Citation Nr: 1756935	
Decision Date: 12/08/17    Archive Date: 12/15/17

DOCKET NO.  14-16 891	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Oakland, California


THE ISSUE

Entitlement to an initial compensable disability rating for a bilateral hearing loss disability.  


REPRESENTATION

Veteran represented by:	The American Legion


ATTORNEY FOR THE BOARD

L. Bristow Williams, Associate Counsel


INTRODUCTION

The Veteran served on active duty from July 1943 to December 1953. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California.

In November 2016 and August 2017, the Board remanded the appeal for further development.

In a May 2017 rating decision, the RO granted the Veteran an increased rating of 10 percent disabling, effective February 15, 2017, for his bilateral hearing loss.

Although a claimant will generally be presumed to be seeking the maximum benefit allowed by law and regulation, such a claimant may "limit a claim or appeal to the issue of entitlement to a particular disability rating which is less than the maximum disability rating allowed by law" via "clearly expressed intent to limit the appeal to entitlement to a specific disability rating for the service-connected condition."  AB v. Brown, 6 Vet. App. 35, 39 (1993) (citing Hamilton v. Brown, 4 Vet. App. 528, 544 (1993)).  In his July 2013 Notice of Disagreement, the Veteran clearly indicated that he sought a 10 percent initial evaluation for his bilateral hearing loss disability.  In this connection, the issue currently before the Board is as reflected on the title page.  Based on the evidence discussed below, the Board is granting the benefit sought on appeal in full. 

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  38 U.S.C. § 7107(a)(2) (2012).


FINDING OF FACT

During the period under review, the Veteran's bilateral hearing loss disability was productive of no worse than Level IV acuity in both ears.




CONCLUSION OF LAW

Resolving reasonable doubt in the favor of the Veteran, the criteria for a 10 percent initial disability rating for bilateral hearing loss are met.  38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.85, 4.86, Diagnostic Code 6100 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

With respect to the Veteran's claim decided herein, no notice or duty to assist deficiencies have been alleged by the Veteran or his representative.  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 a duty to assist argument).

Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 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 the residual conditions in civilian occupations.  38 U.S.C. § 1155; 38 C.F.R. § 4.1.  Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating.  Otherwise the lower rating will be assigned.  38 C.F.R. § 4.7.  All benefit of the doubt will be resolved in the Veteran's favor.  38 C.F.R. § 4.3.

In evaluating hearing loss, disability ratings are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are performed.  See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992).  Hearing loss disability evaluations range from noncompensable (zero percent) to a maximum 100 percent based on organic impairment of hearing acuity, as measured by controlled speech discrimination tests (Maryland CNC) in conjunction with the average hearing threshold, as measured by pure tone audiometric tests in the frequencies 1000, 2000, 3000, and 4000 cycles per second (Hertz).  The rating schedule establishes eleven auditory acuity levels, designated from Level I for essentially normal hearing acuity through Level XI for profound deafness.  VA audiometric examinations are conducted using a controlled speech discrimination test together with the results of a pure tone audiometry test.  Under 38 C.F.R. §§ 4.85, the vertical lines in Table VI represent nine categories of the percentage of discrimination based on the controlled speech discrimination test.  The horizontal columns in Table VI represent nine categories of decibel loss based on the pure tone 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 pure tone decibel loss.

The percentage evaluation is determined 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 to the numeric designation for the ear having the poorer hearing acuity.  In order to establish entitlement to a compensable rating for hearing loss, it must be shown that certain minimum levels of the combination of the percentage of speech discrimination loss and average pure tone decibel loss are met. 

The provisions of 38 C.F.R. § 4.86(a) pertaining to exceptional patterns of hearing impairment provide that, when the pure tone 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.  

Also, the provisions of 38 C.F.R. § 4.86(b) pertaining to exceptional patterns of hearing impairment provide that, when the pure tone threshold is 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.  That numeral will then be elevated to the next higher Roman numeral.  Each ear will be evaluated separately.  As shown below, the Veteran has demonstrated an exceptional pattern of hearing impairment at different times throughout his appeal, and is rated accordingly.  

In Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007), the United States Court of Appeals for Veterans Claims (Court) held that relevant to VA audiological examinations, 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. 

Although all of the evidence has been reviewed, only the most relevant and salient evidence is discussed below.  See Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000) (holding that the Board must review the entire record but does not have to discuss each piece of evidence).

The Veteran alleges that his bilateral hearing loss entitled him to an initial compensable rating prior to February 15, 2017.  In support of his claim, he has submitted private audiology examinations dated May 2011, April 2012, and January 2013. 

In its August 2017 decision, the Board remanded the Veteran's claims, in pertinent part, to clarify which type of speech discrimination testing was utilized during these private audiology examinations.  While the AOJ failed to obtain this information as requested in the August 2017 Board decision, nonetheless, as the decision herein grants the benefit to the extent sought (a 10 percent initial rating), no further action to ensure compliance with the remand directives is required.  Stegall v. West, 11 Vet. App. 268 (1998); see also Bernard v. Brown, 4 Vet. App. 384 (1993).




	(CONTINUED ON NEXT PAGE)
The Veteran underwent a private audiology examination in May 2011.  His pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
35
50
60
50
65
LEFT
40
55
65
50
75

The average pure tone threshold was 56 in the right ear and 61 in the left ear.  His speech discrimination score was 60 percent in the right ear and 60 percent in the left ear; however, it is unclear which testing method was used.  

During the examination, the examiner described the functional effects of the Veteran's hearing loss on his daily activities.  38 C.F.R. § 4.10 (2016); see also Martinak v. Nicholson, 21 Vet. App. 447, 455-56 (2007).  Specifically, she stated that the Veteran had communicative difficulties and felt that his hearing had diminished.  

As no exceptional pattern of hearing loss is reflected by the examination, the Board is unable to determine the Veteran's disability rating based on this test alone.  Table VI requires the application of both the pure tone threshold average and the Maryland CNC speech discrimination score result.  As it was unclear which speech discrimination test method was used, Table VI cannot be utilized in this case.  Also, Table VIa is only used when an exceptional pattern of hearing loss is reflected or when the examiner certifies that the use of the speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc., or when indicated under the provisions of 38 C.F.R. § 4.86. See 38 C.F.R. § 4.85(c).  As the examiner has not made this certification, Table VIa is also not applicable.




	(CONTINUED ON NEXT PAGE)
The Veteran underwent another private audiology examination in April 2012.  His pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
45
60 
60
55
65
LEFT
45
60
60
55
70

The Board notes that at the 1000Hz level, the audiologist indicated two values for the right ear, 50dB and 60dB.  Resolving all doubt in the Veteran's favor, the Board will use the higher score for rating purposes.  

The average pure tone threshold was 60 in the right ear and 61 in the left ear.  His speech discrimination score was 84 percent in the right ear and 80 percent in the left ear; however, the CID W22 word list testing method was utilized.  As the Maryland CNC was not the utilized testing method, the Veteran's speech discrimination score cannot utilized.  

However, the rating criteria provides for rating exceptional patterns of hearing impairment under the provisions of 38 C.F.R. § 4.86 when a Veteran's audiological test results demonstrate a pure tone threshold of 55 decibels or more in all four frequencies (1000, 2000, 3000, and 4000 Hertz).  As the Veteran's test results indicate a pure tone threshold of 55 decibels or more in the above stated frequencies in ears, evaluation under 38 C.F.R. § 4.86(a) is warranted.

Table VIa is applicable in this circumstance and reflects that the Veteran had Level IV hearing loss both ears.  Applying Level IV for the right ear and Level IV for the left ear results in a 10 percent disability rating.  38 C.F.R. § 4.85.





	(CONTINUED ON NEXT PAGE)
The Veteran underwent another private audiology examination in January 2013.  His pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
45
55
60
55
65
LEFT
50
60
60
55
70

The average pure tone threshold was 59 in the right ear and 61 in the left ear.  His speech discrimination score was 64 percent in the right ear and 72 percent in the left ear; however, it is unclear which testing method was used.  

As an exceptional pattering of hearing impairment exists, Table VI and Table VIa are applicable.  However, given that the method of speech discrimination testing is unknown, the Veteran's speech discrimination scores will be disregarded and only Table VIa will be utilized.  

Table VIa reflects that the Veteran had Level IV hearing loss in his right ear and Level IV hearing loss in his left ear.  Applying Level IV for the right ear and Level IV for the left ear results in a 10 percent disability rating.  38 C.F.R. § 4.85.  

The Veteran underwent a VA audiology examination in June 2013.  His pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
45
45
55
55
60
LEFT
45
55
60
55
65

The average pure tone threshold was 54 in the right ear and 59 in the left ear.  His Maryland CNC word recognition was 88 percent in the right ear and 92 percent in the left ear.  

During the examination, the audiologist described the functional effects of the Veteran's hearing loss on his daily activities.  38 C.F.R. § 4.10 (2016); see also Martinak v. Nicholson, 21 Vet. App. 447, 455-56 (2007).  Specifically, she stated that the Veteran had difficulty hearing general conversations, including his wife's voice without the use of hearing aids.  

As an exceptional pattering of hearing impairment exists, Table VI and Table VIa are applicable.  Table VI reflects that the Veteran had Level II hearing loss in his right ear and Level II hearing loss in his left ear.  Applying Level II for the right ear and Level II for the left ear results in a noncompensable disability rating.  38 C.F.R. § 4.85.  Table VIa reflects that the Veteran had Level IV hearing loss in his left ear.  Applying Level II for the right ear and Level IV for the left ear results in a noncompensable disability rating.  38 C.F.R. § 4.85.  As the result from both Table VI and Table VIa are the same, the Veteran's hearing loss results in a noncompensable disability rating.  

The Veteran underwent a VA audiology examination in February 2017.  His pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
50
50
60
55
70
LEFT
50
60
60
55
65

The average pure tone threshold was 59 in the right ear and 60 in the left ear.  His Maryland CNC word recognition was 90 percent in the right ear and 86 percent in the left ear.  

As an exceptional pattering of hearing impairment exists, Table VI and Table VIa are applicable.  Table VI reflects that the Veteran had Level III hearing loss in his right ear and Level III hearing loss in his left ear.  Applying Level III for the right ear and Level III for the left ear results in a noncompensable disability rating.  38 C.F.R. § 4.85.  Table VIa reflects that the Veteran had Level IV hearing loss in his left ear.  Applying Level III for the right ear and Level IV for the left ear results in a 10 percent disability rating.  38 C.F.R. § 4.85.  

While the private and VA audiological examination results differ slightly at each audiological examination, all exams consistently show a progression of bilateral hearing loss, with a 10 percent rating (identifiable by valid test results) first manifesting at the time of examination in April 2012.  Indeed, his exceptional patterns of hearing demonstrated from April 2012 on have permitted the Board to utilize the private examination results to evaluate the Veteran's disability, despite not knowing whether the Maryland CNC test was utilized.  As the Veteran has specifically indicated a desire for a 10 percent rating for his hearing loss disability, the award of a 10 percent initial rating warrants a full grant of the benefit sought.  

Based on the test results listed above, the Board resolving all doubt in the Veteran's favor and finds that the Veteran's hearing loss has shown to be so severe as to warrant a 10 percent rating throughout the appeal period.  


ORDER

A 10 percent initial disability rating for bilateral hearing loss is granted. 



____________________________________________
V. CHIAPPETTA
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs