Citation Nr: 1756982	
Decision Date: 12/08/17    Archive Date: 12/15/17

DOCKET NO.  12-13 707	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Hartford, Connecticut



THE ISSUE

Entitlement to a compensable rating for bilateral hearing loss.



REPRESENTATION

Appellant represented by:	Disabled American Veterans



ATTORNEY FOR THE BOARD

N. Staskowski, Associate Counsel




INTRODUCTION

The appellant is a Veteran who served on active duty from October 1969 to May 1971.  This matter is before the Board of Veterans' Appeals (Board) on appeal from a June 2011 rating decision by the Hartford, Connecticut, Department of Veterans Affairs (VA) Regional Office (RO), that granted service connection for bilateral hearing loss, rated 0 percent, effective December 10, 2010.  In January 2014 and June 2017 this matter was remanded for additional development (by a Veterans Law Judge other than the undersigned).


FINDINGS OF FACT

On March 2011 VA audiometry the Veteran's hearing acuity was level I in each ear; on September 2013 audiometry, his hearing acuity was level IV in the right ear and level I in the left; on July 2015 audiometry his hearing acuity was level III in each ear, and on May 2016 audiometry his hearing acuity was level III in each ear.


CONCLUSION OF LAW

A compensable rating for bilateral hearing loss is not warranted.  38 U.S.C.
§§  1155, 5107 (2012); 38 C.F.R. §§ 4.85, 4.86 Diagnostic Code (Code) 6100 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Veterans Claims Assistance Act of 2000 (VCAA)

VA's duty to notify was satisfied by a letter in January 2011.  See 38 U.S.C. §§ 5102, 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017); See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).

All pertinent private and VA records identified are associated with the record.  The Veteran was afforded VA examinations in March 2011, September 2013, July 2015, and May 2016.  A duty to assist omission is not alleged.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) ("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 duty to assist argument).

Legal Criteria, Factual Background, and Analysis

Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule).  The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes.  38 U.S.C. § 1155; 38 C.F.R. § 4.1.  

Ratings of 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 assigned after audiometric evaluations are performed.  See 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 denote profound deafness.  The assignment of the appropriate numeric level is based on the results of a controlled speech discrimination test (Maryland CNC test) in combination with the claimant's average pure thresholds.  The average threshold is obtained from puretone audiometry in the frequencies of 1000, 2000, 3000, and 4000 Hertz (Hz).  38 C.F.R. § 4.85.

Rating specialists use either Table VI or VIa of 38 C.F.R. § 4.85 to determine the correct Roman numeral designation.  Table VIa is employed when the use of speech discrimination tests is inappropriate due to language difficulties, inconsistent speech discrimination scores, etc., or where there is an exceptional pattern of hearing loss (as defined in 38 C.F.R. § 4.86).  One such pattern occurs when the puretone threshold at each of the four specialized frequencies (1000, 2000, 3000, and 4000 Hz.) is 55 decibels or more.  38 C.F.R. § 4.86(a).  Another pattern occurs when the puretone threshold at 1000 Hz is 30 decibels or less and the puretone threshold at 2000 Hz is 70 decibels or more.  38 C.F.R. § 4.86(b).

When the appeal is from the initial rating assigned with an award of service connection, the severity of the disability at issue during the entire period from the initial assignment of the disability rating to the present is to be considered, and a "staged" rating may be assigned based on facts found.  See Fenderson v. West, 12 Vet. App. at 125-26 (1999). 

A claim will be denied only if the preponderance of the evidence is against the claim.  See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990).  Reasonable doubt regarding the degree of disability should be resolved in favor of the claimant.  38 C.F.R. § 4.3.  

The Board notes that it has reviewed all of the evidence in the Veteran's 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.  Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).  Hence, the Board will summarize the relevant evidence, as deemed appropriate, and the Board's analysis will focus specifically on what the evidence shows, or does not show, as to the claim.

On March 2011 VA examination audiometry, puretone thresholds, in decibels, were:




HERTZ



500
1000
2000
3000
4000
RIGHT
35
35
35
65
70
LEFT
10
20
40
60
70

The right ear puretone threshold average was 51 decibels and the left ear puretone threshold average was 48 decibels.  Speech audiometry revealed speech recognition ability of 94 percent in each ear.  The Veteran reported difficulty hearing telephone conversation, and when in groups.
On September 2013 VA examination audiometry, puretone thresholds were:




HERTZ



500
1000
2000
3000
4000
RIGHT
35
40
45
65
65
LEFT
20
25
50
60
65

The right ear puretone threshold average was 54 decibels and the left ear puretone threshold average was 50 decibels.  Speech audiometry revealed speech recognition ability of 80 percent in the right ear and 94 percent in the left ear.  The Veteran reported difficulty hearing his wife and hearing others at his work landscaping. 

On July 2015 VA examination audiometry, puretone thresholds were:




HERTZ



500
1000
2000
3000
4000
RIGHT
45
50
55
70
70
LEFT
30
35
60
65
80

The right ear puretone threshold average was 61 decibels and the left ear puretone threshold average was 60 decibels.  Speech audiometry revealed speech recognition ability of 88 percent in the right ear and 86 percent in the left ear.  The Veteran related that that he has to ask speakers to repeat what was said.

On May 2016 VA examination audiometry, puretone thresholds were:




HERTZ



500
1000
2000
3000
4000
RIGHT
40
50
60
65
65
LEFT
35
35
65
70
75

The right ear puretone threshold average was 60 decibels and the left ear puretone threshold average was 61 decibels.  Speech audiometry revealed speech recognition ability of 88 percent in the right ear and 86 percent in the left.  The Veteran reported difficulty hearing telephone conversations and female voices, and in crowds.  The examiner opined that (due to his hearing loss) the Veteran may have difficulty working in environments with excessive noise levels and in occupations requiring face to face communication.

At the outset, the Board notes that it has found the examinations outlined above adequate for rating purposes.  The audiometry was in accordance with the regulatory requirements, and the examiners elicited from the Veteran, and commented on, information regarding the impact the hearing loss has on his functioning (accepting the reports at face value, and describing the related limitations on occupational functioning.  The Board has no reason to question that the functional limitations from the hearing loss are as the Veteran has reported (and examiners, particularly the May 2016 one, opined), and likewise accepts the descriptions at face value.  However, no audiometry during the period under consideration shows a hearing loss disability of a severity sufficient to warrant a compensable rating under the schedular criteria.  Under 38 C.F.R. § 4.85, Table VII and Code 6100, the March 2011 findings of level I hearing acuity in each ear, the September 2013 findings of level IV hearing acuity in the right ear and level I acuity in the left, the July 2015 findings of level III hearing acuity in each ear, and the May 2016 findings of level III acuity in each ear, each, warrant a 0 percent rating.  None of the examinations found an exceptional pattern of hearing loss, as defined in 38 C.F.R. § 4.86 (so as to warrant rating under the alternate criteria in Table VIA).  While the Veteran's hearing acuity has clearly declined, in each ear, from the time of the initial examination in 2011 to the examinations in July 2015 and May 2016, the severity of his hearing loss disability has not yet risen to a level warranting a compensable rating.  

Regarding the Veteran's assertions that his hearing impairment is greater than reflected by the 0 percent rating assigned, the Board acknowledges that he is competent to testify as to symptoms he experiences, including difficulty hearing soft voices, telephone conversation, and in crowds or with background noise.  However, as a layperson, he is not competent to establish his level of hearing acuity by his own opinion.  See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  Under governing regulation (38 C.F.R. § 4.85) hearing acuity must be established by audiometry specified therein.  The audiometric findings, each, place the Veteran's hearing acuity within the criteria for a 0 percent rating.  The types of impairment he describes (and which the Board accepts as a true reflection of the functional impairment that results from his hearing loss disability), are contemplated by the criteria for the 0 percent schedular rating assigned.  The preponderance of the evidence is against the Veteran's claim.  Therefore, the appeal in this matter must be denied.


ORDER

A compensable rating for bilateral hearing loss is denied.


____________________________________________
GEORGE R. SENYK
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs