Citation Nr: 1756083	
Decision Date: 12/05/17    Archive Date: 12/15/17

DOCKET NO.  09-22 770	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office in Cleveland, Ohio


THE ISSUE

Entitlement to an initial compensable evaluation for service-connected bilateral hearing loss for the period prior to April 7, 2014 and a rating in excess of 20 percent thereafter.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

J. Wozniak, Associate Counsel
INTRODUCTION

The Veteran served on active duty from November 1972 to May 1976.

This matter came before the Board of Veterans' Appeals (Board) on appeal from a March 2007 decision of the Cleveland, Ohio, Regional Office (RO). In June 2012, the Board remanded the appeal to the RO for additional development. In May 2017, the RO granted a 20 percent rating for bilateral hearing loss, effective April 7, 2014. 

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.

In March 2012, the Veteran was afforded a video conference before a Veterans Law Judge who is no longer employed by the Board. A hearing transcript is in the record. The Veteran was notified of his right to schedule a new hearing in July 2017 and did not respond within 30 days. Thus, the Board has assumed the Veteran does not wish to have another hearing and is proceeding with the appeal.


FINDINGS OF FACT

1. During the period prior to April 7, 2014, the Veteran's bilateral hearing loss manifested by average pure air tone conduction thresholds at 1000, 2000, 3000, and 4000 Hertz by no worse than 48.75 decibels in the right ear and 52.5 decibels in the left ear, and speech recognition ability of 94 percent in the right ear and 94 percent in the left ear.

2. During the period since April 7, 2014, the Veteran's bilateral hearing loss manifested by average pure air tone conduction thresholds at 1000, 2000, 3000, and 4000 Hertz by no worse than 58 decibels in the right ear and 65 decibels in the left ear, and speech recognition ability of 68 percent in the right ear and 68 percent in the left ear.
CONCLUSIONS OF LAW

1. The criteria for an initial compensable rating for the period prior to April 7, 2014, for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.7, 4.14, 4.85, 4.86, Diagnostic Code 6100 (2016).

2. The criteria for a rating in excess of 20 percent, since April 7, 2014, for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.7, 4.14, 4.85, 4.86, Diagnostic Code 6100 (2016).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Disability evaluations are determined by comparing the Veteran's current symptomatology with the criteria set forth in the Schedule For Rating Disabilities. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. Part 4 (2016). 

Hearing loss is rated under 38 C.F.R. §§ 4.85, 4.86, diagnostic code 6100. Under diagnostic code 6100, hearing impairment evaluations are derived by a mechanical application of the ratings schedule to the numeric designations assigned after audiometric evaluations are rendered. See Lendenmen v. Principi, 3 Vet. App. 345, 349 (1992). The ratings schedule provides a table for ratings purposes (Table VI) to determine a Roman numeral designation (I through XI) for hearing impairment. Table VII is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment in both ears. See 38 C.F.R. § 4.85.

The rating schedule allows for each ear to be evaluated separately where there is an exceptional pattern of hearing impairment. 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, Table VI or Table VIa is to be used, whichever results in the higher numeral. 38 C.F.R. § 4.86(a). Additionally, when the pure tone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, Table VI or Table VIa is to be used, whichever results in the higher numeral. Thereafter, that numeral will be elevated to the next higher numeral. 38 C.F.R. § 4.86(b).

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. Martinak v. Nicholson, 21 Vet. App. 447 (2007).

Where there is a question as to which of two disability evaluations shall be applied, 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. 

The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided. Separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994).

In November 2006, the Veteran was afforded a VA audiological examination. During this examination, pure tone thresholds, in decibels, were as follows: 




HERTZ



500
1000
2000
3000
4000
RIGHT
20
20
20
50
65
LEFT
20
25
20
50
70

Speech audiometry revealed speech recognition ability of 98 percent in the right ear and 94 percent in the left ear. Based on these results, the VA examiner concluded the Veteran did not have bilateral sensorineural hearing loss. The examiner noted no functional impairment. The examination results represent Level I hearing loss in the right ear and Level I hearing loss in the left ear.

In July 2011, the Veteran was afforded a VA audiological examination. During this examination, pure tone thresholds, in decibels, were as follows: 




HERTZ



500
1000
2000
3000
4000
RIGHT
30
30
30
60
75
LEFT
30
30
30
65
85

Speech audiometry revealed speech recognition ability of 94 percent in the right ear and 94 percent in the left ear. Based on these results, the VA examiner concluded the Veteran did not have bilateral sensorineural hearing loss. The examiner noted no functional impairment other than the Veteran's assertion that his hearing had declined. The examination results represent Level I hearing loss in the right ear and Level I hearing loss in the left ear.

In his March 2012 hearing testimony the Veteran indicated that he had moderate hearing loss when he was discharged from the Navy and that his hearing had deteriorated recently. The Veteran testified that he is limited at work due to his hearing and relies on special treatment by his foreman and assistance from his co-workers so he can receive instructions in a quiet place.

In April 2014, the Veteran was afforded a VA audiological examination. During this examination, pure tone thresholds, in decibels, were as follows: 




HERTZ



500
1000
2000
3000
4000
RIGHT
40
40
45
65
80
LEFT
50
50
50
75
85

Speech audiometry revealed speech recognition ability of 68 percent in the right ear and 68 percent in the left ear. Based on these results, the VA examiner concluded the Veteran had bilateral sensorineural hearing loss. The examiner noted functional impairment which resulted in the Veteran having difficulty hearing during conversations, particularly when there is background noise present. The examination results represent Level V hearing loss in the right ear and Level V hearing loss in the left ear.

In an August 2014 VA treatment record the Veteran stated that he wears his hearing aides regularly and is able to work and converse with others while using his hearing aids. 

In a May 2015 VA treatment record the Veteran indicated he felt that he was taking advantage of his coworkers due to his hearing loss. Another May 2015 VA treatment record indicates the Veteran's hearing loss was a barrier to his learning.  

In March 2016, the Veteran was afforded a VA audiological examination. During this examination, pure tone thresholds, in decibels, were as follows: 




HERTZ



500
1000
2000
3000
4000
RIGHT
35
35
40
65
80
LEFT
35
40
45
65
85

Speech audiometry revealed speech recognition ability of 70 percent in the right ear and 70 percent in the left ear. Based on these results, the VA examiner concluded the Veteran had bilateral sensorineural hearing loss. The examiner noted functional impairment which resulted in difficulty hearing during conversations. The examiner also recorded statements from the Veteran indicating that he could not function in his profession because he constantly had to ask coworkers to repeat themselves. The examination results represent Level V hearing loss in the right ear and Level V hearing loss in the left ear.

In a September 2017 statement the Veteran indicated that his hearing impairment prevented him from functioning at work and led to an early retirement. The Veteran also stated that he cannot hear during normal conversation or while he is driving a car. The Veteran indicated that his disability picture is not adequately represented by the rating schedule and requested extra-schedular evaluation. 

The preponderance of the evidence is against the claim. The bilateral hearing loss disability does not warrant a compensable rating prior to April 7, 2014 and does not warrant a rating in excess of 20 percent since April 7, 2014. 

The Veteran's audiological examinations indicated Level I hearing loss in both ears which warrants a noncompensable rating for the period prior to April 7, 2014. For the period since April 7, 2014, the Veteran's audiological examinations indicated Level V hearing loss in both ears which corresponds to a 20 percent disability rating. 38 C.F.R. § 4.85.

The results of the Veteran's VA audiological examinations do not show that his hearing loss in either ear met the definition of an exceptional pattern of hearing loss and, thus, consideration of whether a compensable rating may be warranted when evaluating the ears separately pursuant to 38 C.F.R. § 4.86 is not required for any of these examinations.

The Board has evaluated whether the Veteran's claim should be referred for consideration of his entitlement to an extra-schedular evaluation for his disorder under 38 C.F.R. § 3.321(b)(1). A comparison between the level of severity and symptomatology of the Veteran's hearing disability and the established criteria found in 38 C.F.R. §§ 4.86 Diagnostic Codes 6100 (2016), reflects that the diagnostic criteria reasonably describe the Veteran's disability level and symptomatology. The Veteran's symptoms include difficulty hearing during normal conversations, including when background noise is present. 

The schedular criteria reasonably describe his disability level and associated impairment. The Board has considered the Veteran's statements that his work was affected by his hearing loss. However, the Court of Appeals for Veteran's Claim (Court), has indicated that the rating criteria for hearing loss contemplates the functional effects of difficulty hearing and understanding speech. Doucette v. Shulkin, 28 Vet. App. 366. The evidence does not indicate additional functional loss beyond hearing and understanding speech. Therefore, the Board has determined that referral of this claim for extra-schedular consideration pursuant to 38 C.F.R. § 3.321(b)(1) is not warranted.


ORDER

An initial compensable evaluation for service-connected bilateral hearing loss for the period prior to April 7, 2014 is denied

A rating in excess of 20 percent for bilateral hearing loss for the period since April 7, 2014 is denied.



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



Department of Veterans Affairs