Citation Nr: 1800757	
Decision Date: 01/05/18    Archive Date: 01/19/18

DOCKET NO.  13-33 688	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Seattle, Washington


THE ISSUE

Entitlement to a compensable initial rating for bilateral hearing loss.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

B. G. LeMoine, Associate Attorney


INTRODUCTION

The Veteran served on active duty from August 27, 1980, to December 13, 1980, from November 2003 to May 2005, and from August 2008 to October 2009.   

This matter comes before the Board of Veterans' Appeals (Board) on appeal of an October 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington.

This case was previously remanded by the Board in July 2016.  A review of the claims file shows that there has been substantial compliance with the Board's remand directives.  See Stegall v. West, 11 Vet. App. 268 (1998).  The case has been returned to the Board for review.

In November 2015, the Veteran testified during a video conference hearing before the undersigned Veterans Law Judge.  A transcript of the hearing is associated with the claims file.

The Board is cognizant of the ruling of the United States Court of Appeals for Veterans Claims (Court) in Rice v. Shinseki, 22 Vet. App. 447 (2009).  In Rice, the Court held that a claim for a total rating based on individual unemployability (TDIU) due to service-connected disability, either expressly raised by the Veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating.  In this case, the Veteran has not argued, and the record does not otherwise reflect, that the disability at issue renders him unemployable.  Accordingly, the Board concludes that a claim for TDIU has not been raised.


FINDING OF FACT

During the period on appeal the Veteran's service-connected bilateral hearing loss was manifested by no more than Level II hearing acuity in the right ear and Level IV hearing acuity in the left ear.  
CONCLUSION OF LAW

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


REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran asserts that his bilateral hearing loss is worse than that contemplated by the assigned disability rating.  

Disability ratings are determined by the application of VA's Schedule for Rating Disabilities (Schedule), which is based on the average impairment of earning capacity.  Separate diagnostic codes identify the various disabilities.  38 U.S.C. § 1155; 38 C.F.R. Part 4.  Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficient to identify the disease and the resulting disability and, above all, coordination of the rating with impairment of function will be expected in all cases.  38 C.F.R. § 4.21; see also Mauerhan v. Principi, 16 Vet. App. 436 (2002).

Ratings for hearing loss range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of speech discrimination tests combined with the average puretone threshold levels as measured by puretone audiometry tests at the frequencies 1000, 2000, 3000, and 4000 Hertz.  To rate the degree of disability for service-connected hearing loss, the Schedule has established eleven auditory acuity levels, designated from level I, for essentially normal acuity, through level XI, for profound deafness.  38 C.F.R. § 4.85(h), Table VI.  To establish entitlement to a compensable rating for hearing loss, it must be shown that certain minimum levels of the combination of the percentage of speech discrimination loss and average puretone decibel loss are met.  The assignment of disability ratings for hearing impairment is derived by a mechanical application of the Schedule to the numeric designations assigned after audiometric evaluations are rendered.  See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). 

The criteria for rating hearing impairment use controlled speech discrimination tests, using the Maryland CNC test, together with the results of puretone audiometry tests.  These results are then charted on Table VI and Table VII as set out in the Schedule.  In exceptional cases, as described in 38 C.F.R. § 4.85(c), Table VIA is used instead of Table VI.  An exceptional pattern of hearing loss 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 greater at 2000 Hertz.  38 C.F.R. § 4.86.

Turning to the relevant evidence of record, the Veteran was provided a VA audiological examination in February 2011.  The Veteran reported that he has trouble hearing high pitched sounds/voices and has difficulty understanding in noise.  The pertinent audiometric results, measured in decibels were:




HERTZ



1000
2000
3000
4000
Average
RIGHT
10
40
60
80
47.5
LEFT
15
55
60
70
50

Speech audiometry revealed speech recognition ability of 96 percent in the right ear and 96 percent in the left ear.  Applying these results to Table VI of the Rating Schedule reveals numeric designations of Level I for the right ear and Level I for the left ear.  38 C.F.R. § 4.85, Diagnostic Code 6100.  Applying these finding to Table VII of the Rating Schedule results in a noncompensable rating for bilateral hearing loss.  

The Veteran was provided a VA audiological examination in February 2017.  The pertinent audiometric results, measured in decibels were:






HERTZ



1000
2000
3000
4000
Average
RIGHT
20
50
70
80
55
LEFT
20
60
65
70
53.75

Speech audiometry revealed speech recognition ability of 86 percent in the right ear and 82 percent in the left ear.  Applying these results to Table VI of the Rating Schedule reveals numeric designations of Level II for the right ear and Level IV for the left ear.  38 C.F.R. § 4.85, Diagnostic Code 6100.  Applying these finding to Table VII of the Rating Schedule results in a noncompensable rating for bilateral hearing loss.   

Accordingly, the competent evidence of record does not reflect that the Veteran's bilateral hearing loss warranted a compensable rating at any time during the appeal period.  To the extent that the Veteran contends that his bilateral hearing loss is more severe than reflected by his current disability ratings, the Board observes that the Veteran can attest to factual matters of which he has first-hand knowledge and understanding as a lay person, such as trouble hearing high pitched sounds/voices and difficulty understanding in noise.  See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); see also Layno v. Brown, 6 Vet. App. 465, 469 (1994).  However, he is not competent to state that his hearing acuity is of a severity sufficient to warrant a higher rating under VA's tables for rating hearing loss disabilities because such an opinion requires medical expertise and knowledge that he has not been shown to possess.  See Kahana v. Shinseki, 24 Vet. App. 428 (2011); Buchanan v. Nicholson, 451 F. 3d 1331, 1337 (2006).  

Accordingly, the Board attaches probative weight to the medical records and clinical findings from the skilled medical professionals who conducted the audiological testing rather than to the Veteran's lay witness statements.  Moreover, the assignment of disability ratings for hearing loss is primarily based upon a mechanical application of the rating criteria, as explained and applied in this decision.  In this case, the clinical evidence of record, when mechanically applied to the rating criteria, simply does not show that a compensable initial rating is warranted.  

The Board has considered the statements made by the Veteran in which he asserted that his hearing loss disability warrants a higher rating.  However, the Board is bound in its decisions by the VA regulations for rating of hearing loss.  38 U.S.C. § 7104 (c).  Rating hearing loss requires the use of the Maryland CNC speech discrimination test and the puretone threshold average determined by an audiometry test.  Application of the schedule to the facts of this case shows that a compensable initial rating is not warranted.  

The preponderance of the evidence is against a compensable initial rating for the Veteran's bilateral hearing loss.  As there is no reasonable doubt to be resolved in favor of the Veteran, the Board finds that the appeal must be denied.  38 U.S.C. § 5107 (b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record.  See Yancy v. McDonald, 27 Vet. App. 484, 495 (2016); Doucette v. Shulkin, 38 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record).

VA's Duty to Notify and Assist

With respect to the Veteran's claim 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 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). 

ORDER

Entitlement to an initial compensable rating for bilateral hearing loss is denied.


JOHN J. CROWLEY
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs