Citation Nr: 1758049	
Decision Date: 12/14/17    Archive Date: 12/28/17

DOCKET NO.  12-14 123	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Detroit, Michigan


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 August 1966 to September 1968.  This matter is before the Board of Veterans' Appeals (Board) on appeal from an April 2011 rating decision by the Detroit, Michigan, Department of Veterans Affairs (VA) Regional Office (RO).  In December 2014 and May 2017 this matter was remanded for additional development.


FINDING OF FACT

At no time during the pendency of the claim is the Veteran's hearing acuity shown to have been worse than level III in either 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 FINDING AND CONCLUSION

Veterans Claims Assistance Act of 2000 (VCAA)

VA's duty to notify was satisfied by a letter in September 2010.  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 April 2011, December 2015, and June 2017.  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 entire period from the initial assignment of the disability rating to the present is to be considered, and "staged" ratings may be assigned based on facts found.  See Fenderson v. West, 12 Vet. App. at 125-26 (1999). 

Reasonable doubt regarding the degree of disability should be resolved in favor of the claimant.  38 C.F.R. § 4.3.  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).  

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 May 2010 audiology consultation the Veteran reported bilateral hearing loss with the left ear noted as being worse than the right.  Hearing acuity was described as "normal hearing at 250 and 500 Hz with a mild sloping to severe sensorineural hearing loss from 1000 to 8000 Hz."  Puretone thresholds, in decibels, were:




HERTZ



500
1000
2000
3000
4000
RIGHT

30
40
70
70
LEFT

35
50
75
70

On April 2011 VA examination audiometry, puretone thresholds were:




HERTZ



500
1000
2000
3000
4000
RIGHT

25
35
70
80
LEFT

25
60
70
70
The right ear puretone threshold average was 53 decibels and the left ear puretone threshold average was 56 decibels.  Speech audiometry revealed speech recognition ability of 94 percent in each ear.  

On December 2015 VA examination audiometry, puretone thresholds were:




HERTZ



500
1000
2000
3000
4000
RIGHT

35
50
75
85
LEFT

35
70
80
80

The right ear puretone threshold average was 61 decibels and the left ear puretone threshold average was 66 decibels.  Speech audiometry revealed speech recognition ability of 90 percent in each ear.  The Veteran reported difficulty hearing his wife and neighbor and listens to the television at a loud volume.  

On June 2017 VA examination audiometry, puretone thresholds were:




HERTZ



500
1000
2000
3000
4000
RIGHT

35
50
75
80
LEFT

40
70
80
80

The right ear puretone threshold average was 60 decibels and the left ear puretone threshold was 68 decibels.  Speech audiometry revealed speech recognition ability of 88 percent in the right ear and 90 percent in the left ear.  The Veteran reported difficulty hearing with surrounding noise even with his hearing aids.

No audiometry in accordance with 38 C.F.R. § 4.85 during the period under consideration shows a hearing loss disability of a severity sufficient to warrant a compensable rating under the schedular criteria.  38 C.F.R. § 4.85, Table VII and Code 6100.  April 2011 findings reflect level I hearing acuity in each ear; December 2015 findings show level III hearing acuity in each ear; and the June 2017 findings also show level III hearing acuity in each ear.  The levels of hearing acuity found on each occasion each warrant a 0 percent rating under Table VII.  No examination 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 April 2011 to the examinations in December 2015 and June 2017, 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 notes that he is competent to testify as to symptoms he experiences, including difficulty hearing soft voices, family members, television, and in crowds or with background noise, and to observe his hearing acuity has declined .  However, 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 during the evaluation period, 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 this claim.  Therefore, the appeal in the 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