Citation Nr: 1759945	
Decision Date: 12/22/17    Archive Date: 01/02/18

DOCKET NO.  12-35 554	)	
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Phoenix, Arizona


THE ISSUE

Entitlement to a compensable rating for bilateral hearing loss. 


REPRESENTATION

Veteran represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

C. Bates, Associate Counsel


INTRODUCTION


The Veteran served on active duty from October 1960 to October 1981.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona.  In May 2017, the Board remanded the claim for additional development.

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

Although audiometric findings indicate that the Veteran's hearing loss has been manifested by Level "II" hearing in his right ear, his left ear has only been manifested by Level "I" hearing.


CONCLUSION OF LAW

The criteria for a compensable rating for bilateral hearing loss have not been met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.321, 4.3, 4.7, 4.85, Diagnostic Code 6100 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran seeks a compensable rating for bilateral hearing loss.  Disability ratings for hearing loss are assigned pursuant to the rating schedule set forth in 38 C.F.R. § 4.85, Diagnostic Code 6100.  An examination for hearing impairment for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a puretone audiometric test.  Examinations will be conducted without the use of hearing aids.  See 38 C.F.R. § 4.85.  Evaluations of defective hearing are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered.  See Lendenmann v. Principi, 3 Vet. App. 345 (1993).

Hearing impairment is determined by averaging the hearing impairment at each of the four designated frequencies (1000, 2000, 3000, 4000 Hertz).  See 38 C.F.R. § 4.85.  This results in a Puretone Threshold Average for each ear.  See id.  The Puretone Threshold Average is charted, in conjunction with the Speech Discrimination Percentage for that ear, in Table VI of 38 C.F.R. § 4.85.  Id.  This results in a score, expressed as a Roman numeral, for each ear.  Id.  The Roman numeral scores for both ears are then charted in Table VII of 38 C.F.R. § 4.85 and the intersection of the scores provides the percentage of disability.  Id.  

Exceptional patterns of hearing impairment, which cannot always be accurately assessed under the standards of 38 C.F.R. § 4.85, may be evaluated under the provisions of 38 C.F.R. § 4.86.  These provisions apply when either the puretone threshold at each of the four specified frequencies is 55 decibels or more, 38 C.F.R. § 4.86(a), or when the puretone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz.  See 38 C.F.R. § 4.86(b).  The Roman numeral designation for the ear with an exceptional pattern of hearing impairment is derived from Table VI or VIa, whichever results in the higher numeral.  When 38 C.F.R. § 4.86(b) is applicable, the assigned numeral is elevated to the next higher Roman numeral.  See id.  Table VIa will also be applied when an examiner certifies that the use of the speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc.  See 38 C.F.R. § 4.86(c).

During the pendency of his claim, the Veteran has received VA audiology examinations in August 2009, July 2012, and June 2017.  The Board observes that the Veteran's other treatment records do not indicate more severe disability than the VA examinations of record.  See, e.g., Private Treatment Records, 4 (July 28, 2009).  The Board also observes that the Veteran has not contested the validity of the puretone audiometric findings provided by his various VA examinations and has not raised that more appropriate records exist for rating purposes.  See Appellate Brief, 1-4 (Nov. 30, 2017).  In the absence of remarkable evidence to the contrary, the Board will focus its analysis on the audiometric findings from the Veteran's August 2009, July 2012, and June 2017 VA examinations. 

Considered in a light most favorable to the Veteran, the August 2009 testing showed the following audiometric findings, with puretone thresholds in decibels as follows:


HERTZ 
CNC

500
1000
2000
3000
4000
%
RIGHT
20
25
50
70
75
96
LEFT
20
15
30
70
70
96









These findings do not constitute exceptional patterns of hearing impairment.  See 38 C.F.R. § 4.86.  Charting the August 2009 audiology results against Table VI indicates a numeric designation of "I" for each ear.  Charting these findings against Table VII, results in a noncompensable rating.  See 38 C.F.R. § 4.85.  Accordingly, a higher rating may not be assigned based on these results. 

Considered in a light most favorable to the Veteran, the July 2012 testing showed the following audiometric findings, with puretone thresholds in decibels as follows:


HERTZ 
CNC

500
1000
2000
3000
4000
%
RIGHT
30
30
65
80
80
96
LEFT
35
25
35
80
80
96









These findings do not constitute exceptional patterns of hearing impairment.  See 38 C.F.R. § 4.86.  Charting the July 2012 audiology results against Table VI indicates a numeric designation of "II" in the right ear and a numeric designation of "I" in the left ear.  Charting these findings against Table VII, results in a noncompensable rating.  See 38 C.F.R. § 4.85.  Accordingly, a higher rating may not be assigned based on these results. 

Considered in a light most favorable to the Veteran, the June 2017 testing showed the following audiometric findings, with puretone thresholds in decibels as follows:


HERTZ 
CNC

500
1000
2000
3000
4000
%
RIGHT
15
10
50
60
70
100
LEFT
5
5
45
70
80
94









These findings do not constitute exceptional patterns of hearing impairment.  See 38 C.F.R. § 4.86.  Charting the June 2017 audiology results against Table VI indicates a numeric designation of "I" for each ear.  Charting these findings against Table VII, results in a noncompensable rating.  See 38 C.F.R. § 4.85.  Accordingly, a higher rating may not be assigned based on these results. 

Based on all audiometric findings of record during the pendency of his appeal, the Board finds that the Veteran has not met the schedular criteria to warrant a compensable rating for bilateral hearing loss.  See 38 C.F.R. § 4.85, Diagnostic Code 6100; see also Fenderson v. West, 12 Vet. App. at 126-127 (1999); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990).





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ORDER

A compensable rating for bilateral hearing loss is denied. 



____________________________________________
MICHAEL E. KILCOYNE
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs