Citation Nr: 1756535	
Decision Date: 12/07/17    Archive Date: 12/15/17

DOCKET NO.  13-28 025	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Louisville, Kentucky


THE ISSUE

Entitlement to a compensable rating for bilateral hearing loss. 


REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

M. Showalter, Associate Counsel


INTRODUCTION

The appellant is a Veteran who served on active duty from May 1968 to December 1969.  This matter is before the Board of Veterans' Appeals (Board) on appeal from an October 2010 rating decision of the Louisville, Kentucky Department of Veterans Affairs (VA) Regional Office (RO). 

The Veteran perfected an appeal for service connection for esophageal stricture, residuals of esophageal cancer with a September 2013 VA Form 9 (substantive appeal).  Subsequently in a rating decision dated December 2015, the RO granted service connection at an evaluation of 30 percent.  As the Veteran has not initiated an appeal regarding the disability rating or effective date assigned, the issue is no longer before the Board on appeal.  Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997); Barerra v. Gober, 112 F.3d 1030 (1997). 

In the September 2013 substantive appeal, the Veteran requested a local hearing.  In correspondence dated June 2014, the Veteran indicated that he desired a videoconference hearing instead.  That hearing was held in March 2015 by a Veteran's Law Judge (VLJ).  A transcript of that hearing is associated with the record.  Because that VLJ is no longer with the Board, the Veteran was offered another hearing to be conducted by the undersigned, but in September 2017 he declined an additional hearing.  38 U.S.C. § 7107(c); 38 C.F.R. § 20.707.  The Board will accordingly adjudicate the claim. 


FINDING OF FACT

The Veteran's latest audiometric examinations show that he has level I right ear hearing loss and level I left ear hearing loss.  These findings were the worst levels of hearing loss shown by the record. 




CONCLUSION OF LAW

The criteria for a compensable evaluation for bilateral hearing loss have not been met.  38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 3.321, 4.1, 4.2, 4.3, 4.85, Diagnostic Code (DC) 6100 (2016).


REASONS AND BASES FOR FINDING AND CONCLUSION

Duty to Notify and Assist

The VCAA, in part, describes the VA's duties to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2016).  The VCAA applies to the instant claims. 

The RO sent the Veteran a letter in August 2010 prior to adjudication of his claims, providing notice and satisfying the requirements of the VCAA.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  No additional notice is required, to include as to the downstream initial rating claim.  Dunlap v. Nicholson, 21 Vet. App. 112 (2007).

Regarding the duty to assist, the Veteran's VA and private treatment records have been obtained.  The agency of original jurisdiction (AOJ) arranged for appropriate VA examinations which were held in September 2010, March 2012, and September 2015.  The Board finds that the clinical findings and informed discussion of the history and cause of the Veteran's hearing loss in the examinations are sufficient for rating purposes.  See Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007); Barr v. Nicholson, 21 Vet. App. 303, 310-11 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 299-300 (2008).  

The Board also finds that there has been substantial compliance with the prior April 2014 remand.  See Stegall v. West, 11 Vet. App. 268 (1998).  An examination was held and the requested opinion obtained pursuant to that remand in May 2016.  The Veteran has not identified any available, outstanding records that are relevant to the claims decided herein.  

The Board finds that the record as it stands includes adequate, competent evidence to allow the Board to decide the matter on appeal, and that no further evidentiary development is necessary.  See generally 38 C.F.R. § 3.159(c)(4).  The Veteran has not identified any pertinent evidence that remains outstanding.  VA's duty to assist is met and, accordingly, the Board will address the merits of the claim. 

Legal Criteria

Initially, the Board notes that it has reviewed all of the evidence in the record, with an emphasis on the evidence relevant to this appeal.  Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record.  Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).  The Board will summarize the relevant evidence as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim being decided.

Ratings for hearing loss disability are derived from Table VII of 38 C.F.R. § 4.85 by a mechanical application of the rating schedule to numeric designations for hearing acuity assigned after audiometric evaluations are performed.  Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992).  The numeric designations correspond to eleven auditory acuity levels, indicated by Roman numerals, where Level I denotes essentially normal acuity and Level XI denotes profound deafness.  The assignment of the appropriate numeric level is based on the results of controlled speech discrimination tests in combination with the Veteran's average hearing threshold.  The average puretone threshold is derived from puretone audiometric testing in the frequencies of 1000, 2000, 3000, and 4000 Hertz.  38 C.F.R. § 4.85.

Rating specialists use either Table VI or VIA of 38 C.F.R. § 4.85 to determine the hearing acuity level.  Table VIA is used when speech discrimination tests are not appropriate due to language difficulties, inconsistent speech discrimination scores, etc., or where there is an exceptional pattern of hearing loss (defined in 38 C.F.R. § 4.86).  One such pattern occurs when the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more.  38 C.F.R. § 4.86(a).  Another occurs when the puretone threshold at 1000 Hertz is 30 decibels or less and the puretone threshold at 2000 Hertz is 70 decibels or more.  38 C.F.R. § 4.86(b). 

Separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings."  Fenderson v. West, 12 Vet. App. 119, 126-27 (1999).  The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value.  Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a).  The Board will grant the Veteran's claim if the evidence supports the claim or is evenly balanced for and against the claim (also referred to as "relative equipoise").  38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  

Factual Background

The Veteran filed his claim for an increased rating in August 2010.  In the first audiological examination after this date in September 2010, the Veteran had a right ear speech recognition score of 92% and a left ear recognition score of 92% and the following audiogram results: 

1000Hz
2000Hz
3000Hz
4000Hz
Average
Right Ear
20
35
55
60
42.5
Left Ear
30
30
65
85
52.5

The examiner noted that the hearing loss in both ears was "mild to moderate."  Under Table VI, his right ear hearing loss would be at level I and his left ear hearing loss would be at level I, which would be a 0 percent compensable rating under Table VII. 

In his notice of disagreement dated March 2011, the Veteran reported that artillery fire in service had a detrimental effect on his hearing. 

In a March 2012 audiological examination, the Veteran had a right ear speech recognition score of 96% and a left ear recognition score of 96% and the following audiogram results: 

1000Hz
2000Hz
3000Hz
4000Hz
Average
Right Ear
25
40
60
65
47.5
Left Ear
30
30
65
80
51.25

The examiner noted that the hearing loss in both ears caused the Veteran difficulty in understanding speech, especially with other noise present.  Under Table VI, his right ear hearing loss would be at level I and his left ear hearing loss would be at level I, which would be a 0 percent compensable rating under Table VII. 

VA treatment records from January 2014 until September 2015 show that the Veteran suffered from hearing loss, but no audiological examination was completed during this period to assess the degree of severity. 

In a hearing on March 4, 2015, the Veteran reported that he was receiving treatment for his hearing loss at a VA facility.  He reported that his last audiological examination was three years prior.  He reported that he was given hearing aids one year and half prior to the hearing. 

In the May 2015 remand, the Board requested that a new audiological examination assess the severity of the Veteran's hearing loss and clarify whether the previous examination employed the Maryland CNC standard for speech recognition testing. 

In a September 2015 audiological examination, the Veteran had a right ear speech recognition score of 92% and a left ear recognition score of 92% and the following audiogram results: 

1000Hz
2000Hz
3000Hz
4000Hz
Average
Right Ear
25
45
60
65
48.75
Left Ear
25
45
70
85
56.25

Under Table VI, his right ear hearing loss would be at level I and his left ear hearing loss would be at level I, which would be a 0 percent compensable rating under Table VII.  The examiner also clarified that 2012 audiological examination employed the Maryland CNC for speech recognition testing and reaffirmed the audiogram results.

In private treatment records dated March through October 2015, there were no abnormalities of the ears noted.  The Veteran reported in March 2015 he suffered from ringing in his ears but reported "no difficulty hearing."

Analysis 

A compensable rating for the Veteran's bilateral hearing loss is not warranted.  While audiological testing has shown a gradual worsening in the Veteran's hearing, at no period on appeal did his hearing loss reach a compensable evaluation under Table VII.  Even taking the Veteran's worst right and left ear results from the most recent examination, he still would not qualify for a compensable rating under Table VII.  Accordingly, there is no evidence of record that would allow the Board to grant a higher disability rating for his hearing loss.

None of the audiological examinations of record reported a puretone threshold of 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz for either ear.  For this reason, the criteria of 38 C.F.R. § 4.86(b) are inapplicable.  Since the Veteran's puretone levels are not 55 decibels or higher at 1000, 2000, 3000 and 4000 Hertz in any of his tests, Table VIa is not applicable. 38 C.F.R. § 4.86 (a).  

The preponderance of the evidence is against the claim for an increased rating and, accordingly, the doctrine of equipoise (the "benefit of the doubt") does not apply.  

The Board notes that this decision does not leave the Veteran without recourse.  If the service-connected disability should worsen in the future, the Veteran is free to file a new claim for an increased rating.  However, for the Board to award additional compensation based on the mere potential for such worsening would be premature at this time.  The Board is grateful to the Veteran for his honorable service.  

ORDER

Entitlement to an increased rating for hearing loss is denied.






______________________________________________
VICTORIA MOSHIASHWILI 
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs