Citation Nr: 1756695	
Decision Date: 12/07/17    Archive Date: 12/15/17

DOCKET NO.  13-29 661	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUE

Entitlement to a compensable evaluation for bilateral hearing loss prior to August 20, 2016, and in excess of 10 percent thereafter.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

A. Diaz-Ferguson, Associate Counsel 






INTRODUCTION

The Veteran served on active duty from November 1979 to November 1981.

This matter comes before the Board of Veterans' Appeals (Board) from a July 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.  

A brief procedural history of this matter is warranted.  The Veteran first initiated a claim to increase the evaluation of his bilateral hearing loss in October 2007.  The RO denied the increase in its July 2008 rating decision.  In April 2009, the Veteran submitted a statement disputing the rating decision.  As the July 2008 rating decision had not yet become final in April 2009, the Veteran's statement constitutes a notice of disagreement (NOD).  See 38 C.F.R. § 3.156 (b).  The RO continued its non-compensable evaluation of bilateral hearing loss in its August 2009 rating decision, and the Veteran submitted another NOD in April 2010.  An August 2010 rating decision again denied an increase of the disability evaluation and the Veteran appealed that decision in an October 2010 NOD.  The RO continued the non-compensable evaluation in its August 2013 statement of the case (SOC), and the Veteran substantially appealed the SOC in October 2013.  A January 2014 supplemental statement of the case (SSOC) again denied the requested increase in evaluation and the matter was certified to the Board in February 2014.  

When this matter was last before the Board, in July 2016, it was remanded to the RO for additional development.  As the requested development has been completed, no further action is necessary to comply with the Board's remand directives.  Stegall v. West, 11Vet. App. 268, 271 (1998).  

The record before the Board consists of electronic records in Virtual VA and the Veterans Benefits Management System (VBMS).




FINDINGS OF FACT

1.  The Veteran demonstrated Level II hearing acuity in his right ear and Level I hearing acuity in his left ear in a June 2010 VA audiological examination. 

2.  The Veteran demonstrated Level I hearing acuity in his right ear and Level I hearing acuity in his left ear in an August 2009 VA audiological examination.

3.  The Veteran demonstrated Level II hearing acuity in his right ear and Level I hearing acuity in his left ear in June 2010 VA audiological examination. 

4.  The Veteran demonstrated Level X hearing acuity in his right ear and Level II hearing acuity in his left ear in August 2016 VA audiological examination. 


CONCLUSION OF LAW

The criteria for a compensable disability rating prior to August 20, 2016, and in excess of 10 percent thereafter for bilateral hearing loss have not been met.  38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 4.85, 4.86 (a), Diagnostic Code 6100 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2014), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2017), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim.

They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim.  As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant.  

The Board also notes the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103 (a) requires that notice to a claimant pursuant to the VCAA be provided 'at the time' that or 'immediately after' VA receives a complete or substantially complete application for VA-administered benefits.  Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004).  The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim.  Dingess v. Nicholson, 19 Vet. App. 473 (2006).

The Veteran was provided all required notice in December 2007 and May 2008 letters, prior to the July 2008 rating decision on appeal. 

The record also reflects that all pertinent available service treatment records (STRs) and all available post-service medical evidence identified by the Veteran have been obtained.  In addition, the Veteran was afforded VA audiological examinations in June 2008, August 2009, June 2010, and August 2016.  The Veteran has not asserted, and the evidence of record does not show, that his disability has increased in severity since his most recent examination.  In addition, the Veteran was afforded the opportunity to present testimony at a hearing before the Board, but declined.  

Neither the Veteran nor his representative has identified any outstanding evidence that could be obtained to substantiate the claims; the Board is also unaware of any such evidence.  Accordingly, the Board will address the merits of the Veteran's claims.  



Legal Criteria

Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4.  The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations.  38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321 (a), 4.1.  

Disability ratings for hearing loss disability are derived from mechanical application of the rating schedule to the numeric designations resulting from audiometric testing.  See Lendenmann v. Principi, 3 Vet. App. 345 (1992).

The rating schedule establishes 11 auditory hearing acuity levels based upon average puretone thresholds and speech discrimination.  See 38 C.F.R. § 4.85.

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.  Examinations will be conducted without the use of hearing aids.  38 C.F.R. § 4.85 (a).

Table VI, "Numeric Designation of Hearing Impairment Based on Puretone Threshold Average and Speech Discrimination," is used to determine a Roman numeral designation (I through XI) for hearing impairment based on a combination of the percent of speech discrimination (horizontal rows) and the puretone threshold average (vertical columns).  The Roman numeral designation is located at the point where the row and column intersect.  38 C.F.R. § 4.85 (b).

Table VIa, "Numeric Designation of Hearing Impairment Based Only on Puretone Threshold Average," is used to determine a Roman numeral designation (I through XI) for hearing impairment based only on puretone threshold average.  Table VIa is used when the examiner certifies that the use of the speech discrimination test is not appropriate due to language difficulties, inconsistent speech discrimination scores, etc., or when indicated under the provisions of § 4.86.  38 C.F.R. § 4.85 (c).

"Puretone threshold average" as used in Tables VI and VIa is the sum of the puretone thresholds at 1000, 2000, 3000 and 4000 Hertz and divided by four.  This average is used in all cases (including those of § 4.86) to determine a Roman numeral designation from Tables VI and VIa.  38 C.F.R. § 4.85 (d).  

Table VII, "Percentage Evaluations of Hearing Impairment," is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment in each ear.  The horizontal rows represent the ear having better hearing and the vertical columns represent the ear having the poorer hearing.  The percentage evaluation is located at the point where the row and the column intersect.  38 C.F.R. § 4.85 (e).

Provisions for evaluating exceptional patterns of hearing impairment are as follows:

(a) 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.

(b) When the puretone thresholds are 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz, 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; the numeral will then be elevated to the next higher Roman numeral.  Each ear will be evaluated separately.  38 C.F.R. § 4.86.  

Burden of Proof

Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary.  The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary.  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107 (West 2014); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

To deny a claim on its merits, the evidence must preponderate against the claim.  Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54.  

Factual Background and Analysis

In accordance with 38 C.F.R. §§ 4.1, 4.2 (2016) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the service-connected disability.  The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes.  Moreover, the Board is of the opinion that this case presents no evidentiary considerations which would warrant an exposition of remote clinical histories and findings pertaining to the disability under review, except as noted below.  

The Veteran seeks a compensable disability rating for his service-connected bilateral hearing loss prior to August 20, 2016, and in excess of 10 percent thereafter.  

Period Prior to August 20, 2016

The Veteran first underwent a VA examination to assess the severity of his bilateral hearing loss in June 2008.  On that occasion, the Veteran's puretone thresholds, in decibels, were as follows: 

06/2008
HERTZ



500
1000
2000
3000
4000
AVERAGE
RIGHT
55
55
45
50
45
48.75
LEFT
30
30
30
35
35
32.5

Speech recognition was 88 percent in the right ear and 94 percent in the left ear.  

Applying the values from this examination to Table VI result in a Level II Roman numeral designation for the right ear and a Level I Roman numeral designation for the left ear.  Applying these results to Table VII, a 0 percent disability rating is warranted.  A rating under exceptional patterns of hearing impairment is inadequate here because not all of the puretone thresholds for the four specified frequencies are 55 or higher for either ear.  See 38 C.F.R. § 4.86 (a).  Similarly, neither ear shows a puretone threshold of 30 decibels or less at 1000 Hertz and a threshold of 70 decibels or more at 2000 Hertz.  38 C.F.R. § 4.86 (b).     

Next, the Veteran underwent a VA examination in August 2009, at which the following puretone thresholds were recorded: 


08/2009
HERTZ



500
1000
2000
3000
4000
AVERAGE
RIGHT
60
60
50
45
45
50
LEFT
10
15
10
25
30
20

Speech recognition was 94 percent in the right ear and 96 percent in the left ear.  

Under Table VI, the Veteran demonstrated a Level I hearing impairment in the right ear, and a Level I hearing impairment in the left ear.  Applying these results to Table VII, a 0 percent disability rating is warranted.  As was the case in the previous examination, the puretone values did not meet the requirements of § 4.86.  As such, a rating under exceptional patterns of hearing impairment was not warranted.   




In June 2010, the Veteran underwent a VA examination which yielded the following puretone threshold readings: 


06/2010
HERTZ



500
1000
2000
3000
4000
AVERAGE
RIGHT
60
65
60
45
45
53.75
LEFT
15
20
15
25
30
22.5

Speech recognition was 88 percent in the right ear and 96 percent in the left ear.  

Under Table VI, the Veteran demonstrated a Level II hearing impairment in the right ear, and a Level I hearing impairment in the left ear.  Applying these results to Table VII, a 0 percent disability rating is warranted.  As was the case in the previous examinations, the puretone values did not meet the requirements of § 4.86.  As such, a rating under exceptional patterns of hearing impairment was not warranted.  

Upon a review of the file, it is evident the criteria for a compensable disability rating prior to August 20, 2016 under Diagnostic Code 6100 have not been met.  Although the audiological evaluations clearly show the Veteran has impaired hearing in both ears, the hearing loss, during this period, had not yet reached a level that would warrant a 10 percent rating under the rating schedule.  As noted above, ratings for hearing impairment are derived by the mechanical application of the Rating Schedule to the numeric designations assigned after audiometry evaluations are rendered.  On this basis, the Veteran is not entitled to a compensable rating for bilateral hearing loss prior to August 20, 2016, as the preponderance of the evidence is against such a claim and the benefit of the doubt doctrine does not apply.





Period beginning August 20, 2016

In accordance with the Board's July 2016 remand, the Veteran underwent a VA examination in August 2016 where his puretone thresholds were recorded as follows: 

08/2016
HERTZ



500
1000
2000
3000
4000
AVERAGE
RIGHT
105
105
105
105+
100
104
LEFT
45
45
35
40
40
40

Speech recognition was 88 percent in the left ear and could not be tested in the right ear.  The examiner noted speech recognition was not appropriate for the right ear due to language difficulties, cognitive problems and inconsistent word recognition scores that made combined use of puretone average and word recognition scores inappropriate.  

Under Table VI, the Veteran demonstrated a Level II hearing impairment in the left ear.  As noted above, the examiner determined speech recognition testing in the right ear was inadequate.  Additionally, the puretone threshold for the right ear, at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hz), was 55 decibels or higher; as such, the Board must determine the Roman numeral designation for the Veteran's hearing loss, for the right ear, from Table VIa.  38 C.F.R. § 4.86 (a).  Under Table VIa, the Veteran demonstrated a Level X hearing impairment for his right ear.  As such, the Board will use Table VI to evaluate his left ear hearing impairment, and Table VIa to evaluate the Veteran's right ear hearing impairment, as this results in the higher numeral designations for each ear.  Applying these results to Table VII, a 10 percent disability rating is warranted for hearing loss.  

As with the first rating period, the criteria for a disability rating in excess of 10 percent, beginning on August 20, 2016, under Diagnostic Code 6100 have not been met.  The record clearly shows the Veteran's bilateral hearing loss worsened between the June 2010 and August 2016 examinations.  However, even with the worsening during this period, the hearing loss has not yet reached a level that would warrant a rating above 10 percent under the rating schedule.  As noted above, ratings for hearing impairment are derived by the mechanical application of the Rating Schedule to the numeric designations assigned after audiometry evaluations are rendered.  On this basis, the Veteran is not entitled to a rating in excess of 10 percent, beginning on August 20, 2016, as the preponderance of the evidence is against such a claim, and the benefit of the doubt doctrine does not apply. 


ORDER

Entitlement to a compensable evaluation, prior to August 20, 2016, and in excess of 10 percent thereafter for bilateral hearing loss is denied.



____________________________________________
T. REYNOLDS
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs