a compensable rating for the Veteran's bilateral hearing loss prior to September 8, 2017, and for finding a rating in excess of 10 percent thereafter. The results of the Veteran's three audiological examinations are probative and valid for rating purposes, and reflect the severity of the Veteran's bilateral hearing loss at the time.

The Board has considered the Veteran's report that he was administered the Maryland CNC speech discrimination test at his June 2010 audiological examination conducted by the Department of the Army and that the examiner indicated the Veteran's bilateral hearing loss warranted a 10 percent evaluation. The RO confirmed that the June 2010 examination records were destroyed by the provider. However, to the extent that the Veteran reports a greater severity of his hearing disorder, his contention is without merit. 

In determining the probative value of evidence, the Board must determine its relevance, competence and credibility, including lay statements. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). In the evaluation of evidence, VA adjudicators may properly consider internal inconsistency, facial plausibility and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet.App. 498 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table). However, the Board has the authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence. Madden v. Brown, 125 F. 3d 1447 (Fed. Cir. 1997) 

Here, the Veteran is competent to report a contemporaneous examination result. However, given that the Veteran's contention is essentially that the June 2010 examiner conducted both the SPRINT and the Maryland CNC speech discrimination tests, but that she failed to record the need for conducting a second examination and/or the results of the second examination, the Board finds the Veteran's lay testimony lacks credibility. See Buchanan v. Nicholson, 451 F.3d 1336 (Fed. Cir. 2006) (the lack of contemporaneous medical records is one fact the Board can consider and weigh against the other evidence, although the lack of such medical records does not, in and of itself, render the lay evidence not credible). 

The evidence demonstrates that all three audiological examinations were adequate for rating purposes, and that the severity of the Veteran's hearing loss was adequately assessed at each of the three audiological examinations conducted during the appellate period. 

The Veteran is also competent to describe the effects of his hearing loss on his daily functioning, such as having difficulty understanding other people with background noise present. However, disability ratings are derived by a mechanical application of the rating schedule. Lendenmann, 3 Vet. App. at 349. Thus, the Board has no discretion in this matter and must predicate its determination on the basis of the results of the audiological examinations of record. 

The Veteran's claim for an initial compensable rating for his bilateral hearing loss prior to September 8, 2017, and for an evaluation in excess of 10 percent thereafter, is denied. 


ORDER

A compensable rating for bilateral hearing loss from January 4, 2010, to September 7, 2017, is denied.

A rating in excess of 10 percent for bilateral hearing loss since September 8, 2017, is denied.


____________________________________________
Vito A. Clementi
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs