Citation Nr: 1755065	
Decision Date: 11/30/17    Archive Date: 12/07/17

DOCKET NO.  12-30 499	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas


THE ISSUE

Entitlement to an initial compensable evaluation for bilateral hearing loss.


REPRESENTATION

Veteran represented by:	Texas Veterans Commission


WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

J. Gallagher, Associate Counsel


INTRODUCTION

The Veteran served on active duty from June 1971 to March 1973.

This appeal is before the Board of Veterans' Appeals (Board) from an August 2012 rating decision of the abovementioned Department of Veterans Affairs (VA) Regional Office (RO).  In February 2016, the Veteran testified during a Board hearing before the undersigned Veterans Law Judge via videoconference.  A transcript is included in the claims file.

In May 2016, the Board remanded the Veteran's appeal with instruction to obtain a record of a May 2013 private audiological examination and to provide the Veteran with another VA examination.  The relevant record was obtained and the Veteran underwent another examination in June 2017.  Additionally, the Board remanded three issues with instruction to issue a statement of the case pursuant to Manlincon v. West, 12 Vet. App. 238 (1999).  While this has not yet occurred, the record is clear that active development of these issues is underway at the RO, and the Board therefore considers these issues to be outside the scope of this decision.  The Board is therefore satisfied that the instructions in its May 2016 remand have been satisfactorily complied with.  See Stegall v. West, 11 Vet. App. 268 (1998).


FINDING OF FACT

The Veteran manifested, at worst, Level VI hearing in his right ear and Level III hearing in his left ear.


CONCLUSION OF LAW

The criteria for an initial evaluation of 10 percent, but not in excess thereof, for bilateral hearing loss have been met.  38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.85, 4.86 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran seeks an increase to his rating for bilateral hearing loss.

Under applicable criteria, VA has certain notice and assistance obligations to claimants.  See 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).  Neither the Veteran nor his representative has raised any issues with 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 duty to assist argument).  There is thus no prejudice to the Veteran in deciding this appeal.

Disability evaluations are determined by application of the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity.  38 U.S.C. § 1155; 38 C.F.R. Part 4.  An evaluation of the level of disability present must also include consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment.  38 C.F.R. § 4.10.  

"Staged" ratings are appropriate for any rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings.  See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App 119 (1999).

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 to be considered when making disability evaluations.  See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995).

In evaluating service-connected hearing loss, disability ratings are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are performed.  Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992).  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 audiometry test.  38 C.F.R. § 4.85.  Evaluations of bilateral hearing loss range from noncompensable to 100 percent based on an organic impairment of hearing acuity, as measured by controlled speech discrimination tests in conjunction with the average hearing threshold, as measured by puretone audiometric tests in the frequencies of 1000, 2000, 3000 and 4000 cycles per second.  The rating schedule establishes 11 auditory acuity Levels designated from Level I for essentially normal hearing acuity through Level XI for profound deafness.

VA audiological evaluations are conducted using a controlled speech discrimination test together with the results of puretone audiometry tests.  The vertical line in Table VI (printed in 38 C.F.R. § 4.85) represents nine categories of the percentage of discrimination based on a controlled speech discrimination test.  The horizontal columns in Table VI represent 9 categories of decibel loss based on the puretone audiometry test.  The numeric designation of impaired hearing (Levels I through XI) is determined for each ear by intersecting the vertical row appropriate for the percentage of discrimination and the horizontal column appropriate to the puretone decibel loss.  The percentage evaluation is found from Table VII in 38 C.F.R. § 4.85 by intersecting the vertical column appropriate for the numeric designation for the ear having the better hearing acuity and the horizontal row appropriate for the numeric designation for the level for the ear having the poorer hearing acuity.  For example, if the better ear had a numeric designation of Level "V" and the poorer ear had a numeric designation of Level "VII" the percentage evaluation is 30 percent.  See 38 C.F.R. § 4.85.

Regulations also provide that in cases of exceptional hearing loss, i.e., 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).  The provisions of 38 C.F.R. § 4.86(b) further provide that when the puretone threshold is 30 decibels or less at 1000 hertz and 70 decibels or more at 2000, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or VIa, whichever results in the higher numeral.  That numeral will then be evaluated to the next higher Roman numeral.

The Veteran underwent a VA examination in June 2012.  He reported poor speech discrimination.  Audiometry results revealed pure tone thresholds as follows:




HERTZ



1000
2000
3000
4000
Average
RIGHT
25
80
80
70
63.75
LEFT
25
60
65
65
53.75

Speech recognition scores were 90 percent in the right ear and 94 percent in the left ear.  The examiner diagnosed bilateral sensorineural hearing loss.

VA treatment records reflect that in February 2013 the Veteran reported hearing loss.  He was referred to audiology.

Private treatment records reflect that the Veteran underwent an audiological evaluation in May 2013.  Audiometry results revealed pure tone thresholds as follows:




HERTZ



1000
2000
3000
4000
Average
RIGHT
30
70
Not tested
80
N/A
LEFT
25
65
Not tested
70
N/A

Speech recognition scores of 80 percent in the right ear and 84 percent in the left ear were included in the report, but it is unclear whether they were Maryland CNC scores.

VA treatment records reflect that in November 2016 the Veteran requested a referral to audiology due to sudden hearing loss in the past 14 days.  There is no evidence that any audiological evaluation was performed.

The Veteran underwent another VA examination in February 2017.  He reported that he regularly needed to ask people to repeat themselves.  Audiometry results revealed pure tone thresholds as follows:




HERTZ



1000
2000
3000
4000
Average
RIGHT
25
70
70
70
58.75
LEFT
25
65
75
60
56.25

Speech recognition scores were 92 percent in both ears.  The examiner diagnosed bilateral sensorineural hearing loss.

As an initial matter, the Board finds that staged ratings are not appropriate for the Veteran's hearing loss.  Examinations have revealed threshold limits in relatively similar ranges, slightly improving in one ear and slightly worsening in the other.  Because no distinct worsening or improvement can be found when regarding the disability as a whole, the Board will afford all benefit of the doubt to the Veteran and analyze based on the most severe measured thresholds.    

Hearing loss in the right ear has consistently shown an exceptional hearing loss pattern under 38 C.F.R. § 4.86(b).  The Veteran's thresholds in this ear have consistently been at 30 decibels or less at 1000 hertz and 70 decibels or more at 2000 hertz.  As such, hearing loss in this ear is to be measured on Table VI or Table VIa, whichever results in the higher numeral.  Taking the most severe measurements of each of the four hertz levels, the Veteran's average is 67.5 decibels.  On Table VIa, this yields a Roman numeral designation of V.  A higher Roman numeral designation on Table VI would require a speech recognition score of 74 or lower.  As the evidence does not support such a finding, the Board will use Table VIa.  Furthermore, 38 C.F.R. § 4.86(b) instructs that the Roman numeral designation be increased by one to VI.

Hearing loss in the left ear has not shown any exceptional hearing loss patterns under 38 C.F.R. § 4.86, as the 1000 hertz threshold has remained under 55 decibels and the 2000 hertz threshold has remained under 70 decibels.  As such, the Board will measure hearing using Table VI only.  Taking the most severe measurements of each of the four hertz levels, the Veteran's average is 57.5 decibels.  The columns on Table VI include ranges of 50-57 and 58-65; affording all benefit to the Veteran, the Board will use the column labeled 58-65.  Under this column, the Veteran is assigned a Roman numeral designation of II using the Maryland CNC scores from the VA examinations, but he is assigned a Roman numeral designation of III using the scores from the May 2013 private evaluation, if they could be verified as Maryland CNC scores.  

Turning to Table VII, a Roman numeral designation of VI in the worse ear matched with a Roman numeral designation of II or III in the better ear yields a 10 percent evaluation.  Because the appropriate rating is 10 percent regardless of whether the Board uses the May 2013 speech recognition scores, the Board finds that remand is not necessary to determine whether these scores were found using the Maryland CNC test.

For these reasons, the Board finds that a 10 percent evaluation is warranted for the Veteran's bilateral hearing loss.  The Board further finds that higher evaluations are not warranted for hearing loss no worse than Level VI in the right ear and Level III in the left ear.


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ORDER

An initial evaluation of 10 percent, but not in excess thereof, for bilateral hearing loss is granted, subject to the laws and regulations governing the payment of VA benefits.



____________________________________________
JONATHAN B. KRAMER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs