Citation Nr: 1800717	
Decision Date: 01/05/18    Archive Date: 01/19/18

DOCKET NO.  16-02 581	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas


THE ISSUES

1.  Entitlement to a rating in excess of 50 percent for bilateral hearing loss disability.

2.  Entitlement to a rating in excess of 20 percent for benign prostatic hypertrophy disability.


REPRESENTATION

The Veteran represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

K. Foster, Associate Counsel


INTRODUCTION

The Veteran served on active duty from May 1949 to May 1961 and from May 1961 to October 1972.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2015 rating decision of the Wichita, Kansas Regional Office (RO) of the Department of Veterans Affairs (VA).

It appears that the Veteran may have been attempting to request reevalulation of his other service-connected disabilities, based on statements made in his June 2015 notice of disagreement (NOD) and January 2016 VA Form 9.  The RO should take all appropriate action.

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).


FINDINGS OF FACT

1.  The evidence of record shows that the Veteran's bilateral hearing loss disability was manifested by no more than level XI hearing acuity for the right ear, and level VI hearing acuity for the left ear.

2.  The evidence of record shows that the voiding dysfunction causes increased urinary frequency of daytime voiding interval between 1 and 2 hours and nighttime awakening to void 3 to 4 times.


CONCLUSIONS OF LAW

1.  The criteria for a rating in excess of 50 percent for bilateral hearing loss disability have not been met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100 (2017). 
2.  The criteria for a rating in excess of 20 percent for benign prostatic hypertrophy have not been met.  38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.10, 4.115a, 4.115b, Diagnostic Code 7527 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

VA's Duties to Notify and to Assist

With respect to the issues herein, VA has met all statutory and regulatory notice and duty to assist provisions.  See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326; see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).

Legal Criteria and Analysis

A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4.  The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations.  Separate diagnostic codes identify the various disabilities.  38 U.S.C. § 1155; 38 C.F.R. § 4.1.

Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating; otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the veteran.  38 C.F.R. § 4.3.

The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings."  Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).  In the present case, the Board finds that the disability picture has not significantly changed for either disability during the appeal period and uniform ratings are warranted.

The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment.  38 C.F.R. § 4.10.

The Board has thoroughly reviewed all the relevant evidence.  Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted by or on behalf of the Veteran.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence).  The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim.  The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein.  See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran).

I.  Bilateral Hearing Loss Disability

The Veteran seeks a higher rating for his bilateral hearing loss disability, which is currently rated at 50 percent disabling.  Evaluations for defective hearing are based upon organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests, along with the average hearing threshold level as measured by puretone audiometric tests in the frequencies of 1000, 2000, 3000, and 4000 Hertz.  38 C.F.R. § 4.85, Tables VI, VII.  To evaluate the degree of disability for service-connected bilateral hearing loss, the rating schedule establishes eleven auditory acuity levels, designated from level I for essentially normal acuity, through level XI for profound deafness.  Table VI is used to determine the Roman numeric designation, based on test results consisting of puretone thresholds and Maryland CNC test speech discrimination scores.  The numeric designations are then applied to Table VII to determine the appropriate rating for hearing impairment.  Id.  

Where there is an exceptional pattern of hearing impairment, a rating based on puretone thresholds alone may be assigned (Table VIA).  This alternative method for rating hearing loss disability may be applied if the puretone thresholds at 1000, 2000, 3000, and 4000 Hertz are all at 55 decibels or higher, or if the puretone threshold at 1000 Hertz is 30 or less and at 2000 Hertz is 70 or more.  38 C.F.R. § 4.86.  Each ear is to be evaluated separately under this part of the regulations.

Ratings for hearing impairment are 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 (1992).

The evidence reflects that the Veteran was seen for a hearing evaluation at a VA facility in January 2015 and reported that his hearing aids were broken and no longer functioning.  Air conduction testing was performed with the following evaluations:




HERTZ



500
1000
2000
3000
4000
RIGHT
60
55
75
95
100
LEFT
50
45
65
95
95

The average of the puretone thresholds findings at 1000, 2000, 3000, and 4000 Hertz was 81 decibels in the right ear, and 75 decibels in the left ear.  Speech audiometry revealed speech recognition ability of 12 percent in the right ear and of 72 percent in the left ear, however, it is not clear that these determinations were made using the Maryland CNC word list.  However, because the examination was conducted by the VA, the Board will assume that it is usable for rating purposes.

Applying the test results, rounding up, of this VA audiometric examination to Table VI of the Rating Schedule results in a Roman numeric designation of level XI for the right ear, and level VI for the left ear.  38 C.F.R. § 4.85, Table VI.  Applying the Roman numeric designations to Table VII, the result is a 50 percent disability rating for the Veteran's service-connected bilateral hearing loss.  38 C.F.R. § 4.85, Table VII, Diagnostic Code 6100.

Because the puretone thresholds for each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more for the Veteran's right ear, numeric designation of hearing impairment may also be considered under Table VIa.  Under this Table, the Roman numeric designation is VII.  However, because this Roman numeral designation is lower than that under Table VI, it will not be used.  See 38 C.F.R. § 4.86 (a).

On the authorized audiological evaluation in April 2015, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
60
55
75
95
105
LEFT
55
50
70
95
95

The average of the puretone thresholds findings at 1000, 2000, 3000, and 4000 Hertz was 83 decibels in the right ear, and 78 decibels in the left ear, rounding up.  The speech recognition scores on the Maryland CNC word list were 8 percent in the right ear and 72 percent in the left ear.

The examiner noted that functional impairments included reports that the Veteran had difficulty hearing and understanding, especially in background noise.

Applying the test results, rounding up, of this VA audiometric examination to Table VI of the Rating Schedule results in a Roman numeric designation of level XI for the right ear, and level VI for the left ear.  38 C.F.R. § 4.85, Table VI.  Applying the Roman numeric designations to Table VII, the result is a 50 percent disability rating for the Veteran's service-connected bilateral hearing loss.  38 C.F.R. § 4.85, Table VII, Diagnostic Code 6100.

Because the puretone thresholds for each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more for the Veteran's right ear, numeric designation of hearing impairment may also be considered under Table VIa.  Under this Table, the Roman numeric designation is VII.  However, because this Roman numeral designation is lower than that under Table VI, it will not be used.  See 38 C.F.R. § 4.86 (a).

A VA treatment record from October 2015 states that the Veteran reported that he could not hear out of his left hearing aid.  It reports that the tubing was replaced and he could hear fine.

A VA treatment record from January 2016 notes that the Veteran's hearing loss is "stable."

Upon careful review of the evidence of record, the Board finds that the rating criteria for a disability rating in excess of 50 percent for his bilateral hearing loss disability have not been met during the appeal period.

The Board has considered the lay statements provided by the Veteran, including his contention that the hearing test does not adequately portray the severity of his condition due to its having been conducted in the sterile quiet of an audiology booth, and not in the aspect of normal, daily life.  As was indicated above, rating a hearing loss disability involves the mechanical application of rating criteria to the results of specified audiometric studies.  Both the January 2015 and April 2015 examinations indicate a rating of 50 percent.

The probative medical evidence does not show the Veteran's hearing loss disability has ever reached a disability rating in excess of 50 percent level during the appeal period.  In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine; as the preponderance of the evidence is against the assignment of a rating higher than 50 percent, that doctrine is not applicable.  See 38 U.S.C. § 5107 (b).

Therefore, entitlement to a disability rating in excess of 50 percent for bilateral hearing loss disability is denied.


II.  Benign Prostatic Hypertrophy Disability

The Veteran seeks a higher rating for his benign prostatic hypertrophy disability, which is currently rated at 20 percent disabling.  The Veteran's benign prostatic hypertrophy is rated under Diagnostic Code 7527, which evaluates prostate gland injuries, infections, hypertrophy and postoperative residuals, and directs that they are evaluated as voiding dysfunction or urinary tract infection, whichever is dominant.  38 C.F.R. § 4.115b, Diagnostic Code 7527.

During the period on appeal, the Veteran's treatment records are silent as to treatment of urinary tract infections and the Veteran has not claimed urinary tract infections as the reason for his request for an increase.  Therefore, the Board will apply the rating criteria for voiding dysfunction, as this is the Veteran's dominant disability.  In addition, the Board notes that in order to achieve a higher rating under the rating criteria for urinary tract infection, the Veteran must show that he has had urinary infections requiring drainage, hospitalization, or continuous intensive management.  38 C.F.R. § 4.115a.  However, there is no evidence or assertion that the Veteran has had these symptoms, therefore, he would not be entitled to a higher rating under these criteria, even if applied.

Voiding dysfunction is rated as either urine leakage, frequency, or obstructed voiding.  38 C.F.R. § 4.115a.  A 20 percent rating is warranted for voiding dysfunction where the disorder requires the wearing of absorbent materials which must be changed less than twice a day.  Id.  A 40 percent rating requires the wearing of absorbent materials which must be changed two to four times per day.  Id.

The criteria for urinary frequency allow for 20 percent rating when there is a daytime voiding interval between one and two hours, or; awakening to void three to four times per night.  38 C.F.R. § 4.115a.  A daytime voiding interval of less than one hour, or; awakening to void five times per night warrants a 40 percent rating.  Id.

The highest available rating for obstructed voiding is a 30 percent rating warranted for urinary retention requiring intermittent or continuous catheterization.  Id.

April 2014 VA treatment records indicate that the Veteran was hospitalized for bladder tumor and subsequent surgery.  Treatment records indicate that a catheter was used.

VA treatment records from April and May 2014 note that the Veteran denied any voiding problems.

A VA treatment record from December 2014 states that the Veteran is "urinating ok."

In a March 2015 VA examination, the examiner diagnosed the Veteran with erectile dysfunction (noted as being due to age) and prostate gland injuries, infections, hypertrophy, post-operative residuals.  The Veteran reported the following: that his prostate goes up and down in size; that he takes two pills for urinary symptoms; that he has to take antibiotics at times because of his enlarged prostate; that he takes Cipro for thirty days; that in 2014 he was diagnosed and treated for bladder cancer and had chemotherapy for six weeks and he gets checked every three months by a urologist.  The Veteran reported no renal dysfunction due to his condition.

The examiner noted a voiding dysfunction, the etiology being his benign prostatic hypertrophy.  The voiding dysfunction causes urine leakage, but does not require the wearing of absorbent material or the use of an appliance.  The voiding dysfunction causes increased urinary frequency of daytime voiding interval between 1 and 2 hours and nighttime awakening to void 3 to 4 times.  The voiding dysfunction also causes signs and symptoms of obstructed voiding, including slow stream and decreased force of stream with the force of the stream being markedly decreased.  There were no other obstructive symptoms noted.

The examiner indicated that the Veteran does not have the following: retrograde ejaculation; a history of chronic epididymitis, epididymo-orchitis, or prostatitis; benign or malignant neoplasm or metastases related to any of the diagnose; scars (surgical or otherwise) related to any of the diagnoses; or any other pertinent physical findings, complications, conditions, signs or symptoms.  The examiner indicated that the Veteran's conditions do not impact his ability to work.

In a June 2015 VA treatment record the Veteran indicated that he is "urinating ok."

After reviewing the evidence of record the Board finds a 20 percent rating to be in order for benign prostatic hypertrophy for the period on appeal.  At the March 2015 VA examination, the Veteran reported that his voiding dysfunction causes urine leakage, but does not require the wearing of absorbent material or the use of an appliance.  Because the Veteran does not require the use of absorbent materials or an appliance, he does not qualify for a higher rating for urine leakage.

In addition, the March 2015 examination indicated that the voiding dysfunction causes increased urinary frequency of daytime voiding interval between 1 and 2 hours and nighttime awakening to void 3 to 4 times, which warrants a 20 percent rating under 38 C.F.R. § 4.115a. 

The March 2015 noted signs and symptoms of obstructed voiding, but in order to reach a higher rating under the obstructed voiding criteria, the evidence must show that the urinary retention is such that it requires intermittent or continuous catheterization.  While the April 2014 VA treatment records indicate that the Veteran was hospitalized for bladder tumor and subsequent surgery, and that catheter was used at this time, the evidence does not show, and the Veteran has not argued, that he requires intermittent or continuous catheterization.

The preponderance of the evidence does not show that a rating higher than 20 percent is warranted during the period on appeal.  The competent evidence of record does not indicate that the Veteran requires the wearing of absorbent materials, that he has daytime voiding intervals of less than one hour or awakens to void five or more times per night, or has urinary retention requiring intermittent or continuous catheterization.  As none of these symptoms have been shown on examination, in the Veteran's medical treatment records, or in the Veteran's own lay statements, a rating higher than 20 percent cannot be assigned.  See 38 C.F.R. § 4.115a.

In sum, the Board finds that a 20 percent rating, but no higher, is warranted for benign prostatic hypertrophy during the period on appeal.  In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine; as the preponderance of the evidence is against the assignment of a rating higher than 20 percent, that doctrine is not applicable.  See 38 U.S.C. § 5107 (b).

Therefore, entitlement to a disability rating in excess of 20 percent for benign prostatic hypertrophy disability is denied.


ORDER

Entitlement to a disability rating in excess of 50 percent for bilateral hearing loss disability, is denied.

Entitlement to a disability rating in excess of 20 percent for benign prostatic hypertrophy disability, is denied.




____________________________________________
E. I. VELEZ
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs