Citation Nr: 1756735 Decision Date: 12/07/17 Archive Date: 12/15/17 DOCKET NO. 06-33 812 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Entitlement to an initial compensable rating for bilateral hearing loss prior to May 2, 2008, to a rating in excess of 10 percent for bilateral hearing loss from May 2, 2008, to November 15, 2009, and to a rating in excess of 20 percent for bilateral hearing loss from November 16, 2009, to August 26, 2015. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD H. Fisher, Associate Counsel INTRODUCTION The Veteran had honorable active duty service with the United States Army from August 1967 to May 1969, with service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from February 2006 and March 2010 rating decisions from the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York. During the pendency of this appeal, the RO granted an increased, staged rating for bilateral hearing loss, as characterized above, and this January 2016 rating decision ultimately granted a 100 percent rating for bilateral hearing loss effective August 27, 2015. This represents a full grant of benefits sought on appeal beginning on that date. The current appeal began when the Veteran submitted a Notice of Disagreement with a February 2006 rating decision, in which the RO denied an increased rating for the Veteran's service-connected right ear hearing loss and denied service connection for a left ear hearing loss disability. The Board ultimately granted the Veteran's claim for service connection of left ear hearing loss in November 2009 and remanded the matter, directing the RO to adjudicate the severity of the Veteran's service-connected bilateral hearing loss. Effectuating the Board's grant of service connection for a left ear hearing loss, the RO assigned a noncompensable rating effective May 14, 1969, the same effective date that service connection for the Veteran's right ear hearing loss was initially established. The Veteran appealed that initial rating decision and in August 2010, the Board found that the RO had inappropriately rated the Veteran's bilateral hearing loss as distinct noncompensable disabilities. At that time, the Board again remanded the matter and instructed the RO to evaluate the Veteran's bilateral hearing loss effective May 14, 1969. The Board specifically instructed the RO to consider the changes to the rating criteria for hearing loss that were made in 1976, 1987, and 1999. In August 2015, the Board found that there had not been substantial compliance with the terms of its August 2010 remand pursuant to Stegall v. West, 11 Vet. App. 268 (1998). As such, the Board remanded the matter to arrange a VA examination to ascertain the severity of the Veteran's bilateral hearing loss and the Board again directed the RO to readjudicate the claim. In its August 2015 directives, the Board explicitly stated that the RO needed to include a written consideration of the rating criteria prior to the changes in 1976, 1987, and 1999. The RO was also instructed to discuss all pertinent regulations that had been effect in the relevant appellate period and identify which regulation was most beneficial to the Veteran. The matter was remanded again in August 2016 and May 2017. FINDINGS OF FACT 1. From May 14, 1969, to May 2, 2008, the Veteran's bilateral hearing loss manifested with pure tone threshold averages no worse than 53 decibels (dB) in the right ear and 55 dB in the left ear with unreliable speech recognition scores. 2. From May 2, 2008, to November 16, 2009, the Veteran's bilateral hearing loss manifested with pure tone threshold averages no worse than 59 dB in the right ear and 61 dB in the left ear with speech recognition scores of 72 percent in the right ear and 76 percent in the left ear. 3. From November 16, 2009, to August 27, 2011, the Veteran's bilateral hearing loss manifested with pure tone threshold averages no worse than 65 dB in both ears with speech recognition scores of 68 percent in the right ear and 72 percent in the left ear. CONCLUSIONS OF LAW 1. From May 14, 1969, to May 2, 2008, the criteria for entitlement to an initial compensable evaluation 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, 3.385, 4.85, 4.86 (1945, 1976, 1987, 2017). 2. From May 2, 2008, to November 16, 2009, the criteria for entitlement to an evaluation in excess of 10 percent have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.385, 4.85, 4.86 (2017). 3. From November 16, 2009, to August 27, 2011, the criteria for entitlement to an evaluation in excess of 20 percent have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.385, 4.85, 4.86 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VCAA Notice VA has completed the necessary steps in order to meet its duties to notify and assist in this case. The Veteran has not raised any procedural arguments regarding the notice or assistance provided. Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). The Board also finds that the May 2017 remand directives have been substantially complied with. Stegall v. West, 11 Vet. App. 268 (1998). II. Increased Evaluations Disability ratings are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two ratings will be applied, the higher rating will be assigned if the disability picture more closely approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991); see also 38 C.F.R. §§ 4.1, 4.2. As such, the Board has considered all of the evidence of record. However, the most probative evidence of the degree of impairment consists of records generated in proximity to and since the claim on appeal. Under applicable laws and regulations, the rating assigned for hearing loss is determined by a mechanical application of the rating schedule, which is grounded on numeric designations assigned to audiometric examination results. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Initially, the Board notes that the rating criteria for evaluating hearing loss have undergone a number of revisions during the pendency of the Veteran's claim. Below, the substantive changes to the rating criteria for each revision are discussed in further detail. There is no indication that any of the revised criteria are intended to have retroactive effect, and accordingly, the claim should be evaluated only under the former criteria for any time period prior to the effective date of the new rating criteria, and under the revised criteria for the time period commencing on the effective date of the new provisions. See VAOPGCPREC 3-2000 (2000) and 7-2003 (2003). Historically, the Board notes that the rating criteria effective in February 27, 1952, were set forth under the 1945 VA Schedule for Rating Disabilities, as well as the provisions of Extension 8 to the 1945 rating schedule. The 1945 criteria had originally provided that hearing loss was to be evaluated in terms of the number of feet at which ordinary conversational voice was heard. Under the February 1952 revision, a new system was implemented whereby either the results of controlled speech reception testing, or pure tone audiometry, were to be used in evaluating hearing loss. Such examinations were intended to replace the former conversational voice test wherever practicable. Controlled speech reception examinations involved, for each ear separately, measurements of the threshold of intensity in terms of speech reception decibel loss, and the percentage of word discrimination. Pure tone audiometry compared the average decibel loss in each ear at three frequencies: 500, 1000, and 2000 Hertz (Hz). The rating schedule then established six levels of auditory acuity, from Level A for lesser degrees of hearing impairment through Level F for greater degrees of hearing impairment. After determining the designated level of auditory acuity in each ear (based on either controlled speech reception test results, or pure tone audiometry), those levels were combined to give an overall level of hearing impairment. The applicable rating criteria in effect in May 1969 were set forth in the 1945 edition of the Schedule for Rating Disabilities and Extension 8-B, Schedule for Rating Disabilities, 1945 Edition: Rating of Disability from Hearing Impairments (March 1956) (Extension 8-B). This amendment retained the use of controlled speech reception tests and pure tone audiometry as the methods for measurement of auditory acuity, and clarified that the results of conversational voice testing would not be utilized for rating purposes except in unusual cases where no other data was available. A chart for purposes of determining the result of controlled speech reception testing, based upon the combination of speech reception decibel loss and word discrimination scores (denoted at Table I), was added to the rating criteria. The existing chart for determining the overall level of hearing impairment based on controlled speech reception testing and/or pure tone audiometry (denoted as Table II), was updated to reflect revised levels of impairment corresponding to each available percentage rating. These revisions were later codified at 38 C.F.R. §§ 4.87, 4.87a. Parenthetically, the Board notes that the 1945 VA rating schedule was also amended by Extension 8-A, dated October 27, 1952 (consideration of bone-conduction retention in some circumstances for audiometric testing), and extension 8-C, dated June 22, 1956, (renumbering of diagnostic codes pertaining to hearing loss), although these particular amendments do not substantively affect the consideration of the present claim). As of September 9, 1975, the levels of pure tone audiometry average decibel loss and peak decibel loss used to determine the severity of hearing loss for each ear were changed. As noted, prior to September 9, 1975, if the results of pure tone audiometry are used, the equivalent literal designations for each ear, separately, will be ascertained from Table II, and the percentage evaluation determined in the same manner as for speech reception impairment. For example, if the average pure tone decibel loss for the frequencies 500, 1000, and 2000 is not more than 45 decibels, and there is no loss more than 60 decibels for any of those three frequencies, the equivalent literal designation is "C"; if in the other ear, the average is not more than 67 decibels, and there is no loss more than 80 decibels, the equivalent literal designation is "D." The percentage evaluation is therefore found in the horizontal row opposite "C," and in the vertical column under "D," and is 20 percent. Note that if in the first instance any of the three frequencies has a loss of more than 60 decibels, or in the second instance, more than 80 decibels, the literal designation will be higher, i.e., further from "A" in the alphabetical series. 38 C.F.R. § 4.85(c) (1975). As of September 9, 1975, if the results of pure tone audiometry are used, the equivalent literal designations for each ear, separately, will be ascertained from Table VII, and the percentage evaluation determined in the same manner as for speech reception impairment. For example, if the average pure tone decibel loss for the frequencies 500, 1000, and 2000 is not more than 57 decibels, and there is no loss more than 70 decibels for any of those three frequencies, the equivalent literal designation is "C"; if in the other ear, the average is not more than 79 decibels, and there is no loss more than 90 decibels, the equivalent literal designation is "D." The percentage evaluation is therefore found in the horizontal row opposite "C," and in the vertical column under "D," and is 20 percent. Note that if in the first instance any of the three frequencies has a loss of more than 70 decibels, or in the second instance, more than 90 decibels, the literal designation will be higher, i.e., further from "A" in the alphabetical series. 38 C.F.R. § 4.85(c) (1976). The percentage evaluation will be found from Table VII by intersecting the horizontal row appropriate for the literal designation for the ear having the better hearing and the vertical column appropriate to the literal designation for the ear having the poorer hearing. For example, if the better ear has a literal designation of "B" and the poorer ear has a literal designation of "C," the percentage evaluation is in the second horizontal row from the bottom and in the third vertical column from the right and is 10 percent. 38 C.F.R. § 4.85(b) (1975, 1986). Effective December 18, 1987, evaluations of defective hearing ranging from noncompensable to 100 percent based on organic impairment of hearing acuity were to be measured by the results of speech discrimination tests, together with the average hearing threshold levels as measured by pure tone audiometry tests in the frequencies 1,000, 2,000, 3,000, and 4,000 cycles per second (Hz). To evaluate the degree of disability for service-connected hearing loss, the rating schedule established eleven (11) auditory acuity levels, designated from level I for essentially normal acuity through level XI for profound deafness. 38 C.F.R. § 4.85 (1987). This rating criteria were again revised, effective June 10, 1999; however, the substantive provisions under the more recent criteria have not significantly changed. See 38 C.F.R. § 4.87 (1998), and 38 C.F.R. § 4.85 (2013). Currently, evaluations of hearing impairment range from 0 to 100 percent based on organic impairment of hearing acuity. Auditory acuity is gauged by examining the results of controlled speech discrimination tests, together with the results of pure tone audiometric tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hz). To evaluate the degree of disability, the rating schedule establishes 11 auditory acuity levels ranging from Level I, for essentially normal acuity, through Level XI, for profound deafness. 38 C.F.R. § 4.85 Tables VI and VII, as set forth following 38 C.F.R. § 4.85, are used to calculate the rating to be assigned. 38 C.F.R. § 4.85. Under 38 C.F.R. § 4.86, when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000 and 4000 Hz) is 55 decibels (dB) 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 dB or less at 1000 Hz, and 70 dB or more at 2000 Hz, 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 Roman numeral. 38 C.F.R. § 4.86(b). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the veteran. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Board determinations with respect to the weight and credibility of evidence are factual determinations going to the probative value of the evidence. Layno v. Brown, 6 Vet. App. 465, 469 (1994). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno, 6 Vet. App. at 465. Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 C.F.R. § 3.159; see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim on appeal. May 14, 1969, to May 2, 2008 The Veteran contends that he is entitled to an initial compensable evaluation from May 14, 1969, to May 2, 2008. An audiological examination was not provided upon separation from active duty. On the authorized audiological evaluation in November 1969, pure tone thresholds, in dB, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT -5 0 -5 N/A 35 LEFT -5 0 0 N/A 25 The concurrent air conduction study results, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 10 5 X 40 LEFT 10 10 10 X 30 Speech audiometry revealed speech recognition ability of 98 percent in the right ear and of 96 percent in the left ear. Applying the regulations at the time, the Veteran's average dB loss in the right ear was not more than 33 with no individual value more than 45, earning a literal designation of "B." The left ear decibel loss average was not more than 25 with no individual value more than 35, earning a literal designation of "A." These values warranted a noncompensable evaluation for the right ear under the ratings criteria in effect at this time. As of September 9, 1975, the rating criteria changed, but the new criteria would not have afforded the Veteran a compensable evaluation. Both the right ear and the left ear averages were not more than 37 with no individual value greater than 45, earning a literal designation of "A." This, too, yielded a noncompensable evaluation. As of December 18, 1987, the Veteran's average decibel loss in both ears continued to be designated as "A" and provided a noncompensable evaluation. As of June 10, 1999, the Veteran's average decibel loss and speech recognition score in the right ear was "I." The Veteran's average decibel loss and speech recognition score in the left ear was also "I." See 38 C.F.R. § 4.85, Table VI. When assessed under Table VII of the present rating criteria, this, too, yields a noncompensable evaluation. On the authorized audiological evaluation in March 2002, pure tone thresholds, in dB, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 20 25 75 85 LEFT 15 15 25 75 90 Speech audiometry revealed speech recognition ability of 84 percent in the right ear and of 51 percent in the left ear. As applied to Table VI, both of the Veteran's ears warrant a "II" designation. According to Table VII, these evaluations warrant a noncompensable rating. On the authorized audiological evaluation in June 2005, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 15 30 75 90 LEFT 25 20 35 75 90 Speech audiometry was determined by the examiner to be unreliable due to errors and many omissions by the Veteran during testing. As applied to Table VIA, both of the Veteran's ears warrant a "III" designation. According to Table VII, these evaluations warrant a noncompensable rating. In February 2008, the Veteran underwent another VA audiology examination; however, the results for the initial test and subsequent retesting were so poor that the examiner determined that they were unreliable. Based upon the credible, competent audiology results from multiple examinations, the Veteran is not entitled to a compensable evaluation for this period on appeal. Medical evidence of record does not reflect additional audiological examinations that document worsening symptoms. The Board notes that the Veteran indicated that the hearing loss caused difficulty in understanding speech. While the Veteran is competent to provide testimony to establish the occurrence of medical symptoms, he is not medically qualified to prove a matter requiring medical expertise. See Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007). The severity of hearing loss is a complex medical determination outside the realm of common knowledge of a lay person. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Audiological evaluations must be conducted by a medical professional to determine the extent of hearing loss. In this case, the Veteran has offered lay statements regarding severity that are contemplated by the rating criteria. No other audiological evaluations have been associated with the record that indicate a compensable evaluation is warranted. As such, the Board affords substantial probative weight to the medical evidence of record that demonstrates a noncompensable rating based on multiple audiological diagnostic studies. The Veteran's lay evidence similarly does not support a compensable evaluation in this period. Since the preponderance of the evidence is against the claim, the provisions of 38 U.S.C. § 5107(b) regarding reasonable doubt are not applicable. The Veteran's claim of entitlement to an initial compensable rating for bilateral hearing loss must be denied. May 2, 2008, to November 16, 2009 The Veteran contends that he is entitled to an evaluation in excess of 10 percent from May 2, 2008, to November 16, 2009. On the authorized audiological evaluation in May 2008, pure tone thresholds, in dB, were as follows: (CONTINUED ON NEXT PAGE) HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 35 80 105 LEFT 20 15 40 90 100 Speech audiometry revealed speech recognition ability of 72 percent in the right ear and of 76 percent in the left ear. The right ear thus had a numerical designation of "V," and the left ear was "IV" according to Table VI. Following the percentage evaluations listed in Table VII, the Veteran was entitled to a maximum evaluation of 10 percent. Medical evidence of record from this period does not reflect additional audiological examinations that may be used for additional comparison. The Veteran reported difficulty understanding speech when he was not facing a person to avail himself of visual cues. He also expressed difficulty hearing the television, radio, and song lyrics. Based upon the credible, competent audiology results from this period, the Veteran is not entitled to an evaluation in excess of 10 percent. Medical evidence of record does not reflect additional audiological examinations that document worsening symptoms. The Board notes that the Veteran continued to indicate that the hearing loss caused difficulty in understanding speech. The Veteran is competent to provide testimony to establish the occurrence of medical symptoms, but he is not medically qualified to prove a matter requiring medical expertise. See Barr, 21 Vet. App. at 307-08. The severity of hearing loss is a complex medical determination outside the realm of common knowledge of a lay person. See Jandreau, supra. Audiological evaluations must be conducted by a medical professional to determine the extent of hearing loss. In this case, the Veteran has offered lay statements regarding severity that are contemplated by the rating criteria. No other audiological evaluations have been associated with the record that indicate an evaluation in excess of 10 percent is warranted. As such, the Board affords substantial probative weight to the medical evidence of record that supports a 10 percent evaluation based on multiple audiology diagnostic studies. The Veteran's lay evidence similarly does not support a higher evaluation in this period. Since the preponderance of the evidence is against the claim, the provisions of 38 U.S.C. § 5107(b) regarding reasonable doubt are not applicable. The Veteran's claim of entitlement to a rating in excess of 10 percent for bilateral hearing loss must be denied. November 16, 2009, to August 27, 2015 The Veteran contends that he is entitled to an evaluation in excess of 20 percent from November 16, 2009 to August 27, 2015. On the authorized audiological evaluation in November 2009, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 20 40 80 100 LEFT 15 20 40 90 100 Speech audiometry revealed speech recognition ability of 68 percent in the right ear and of 72 percent in the left ear. According to Table VI, both ears warrant a "V" designation, which is comparable to a 20 percent evaluation under Table VII. In the examination, the Veteran reported "missing conversation" on television, and in movies and the theatre when not facing the speaker. The examiner noted, however, that the speech recognition scores were characterized by many omissions, unlikely substitutions and additions of consonant. As the scores remained relatively consistent with the findings of the previous examination, the examiner did not deem them inadequate for adjudication. The examiner did highlight that the Veteran required repeated reinstruction, and he only repeated half of the correct responses for the right ear. On the authorized audiological evaluation in April 2011, pure tone thresholds, in dB, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 20 50 90 100 LEFT 20 25 40 90 105 Speech audiometry revealed speech recognition ability of 68 percent in the right ear and of 72 percent in the left ear. Under Table VI, both ears maintain a "V" designation, and a 20 percent evaluation is found under Table VII. In the examination, the Veteran reported difficulty understanding conversational speech when not facing others, difficulty understanding dialogue in movies and television, and the inability to hear his cell phone ring. Speech audiometry, however, was taken from the November 2009 VA examination due to the results of the April 2011 examination being strongly suspect. In the April 2011 examination, most errors on word recognition were complete omissions despite adequate pauses given during the list presentation. The examiner judged those scores to be invalid and unreliable for adjudicative purposes. Evidence of record does not reflect additional audiology examinations which may be used for adjudicative purposes. Based upon the credible, competent audiology results from two examinations, the Veteran is not entitled to an evaluation in excess of 20 percent for this period on appeal. Medical evidence of record does not reflect additional audiological examinations that document worsening symptoms. The Board notes that the Veteran continued to indicate that the hearing loss caused difficulty in understanding speech. Competent audiological evaluations have been conducted by to determine the extent of hearing loss, and each reflects a proper 20 percent evaluation. In this case, the Veteran has offered lay statements regarding severity that are contemplated by the rating criteria. No other audiological evaluations have been associated with the record that indicate an evaluation in excess of 20 percent is warranted. As such, the Board affords substantial probative weight to the medical evidence of record that supports a 20 percent evaluation based on multiple audiology diagnostic studies. The Veteran's lay evidence similarly does not support a higher evaluation in this period. Since the preponderance of the evidence is against the claim, the provisions of 38 U.S.C. § 5107(b) regarding reasonable doubt are not applicable. The Veteran's claim of entitlement to a rating in excess of 20 percent for bilateral hearing loss must be denied. ORDER Entitlement to an initial compensable rating for bilateral hearing loss prior to May 2, 2008, to a rating in excess of 10 percent for bilateral hearing loss from May 2, 2008, to November 15, 2009, and to a rating in excess of 20 percent for bilateral hearing loss from November 16, 2009, to August 26, 2015 is denied. ____________________________________________ B. MULLINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs