Citation Nr: 1800041	
Decision Date: 01/02/18    Archive Date: 01/19/18

DOCKET NO.  14-13 430	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Lincoln, Nebraska


THE ISSUE

Entitlement to a compensable rating for bilateral hearing loss.


REPRESENTATION

Appellant represented by:	National Association of County Veterans Service Officers


ATTORNEY FOR THE BOARD

Amanda Christensen, Counsel



INTRODUCTION

The Veteran had active service from January 1976 to October 1979.

This matter came before the Board of Veterans' Appeals (Board) on appeal from an August 2013 rating decision of the Lincoln, Nebraska Regional Office (RO) of the Department of Veterans Affairs (VA) which denied a compensable rating for bilateral hearing loss.

In December 2015 and July 2016 the Board remanded the appeal for further development.


FINDING OF FACT

The Veteran's bilateral hearing loss is manifest with no worse than level I hearing loss in each ear.


CONCLUSION OF LAW

The criteria for a compensable evaluation for bilateral hearing loss have not been met.  38 U.S.C. § 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 4.1, 4.85, 4.86, Diagnostic Code 6100 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities.  The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations.  Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability.  38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2017).  Separate diagnostic codes identify the various disabilities and the criteria for specific ratings.  

If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7 (2017).  Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran.  38 C.F.R. § 4.3 (2017).  

Hearing Loss

The Veteran contends he is entitled to a compensable rating for his service-connected bilateral hearing loss.

The assignment of disability ratings for service-connected hearing impairment is derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered.  Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992).  Evaluations for defective hearing range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests together with the average hearing threshold level as measured by pure tone audiometry tests in the frequencies 1,000, 2,000, 3,000, and 4,000 Hertz.  

The rating schedule establishes eleven auditory acuity levels designated from level I for essentially normal auditory acuity to level XI for profound deafness.  38 C.F.R. § 4.85 (2017).  Table VI, "Numeric Designation of Hearing Impairment Based on Puretone Threshold Average and Speech Discrimination," is used to determine a Roman numeral designation (I through XI) for hearing impairment based on a combination of the percent of speech discrimination (horizontal rows) and the puretone threshold average (vertical columns).
 
In February 2013 the Veteran underwent private audiological testing, which did not include speech discrimination testing.  The examination showed pure tone thresholds, in decibels, as follows:



HERTZ



1000
2000
3000
4000
RIGHT
35
60
60
55
LEFT
45
55
55
55

The Veteran's July 2013 VA examination showed pure tone thresholds, in decibels, as follows:



HERTZ



1000
2000
3000
4000
RIGHT
30
55
60
60
LEFT
35
50
55
60

His speech discrimination score was 94 bilaterally.  The Veteran stated that he is unable to hear people without reading their lips.  

In February 2014 the Veteran underwent private audiological testing, which did not include speech discrimination testing.  The examination showed pure tone thresholds, in decibels, as follows:



HERTZ



1000
2000
3000
4000
RIGHT
35
60
60
55
LEFT
40
55
55
50


In November 2015 the Veteran underwent private audiological testing, which did not include speech discrimination testing.  The examination showed pure tone thresholds, in decibels, as follows:



HERTZ



1000
2000
3000
4000
RIGHT
40
60
60
55
LEFT
45
55
60
60

The Veteran's January 2016 VA examination showed pure tone thresholds, in decibels, as follows:



HERTZ



1000
2000
3000
4000
RIGHT
30
50
55
60
LEFT
30
45
55
60

His speech discrimination score was 98 percent in the right ear and 100 percent in the left ear.  

In a February 2016 opinion the VA examiner stated that the Veteran reported difficulty understanding conversations in background noise and that he sometimes does not participate in social functions due to his difficulty hearing.  The Veteran also reported that family members complain that the television volume is too loud.

The Veteran's August 2016 VA examination showed pure tone thresholds, in decibels, as follows:



HERTZ



1000
2000
3000
4000
RIGHT
40
60
55
60
LEFT
40
55
50
65

His speech discrimination score was 94 percent in the right ear and 96 percent in the left ear.  The Veteran reported that he does well with the hearing aids in but there are situations at work where he is unable to wear the hearing aids due to an environment that is too dirty or too noisy.  He reported that when he is not wearing hearing aids people have to scream at him, and he reads lips.

Looking at the results of the VA audiological examinations in July 2013, January 2016, and August 2016, a compensable disability rating is not supported.  Applying the results of the July 2013 examination to the regulations shows level I hearing loss bilaterally under Table VI, which equates to a noncompensable rating under Table VII.  Applying the results of the January 2016 and August 2016 examinations to the regulations shows level I hearing loss bilaterally under Table VI, which equates to a noncompensable rating under Table VII.

The Board is unable to apply the results of the private audiological testing to Table VI as speech discrimination testing was not done.  The results of those examinations further cannot be applied to Table VIA as the pure tone thresholds at 1000, 2000, 3000, and 4000 hertz are not all 55 decibels or more nor are the pure tone thresholds 30 decibels or less at 1000 Hz and 70 decibels or more at 2000 Hz.  Similarly, the VA examination audiological results are inapplicable to Table VIA as well for the same reason.  See 38 C.F.R. § 4.86 (2017).

Thus, based on the forgoing, the Board finds that the audiological testing of record does not support a compensable schedular rating for the Veteran's bilateral hearing loss.

While the Board acknowledges the hearing difficulties that the Veteran has reported, including difficulty understanding people speaking to him, especially in noisy environments.  However, the ratings for hearing loss are based on a mechanical application of the tables provided by law.  The Board has no discretion in this matter and must predicate its determination on the basis of the results of the audiology studies of record.  Lendenmann, 3 Vet. App. 345.

The evidence in this case does not show such an exceptional disability picture that the available schedular ratings for the service-connected bilateral hearing loss are inadequate.  A comparison between the levels of severity and symptomatology of the Veteran's disability with the established criteria found in the rating schedule shows that the rating criteria reasonably describe the Veteran's disability levels and symptomatology.  The Veteran's signs and symptoms and their resulting impairment on his daily activities, are contemplated by the rating schedule.  Therefore, those criteria are not inadequate.  See 38 C.F.R. § 3.321(b); Thun v. Peake, 22 Vet. App. 111 (2008).

The Veteran's reported signs and symptoms, and their resulting impairment, are the cardinal symptoms and effects of hearing loss contemplated by the rating schedule. See Doucette v. Shulkin, 28 Vet. App. 366 (2017).  The schedular rating criteria specifically provides for ratings based on all levels of hearing loss as measured by both audiological testing and speech recognition testing.  Speech recognition testing is a schedular rating criterion that recognizes such an inability to understand certain words in conversation.  The testing is to be performed without the use of hearing aids.  See 38 C.F.R. § 4.85(a).  Notably, the Veteran has not reported having dizziness, vertigo, or recurrent loss of balance due to his service-connected hearing loss.  The Veteran's complaints concern diminished auditory acuity and speech recognition.  Diminished auditory acuity and speech recognition testing are the foundation of the schedular criteria.  

Accordingly, the rating criteria contemplate the Veteran's bilateral hearing loss.

As a preponderance of the evidence is against a compensable rating for bilateral hearing loss, the Veteran's claim is denied.

The appellant has not referred to any deficiencies in either the duties to notify or 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 [appellant] 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). Thus, the Board need not discuss any potential issues in this regard.


ORDER

A compensable rating for bilateral hearing loss is denied.



____________________________________________
H. SEESEL
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs