Citation Nr: 1759167	
Decision Date: 12/20/17    Archive Date: 12/28/17

DOCKET NO.  13-34 115A	)	DATE
	)
	)


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


THE ISSUE

Entitlement to a compensable disability rating prior to July 16, 2015, and a rating in excess of 10 percent thereafter for service-connected bilateral hearing loss.


REPRESENTATION

Appellant represented by:	Vietnam Veterans of America


ATTORNEY FOR THE BOARD

R. Dean, Associate Counsel





INTRODUCTION

The Veteran served on active duty in the U.S. Marine Corps from May 1967 to May 1971.

This matter is before the Board of Veterans' Appeals (Board) on appeal from a January 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO).

In June 2015, the Board remanded the claim for further development.

On remand, the RO increased the Veteran's rating for bilateral hearing loss to 10 percent, effective July 16, 2015.  As the increased rating is less than the maximum under the applicable criteria, the claim remains on appeal.  See AB v. Brown, 6 Vet. App. 35, 38 (1993).  The Board has characterized the issue accordingly.


FINDINGS OF FACT

1.  Prior to July 16, 2015, the Veteran's bilateral hearing loss was manifested by auditory acuity no worse than Level IX in the left ear and Level I in the right ear.

2.  From July 16, 2015, the Veteran's bilateral hearing loss has been manifested by auditory acuity no worse than Level IX in the left ear and Level II in the right ear.


CONCLUSION OF LAW

The criteria for a compensable disability rating prior to July 16, 2015 and a rating in excess of 10 percent from July 16, 2015 for service-connected bilateral hearing loss have not been met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.385, 4.1, 4.2, 4.3, 4.6, 4.7, 4.85, 4.86, Diagnostic Code 6100 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  Duties to Notify and Assist

Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist.  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).

II.  Analysis

By filing a claim for an increased rating in January 2012, the Veteran sought to have his noncompensable disability rating for bilateral hearing loss increased.  The RO denied this claim in January 2013 and the Veteran appealed.  In June 2015, the Board remanded with instructions for the RO to administer a new VA examination.  The examination was conducted in July 2015 and, based on the results, the RO subsequently increased the Veteran's disability rating to 10 percent.  For the reasons discussed below, the Board denies entitlement to a compensable rating prior to July 16, 2015 and a rating in excess of 10 percent from that date.

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule).  38 C.F.R. Part 4.  The Rating Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service.  The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations.  See 38 U.S.C. § 1155; 38 C.F.R. § 4.1.

Evidence to be considered in the appeal of an assignment of a disability rating is not limited to that reflecting the then current severity of the disorder.  Fenderson v. West, 12 Vet. App. 119 (1999).  In cases where a disability evaluation has been disagreed with, it is possible for a veteran to receive a staged rating; that is, be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period.  Fenderson, 12 Vet. App. at 126-28; see also Hart v. Mansfield, 21 Vet. App. 505 (2007).

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 the higher rating; otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  All reasonable doubt is resolved in the Veteran's favor.  38 C.F.R. § 4.3.  In cases where the evaluation of hearing loss is at issue, an examination for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a pure tone audiometry test.  Examinations will be conducted without the use of hearing aids.  38 C.F.R. § 4.85(a).

The horizontal lines in Table VI (in 38 C.F.R. § 4.85) represent nine categories of the percentage of discrimination based on the controlled speech discrimination test.  The vertical columns in Table VI represent nine categories of decibel loss based on the pure tone audiometry test. 

The numerical designation of impaired efficiency (I through XI) will be determined for each ear by intersecting the horizontal row appropriate for the percentage of discrimination and the vertical column appropriate to pure tone decibel loss.  For example, with the percentage of discrimination of 70 and an average pure tone decibel loss of 64, the numeric designation level is 'V' for one ear.  The same procedure will be followed for the other ear.  38 C.F.R. § 4.85(b).

The percentage evaluation will be found from Table VII (in 38 C.F.R. § 4.85) by intersecting the horizontal row appropriate for the numeric designation for the ear having the better hearing and the vertical column appropriate to the numeric designation level for the ear having the poorer hearing.  For example, if the better ear has a numeric designation level of 'V,' and the poorer ear has a numeric designation level of 'VII,' the percentage evaluation is 30 percent.  38 C.F.R. § 4.85(e).

Additionally, an alternate rating table (Table VIA) may be used for "unusual patterns of hearing impairment," including cases where the pure tone thresholds at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) are 55 decibels or more, or where the pure tone thresholds are 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz.  38 C.F.R. § 4.86.

The Board has reviewed all evidence in the claims file, 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 of record.  Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).  The Board will summarize the relevant evidence as appropriate and the analysis will focus on what the evidence shows, or fails to show, as to the claim.

Turning to the evidence of record, from July 16, 2015, the Veteran's bilateral hearing loss is rated as 10 percent disabling.  On the authorized audiological evaluation on July 16, 2015, pure tone thresholds, in decibels, were as follows:



HERTZ


1000
2000
3000
4000
RIGHT
35
55
65
70
LEFT
90
90
95
95

Speech audiometry revealed speech recognition ability of 88 percent in the right ear and of 80 percent in the left ear.  The examiner opined that the Veteran's hearing loss impeded his ability to work in his prior employment as a UPS driver by making it difficult to communicate with clients, and that it could make it dangerous for the Veteran to drive.

The average pure tone thresholds were 56 decibels in the right ear and 93 decibels in the left ear.  Applying Table VI to the speech recognition ability and puretone results reveals hearing impairment of II for the right ear and V in the left ear.

The left ear meets the criteria for an exceptional pattern of hearing loss because the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more.  In such cases the rating specialist applies the veteran's data to Table VIA and determines the Roman numeral designation as whichever results in the higher numeral.  38 C.F.R. § 4.86.  In this case, Table VIA reveals hearing impairment of IX for the left ear.  Entering the category designations of II for the right ear and IX for the left ear into Table VII results in a 10 percent evaluation under Diagnostic Code 6100.  See 38 C.F.R. § 4.85.

In a statement filed in June 2014, the Veteran's representative argued that the Veteran should have been granted a compensable disability rating percent earlier in this process.  However, the Veteran's earlier test results did not warrant a higher rating.

On the authorized audiological evaluation in December 2012, pure tone thresholds, in decibels, were as follows:



HERTZ


1000
2000
3000
4000
RIGHT
40
50
60
70
LEFT
95
75
100
100

Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 96 percent in the left ear.  The Veteran also told the examiner that he had great difficulty understanding speech, particularly in noisy environments, using the phone, and watching and understanding speech on television.

The average pure tone thresholds were 55 decibels in the right ear and 92 decibels in the left ear.  Applying Table VI to the speech recognition ability and puretone results reveals hearing impairment of I for the right ear and III in the left ear.
In this evaluation as well, the left ear met the criteria for an exceptional pattern of hearing loss because the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) was 55 decibels or more.  Applying Table VIA reveals hearing impairment of IX for the left ear.  Entering the category designations of I for the right ear and IX for the left ear into Table VII results in a noncompensable evaluation under Diagnostic Code 6100.  See 38 C.F.R. § 4.85.

The private audiological evaluation in March 2011 did not include a speech recognition test.  Although puretone threshold results in the left ear met the criteria under 38 C.F.R. § 4.86(a) for evaluation under Table VIA, based just on puretone thresholds, the puretone threshold results in the right ear did not meet the criteria for evaluation under Table VIA.  Therefore, the March 2011 audiometry results are not adequate to evaluate the condition under the relevant rating criteria.  See 38 C.F.R. §§ 4.85, 4.86.

Turning to the Veteran's contentions, the Veteran is competent, as a layperson, to report on that as to which he has personal knowledge, such as difficulty hearing.  38 C.F.R. § 3.159(a)(2); see Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303, 310 (2007).  Nevertheless, as a layperson, without the appropriate medical training and expertise, he is not competent to provide a probative opinion on a medical matter, especially the severity of his bilateral hearing loss disability in terms of the applicable rating criteria.  Rather, this necessarily requires appropriate medical findings regarding the extent and nature of his bilateral hearing loss, including pure tone audiometry testing.  Therefore, although the Board finds the Veteran's statements regarding his hearing to be credible, the VA audiological examination results are more probative for purposes of rating the disability.  See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).

After a review of the evidence of record, there are no pure tone audiometry test results indicating that a compensable disability rating prior to July 16, 2015, or a rating in excess of 10 percent thereafter, is warranted.  Ratings for hearing loss are determined by a mechanical application of the pure tone audiometry findings to the rating provisions and the Board is constrained by the applicable laws and regulations.  See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992).  Accordingly, the Board finds that the preponderance of the evidence is against the appellant's claim.  Consequently, the benefit-of-the-doubt rule is not applicable, and the claim for entitlement to a compensable disability rating for bilateral hearing loss prior to July 16, 2015, and to a rating in excess of 10 percent thereafter is denied.  38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).  


ORDER

Entitlement to a compensable disability rating for bilateral hearing loss prior to July 16, 2015, and a rating in excess of 10 percent from that date is denied.



____________________________________________
M. SORISIO
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs