Citation Nr: 1800798 Decision Date: 01/05/18 Archive Date: 01/19/18 DOCKET NO. 13-27 186 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to an initial compensable rating for left ear hearing loss. REPRESENTATION Appellant represented by: South Carolina Office of Veterans Affairs WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD L. Connor, Counsel INTRODUCTION The Veteran served on active duty from June 1969 to December 1970. He received the Combat Infantry Badge. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a November 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky that assigned a noncompensable disability rating for left ear hearing loss, after granting service connection for the same. Jurisdiction is currently retained by the RO in Columbia, South Carolina. The Veteran testified at an April 2016 video conference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is associated with the claims file. This case was previously before the Board in August 2016 when it was remanded for additional development. It has returned for adjudication. FINDING OF FACT The Veteran's nonservice-connected right ear is assigned Level I hearing; and, during the course of the appeal, he had no worse than Level IV hearing in the left ear. CONCLUSION OF LAW The criteria for an initial compensable rating for left ear hearing loss have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156, 3.321, 4.1, 4.7, 4.85, 4.86, Diagnostic Code 6100 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION This matter was remanded in August 2016 for additional development. The RO was directed to schedule an examination to determine the current severity of the Veteran's left ear hearing loss. The examination was provided in December 2016 and the accompanying examination report is associated with the claims file. Accordingly, the Board finds that there has been substantial compliance with the August 2016 remand directives and no further development is required. See Stegall v. West, 11 Vet. App. 268 (1998); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999), aff'd, 287 F.3d 1377 (Fed. Cir. 2002) (holding that there was no Stegall violation when there has been substantial compliance with the Board's remand order). Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist with respect to the issue decided herein. 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 veteran 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). The Board has reviewed all of the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that all the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Increased Ratings 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 degrees of disability 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 if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2017). In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as "staging the ratings." See Hart v. Mansfield, 21 Vet. App. 505 (2007). If there is at least an approximate balance of positive and negative evidence regarding any issue material to the claim, the Veteran shall be given the benefit of the doubt in resolving each such issue. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001). The assignment of a disability rating for hearing impairment is "derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometry evaluations are rendered." Lendenmann v. Principi, 3 Vet. App. 345, 349 (1993). Specifically, organic impairment of hearing acuity is rated using audiological test results, obtained by a state-licensed audiologist, and the basic rating method involves using both the results of controlled speech discrimination tests (Maryland CNC) and the average decibel threshold level as measured by puretone audiometry tests at the frequencies of 1000, 2000, 3000, and 4000 Hertz. 38 C.F.R. § 4.85(a). Tests are conducted without hearing aids. VA rating criteria for evaluating hearing loss disability provide ratings from 0 (noncompensable) to 100 percent, based on the results of controlled speech discrimination tests together with the results of puretone audiometry tests. 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100. "Puretone threshold average," as used in Table VI, is the sum of the puretone thresholds at 1000, 2000, 3000 and 4000 Hertz, divided by four. Average puretone decibel (dB) loss is located on Table VI along a horizontal axis, and percent of speech discrimination is located along a vertical axis. These axes intersect to determine the Roman numeral designation for hearing impairment in each ear. The results are then matched between the "better" ear and the "poorer" ear on Table VII to produce a disability rating under Diagnostic Code 6100. When the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more, Table VI or Table VIa is to be used, whichever results in the higher numeral. 38 C.F.R. § 4.86(a). Additionally, when the puretone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, Table VI or Table VIa is to be used, whichever results in the higher numeral. Thereafter, that numeral will be elevated to the next higher numeral. 38 C.F.R. § 4.86(b). In Martinak v. Nicholson, 21 Vet. App. 447 (2007), the Court held that in addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in his or her final report. Martinak, 21 Vet. App. at 455. The Court also noted, however, that even if an audiologist's description of the functional effects of a veteran's hearing disability was somehow defective, the veteran bears the burden of demonstrating any prejudice caused by a deficiency in the examination. Id. The Veteran is only service-connected for left ear hearing loss. Pursuant to 38 C.F.R. § 4.85(f), if impaired hearing is service-connected in only one ear, in order to determine the percentage evaluation from Table VII, the nonservice-connected ear will be assigned a Roman Numeral designation for hearing impairment of I. However, if impaired hearing is service-connected in only one ear, the impairment in both ears will be considered in rating the disability if the impairment in the service-connected ear is to a degree of 10 percent or more and the impairment in the nonservice-connected ear qualifies as a disability under 38 C.F.R. § 3.385. See 38 C.F.R. § 3.383. In this regard, in order for the left ear hearing loss to be considered 10 percent disabling, it must reach Level X or XI (which are the Roman Numeral designations for hearing loss of a severity that it would equate to a 10 percent rating when the nonservice-connected ear is assigned Level I hearing impairment). However, as will be discussed below, the Veteran's left ear hearing loss results in no worse than Level IV hearing impairment. As such, for the entire appeal period, the Veteran's nonservice-connected right ear is assigned Level I hearing. During a June 2011 VA examination, the following audiological results were obtained: puretone thresholds for the left ear, in decibels, at 1000, 2000, 3000, and 4000 hertz (Hz) as follows: 10, 40, 60, and 55, for an average of 41.25 dB. The speech recognition score, using the Maryland CNC Test, was 94 percent in the left ear. The examiner diagnosed left ear high frequency sensorineural hearing loss. Evaluating the VA audiological test results cited above, when the puretone threshold average and the speech recognition score are applied to Table VI, the numeric designation of hearing impairment is level I for the left ear. Applying the percentage ratings for hearing impairment found in Table VII, level I hearing in the left ear and level I hearing in the nonservice-connected right ear results in a noncompensable rating. 38 C.F.R. § 4.85. Private treatment records dated in July 2012 revealed the following audiological results: puretone thresholds for the left ear, in decibels, at 1000, 2000, 3000, and 4000 hertz (Hz) as follows: 15, 40, 65, and 65, for an average of 46.25 dB. The speech recognition score, the specific test not noted, was 72 percent in the left ear. Evaluating the VA audiological test results cited above, when the puretone threshold average and the speech recognition score are applied to Table VI, the numeric designation of hearing impairment is level IV for the left ear. Applying the percentage ratings for hearing impairment found in Table VII, level IV hearing in the left ear and level I hearing in the nonservice-connected right ear results in a noncompensable rating. 38 C.F.R. § 4.85. The September 2012 VA examination yielded the following audiological results: puretone thresholds for the left ear, in decibels, at 1000, 2000, 3000, and 4000 hertz (Hz) as follows: 10, 40, 60, and 55, for an average of 41 dB. The speech recognition score, using the Maryland CNC Test, was 96 percent in the left ear. The examiner diagnosed left ear sensorineural hearing loss. The examiner noted that the Veteran reported difficulty hearing in noisy environments and that the television has to be turned loud to hear. Evaluating the VA audiological test results cited above, when the puretone threshold average and the speech recognition score are applied to Table VI, the numeric designation of hearing impairment is level I for the left ear. Applying the percentage ratings for hearing impairment found in Table VII, level I hearing in the left ear and level I hearing in the nonservice-connected right ear results in a noncompensable rating. 38 C.F.R. § 4.85. In correspondence dated in February 2013, the Veteran indicated that he has to ask people to repeat themselves every day due to his left ear hearing loss. He also noted that he uses his hand to try to hear better and has difficulty understanding what people say in a crowded room. He indicated that he always talks to people on the right side and cannot understand anyone on the telephone using his left ear. His wife also complains that the television is too loud. During the April 2016 Board hearing, the Veteran stated that he has a hard time understanding people from time to time. He said he has to use his right side if he is talking to someone in a crowd or if there is background noise. The Veteran also indicated that his hearing seemed to have deteriorated over the years and he has difficulty hearing the television. The December 2016 VA examination yielded the following audiological results: puretone thresholds for the left ear, in decibels, at 1000, 2000, 3000, and 4000 hertz (Hz) as follows: 15, 40, 55, and 55, for an average of 41.25 dB. The speech recognition score, using the Maryland CNC Test, was 90 percent in the left ear. The examiner diagnosed left ear sensorineural hearing loss. The examiner noted that the Veteran reported difficulty hearing people. Evaluating the VA audiological test results cited above, when the puretone threshold average and the speech recognition score are applied to Table VI, the numeric designation of hearing impairment is level II for the left ear. Applying the percentage ratings for hearing impairment found in Table VII, level II hearing in the left ear and level I hearing in the nonservice-connected right ear results in a noncompensable rating. 38 C.F.R. § 4.85. Considering such evidence in light of the criteria noted above, the Board finds that, for the entire appeal period, the Veteran's nonservice-connected right ear is assigned Level I hearing, and, as he has no worse than Level IV hearing in the left ear, he is not entitled to a compensable rating for his left ear hearing loss. The Veteran contends that his hearing loss is more severe than currently evaluated. While competent to report symptoms attributable to his hearing loss, he is not competent to report that his hearing acuity is of sufficient severity to warrant a 10 percent or greater evaluation under VA's tables for rating hearing loss disabilities because such an opinion requires medical expertise (training in evaluating hearing impairment), which he has not been shown to have. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Indeed, even after considering such contentions as to the effects of the disability on his daily life such as difficulty hearing voices and the television, the Board finds that the criteria for a compensable evaluation are not met. See Lendenmann, supra (assignment of disability ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluation are rendered); Doucette v. Shulkin, 28 Vet. App. 366 (2017). In reviewing the record, the Board finds that the Veteran's degree of left ear hearing loss does not meet the standards for a compensable evaluation at any point during the appeal period. There is also no evidence of an exceptional pattern of hearing during the appeal period to warrant an increased rating under 38 C.F.R. § 4.86. Thus, there is no basis for assignment of a compensable rating at any time during the appeal period. See Hart, 21 Vet. App. 505. As the preponderance is against the Veteran's claim for a compensable rating for left ear hearing loss, the claim is denied. ORDER Entitlement to an initial compensable disability rating for service-connected bilateral hearing loss is denied. ____________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs