Citation Nr: 1800288	
Decision Date: 01/04/18    Archive Date: 01/19/18

DOCKET NO.  16-42 364	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, Georgia


THE ISSUE

Entitlement to a disability rating in excess of 30 percent for bilateral hearing loss. 


REPRESENTATION

Appellant represented by:	Stacey Penn Clark, Esq. 


ATTORNEY FOR THE BOARD

T. Monrose, Associate Counsel


INTRODUCTION

The Veteran had active duty from October 1952 to January 1979.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia.

In July 2017, the Veteran's representative sent notice to the Board indicating that she would withdraw as representative for the Veteran.  The Board notes that the agency of original jurisdiction certified the appellant's appeal to the Board in September 2016, prior to receipt of the Veteran's representative's letter.  The Veteran's representative did not provide good cause for withdrawal despite notice from the Board that good cause must be shown.  Therefore, the attorney of record remains the Veteran's representative.  

A motion to advance this appeal on the Board's docket has been raised by the Board's Acting Vice Chairman.  The undersigned is granting the motion and advancing the appeal on the docket based upon advanced age.  38 C.F.R. § 20.900(c) ("advanced age" is defined as 75 or more years of age).  


FINDING OF FACT

The Veteran's bilateral hearing loss was manifested, at its worst, by Level VI in the right and Level VII in the left ear.


CONCLUSION OF LAW

The criteria for a disability rating in excess of 30 percent for bilateral hearing loss have not been met. 38 U.S.C. § 1155, 5103, 5103A, 5107 (West 2012); 38 C.F.R. §§ 3.385, 4.1, 4.3, 4.85, 4.86, Tables VI, VIA, and VII, Diagnostic Code 6100 (2017).




REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran contends that he is entitled to a higher rating for his bilateral hearing loss.  For the reasons stated below the Board disagrees. 

The Veteran is currently rated at 30 percent for bilateral hearing loss.  

The assignment of disability ratings for a 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).  The criteria for rating a hearing impairment include using controlled speech discrimination tests (Maryland CNC) together with the results of puretone audiometry tests.  These results are then charted on Table VI and Table VII, as set out in the rating schedule.  38 C.F.R. § 4.85 (2017).  An exceptional pattern of hearing impairment occurs when the puretone threshold at 1000, 2000, 3000, and 4000 Hertz is 55 decibels or more, or when the puretone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz.  38 C.F.R. § 4.86 (2017).  In these cases, the Roman numeral designation for a hearing impairment is determined from either Table VI or Table VIA, whichever results in the higher numeral.  38 C.F.R.  § 4.86(b) (2017). That numeral will then be elevated to the next higher Roman numeral, and then each ear will be evaluated separately.  Id.

The Veteran received an private audiological examination in June 2013.  The puretone threshold average was 48 in the right ear and 52 in the left ear. Id.  Speech recognition testing using the NU-6 word list revealed speech recognition ability of 54 percent in the right ear and 50 percent in the left ear.  Id.  The results of the June 2013 audiological examination may not be relied upon to rate the Veteran's hearing loss disability because the NU-6 word list was used rather than the Maryland CNC word list as required under 38 C.F.R. § 4.85 (2017).

The Veteran subsequently had a VA examination in June 2014.  Puretone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
55
55
55
55
75
LEFT
60
50
60
70
75

The puretone threshold average was 60 in the right ear and 64 in the left ear.  Id.  The Veteran's speech discrimination score (Maryland CNC word test) was 60 percent and 56 percent, in the right and left ear respectfully.  Id.  

These audiometric results equate to Level VI in the right ear and Level VII in the left ear using Table VI.  38 C.F.R. § 4.85 (2017).  The Veteran has an exception pattern of hearing impairment in the right ear because all four frequencies are at 55  decibels or higher.  It is appropriate to consider Table VIA in evaluating the right ear.  A puretone threshold average of 60 results in Level V hearing, which his lower than the numeral using Table VI.  Thus, the Board will apply Level VI under Table VI to evaluate the Veteran's hearing loss in his right ear.  Applying the percentage ratings for hearing impairment found in Table VII, these results warrant a 30 percent disability rating.  38 C.F.R. § 4.85 (2017).  Thus, the Veteran's increased rating claim for bilateral hearing loss is denied.  

In reaching this decision, the Board has considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the appellant's claim, the doctrine is not applicable.  Gilbert v. Derwinski, 1 Vet. 49 (1990).  



ORDER

Entitlement to a disability rating in excess of 30 percent for bilateral hearing loss is denied. 





____________________________________________
R. FEINBERG
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs