Citation Nr: 1800820	
Decision Date: 01/05/18    Archive Date: 01/19/18

DOCKET NO.  11-17 850	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania


THE ISSUE

Entitlement to a compensable rating for bilateral hearing loss.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

R. Walker, Associate Counsel



INTRODUCTION

The Veteran served on active duty from February 1966 to June 1988.

This matter came to the Board of Veterans' Appeals (Board) on appeal from an March 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania, which denied a compensable rating for bilateral hearing loss.  

In May 2014, the Board remanded the matter for further evidentiary development.  A review of the record shows that the RO has complied with all remand instructions.  Stegall v. West, 11 Vet. App. 268 (1998).  Neither the Veteran nor his representative has argued otherwise.  


FINDING OF FACT

Repeated audiological testing shows that the Veteran has had no more than Level I hearing loss in the right ear and Level IV hearing loss in the left ear.


CONCLUSION OF LAW

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


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Veterans Claims Assistance Act of 2000 (VCAA)

Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to 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 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)


Background

In November 2006, the Veteran submitted a claim for an increased rating for his service-connected bilateral hearing loss.  

In connection with the claim, the Veteran underwent an audiological examination in January 2008.  He reported worsening hearing acuity and indicated that he had been wearing hearing aids since 1989.  He denied other significant impacts.  

Examination showed pure tone thresholds, in decibels, as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
40
30
30
45
55
LEFT
35
45
55
60
65

The average puretone threshold was 40 decibels for the right ear and 56.25 decibels for the left ear.  The examiner, a physician in Germany, noted that the speech audiogram could not be performed because of a language barrier.  The examiner indicted that a clinical evaluation corresponded exactly with the tone audiogram.  The examiner estimated that speech recognition without hearing aids by room sound level amounted to about 65 percent.  The examiner characterized the Veteran's sensorineural hearing loss as moderate.  

In May 2008, the Veteran was seen at a military medical facility.  At that time, he reported hearing loss in both ears.  He indicated that he did not have difficulty understanding speech and had no impairment of auditory discrimination.  He denied vertigo and earaches.  The results of an uninterpreted audiogram showed pure tone thresholds, in decibels, as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
10
10
30
50
40
LEFT
5
10
25
45
50

Speech audiometry using the Maryland CNC word list revealed speech recognition score of 94 percent for each ear.  The average puretone threshold was 32.5 decibels, bilaterally.  

The Veteran underwent an audiology examination in December 2016.  Audiological evaluation showed pure tone thresholds, in decibels, as follows:
  



HERTZ



500
1000
2000
3000
4000
RIGHT
15
15
35
45
50
LEFT
10
20
25
35
55

The average puretone threshold was 36.25 decibels for the right ear and 33.75 decibels for the left ear.  Speech recognition testing using the Maryland CNC word list was conducted and the results showed 96 percent, bilaterally.  The examiner, however, checked a box indicating that the use of the speech discrimination score was not appropriate because of language difficulties, cognitive problems, inconsistent speech discrimination scores, etc., that make combined use of puretone average and speech discrimination scores inappropriate.  With respect to the functional impact of the Veteran's disability, the examiner noted that the Veteran reported severe problems understanding speech, especially in a noisy environment.  He reported that he needs to wear hearing aids and has worn them since 2000.  He indicated that his current hearing aids were old and insufficient from a technological point of view.  


Applicable Law

Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity.  38 U.S.C. § 1155; 38 C.F.R. Part 4 (2017).  Separate diagnostic codes identify the various disabilities.  Where there is a question as to which of two evaluations shall be applied, 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).  Any reasonable doubt regarding the degree of disability is resolved in favor of the Veteran.  38 C.F.R. § 4.3 (2017).

In considering the severity of a disability, it is essential to trace the medical history of the Veteran.  38 C.F.R. §§ 4.1, 4.2, 4.41 (2017).  Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present.  38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991).

Where a claimant appeals the denial of a claim for an increased disability rating for a disability for which service connection was in effect before he filed the claim for increase, the present level of disability is the primary concern, and past medical reports should not be given precedence over current medical findings.  Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994).  Where VA's adjudication of the claim for increase is lengthy and factual findings show distinct time periods where the service-connected disability exhibits symptoms which would warrant different ratings, different or "staged" ratings may be assigned for such different periods of time.  Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007).

Impairment of auditory acuity (hearing loss) is evaluated pursuant to the provisions set forth at 38 C.F.R. § 4.85.  Under that regulation, an examination for hearing impairment must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a puretone audiometry test.  Examinations are to be conducted without the use of hearing aids.  38 C.F.R. § 4.85(a).  To evaluate the degree of disability from defective hearing, the Rating Schedule establishes 11 auditory acuity levels from Level I for essentially normal acuity through Level XI for profound deafness.  These are assigned based on a combination of the percent of speech discrimination and the puretone threshold average, as contained in a series of tables within the regulations.  38 C.F.R. § 4.85(b).  The "puretone threshold average" is the sum of the puretone thresholds at 1000, 2000, 3000, and 4000 Hertz, divided by four.  This average is used in all cases to determine the Roman numeral designation for hearing impairment from Table VI or VIa.  38 C.F.R. § 4.85(d) (2017).

Table VIa, "Numeric Designation of Hearing Impairment Based Only on Puretone Threshold Average," is used to determine a Roman numeral designation (I through XI) for hearing impairment based only on the puretone threshold average.  Table VIa will be used when the examiner certifies that the use of speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc., or when indicated under the provisions of section 4.86.  38 C.F.R. § 4.85(c) (2017).

Table VII, "Percentage Evaluations for Hearing Impairment," is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment of each ear.  The horizontal rows represent the ear having the better hearing and the vertical columns the ear having the poorer hearing.  The percentage evaluation is located at the point where the row and column intersect.  38 C.F.R. § 4.85(e).

The regulatory provisions also provide two additional circumstances under which alternative tables can be employed.  One is where the puretone thresholds in any four of the five frequencies of 500, 1,000, 2,000, 3,000, and 4,000 Hertz are 55 decibels or greater.  The second is where puretone thresholds are 30 decibels or less at frequencies of 1,000 Hertz and below, and are 70 decibels or more at 2,000 Hertz.  See 38 C.F.R. § 4.86 (2017).

The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C.A. § 5107(b).  Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary.  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990).


Analysis

Applying the facts in this case to the applicable legal criteria, the Board finds that the preponderance of the evidence is against the assignment of a compensable rating for bilateral hearing loss.

As set forth in detail above, the Veteran has undergone repeated audiometric examinations to evaluate his bilateral hearing acuity.  The January 2008 audiometric examination showed that he had an average pure tone threshold of 40 decibels in the right ear and 56.25 decibels in the left ear.  Because the examiner was unable to conduct speech discrimination testing, the Board has used Table VIA in evaluating these examination results.  That table indicates that the January 2008 examination results showed that the Veteran had Level I hearing loss in the right ear and Level IV in the left ear.  Under Table VII in the Rating Schedule, therefore, the criteria for a compensable rating have not been met with respect to these audiometric findings.  38 C.F.R. § 4.85, Diagnostic Code 6100.  The Board has also considered the provisions of 38 C.F.R. § 4.86, but the results of this audiometric examination shows that the alternative table is not applicable.

Here, the Board notes that the physician who conducted the January 2008 examination estimated that the Veteran's speech discrimination was approximately 65 percent.  Given the applicable rating criteria, and given that speech discrimination testing was not performed, the Board finds that these estimated values are of limited probative value.  

The Board further notes that speech discrimination testing was performed shortly thereafter at the May 2008 examination.  As set forth above, speech audiometry at the May 2008 examination using the Maryland CNC word list revealed speech recognition score of 94 percent for each ear.  The average puretone threshold was 32.5 decibels, bilaterally.  

The December 2016 examination results likewise equate to a noncompensable rating.  The Veteran's hearing acuity was measured as an average pure tone threshold of 36.25 decibels in the right ear and an average pure tone threshold of 33.75 decibels in the left ear.  Because the examiner indicated that the use of the speech discrimination score was not appropriate because of language difficulties, cognitive problems, inconsistent speech discrimination scores, etc., the Board has employed Table VIA.  That table shows that the examination results indicate that the Veteran's hearing loss was at Level I in both ears.  Under Tables VIa and VII in the Rating Schedule, therefore, the criteria for a compensable rating have not been met with respect to these audiometric findings.  38 C.F.R. § 4.85, Diagnostic Code 6100.  The Board notes, however, that even if the speech discrimination scores were considered and Table VI employed, the criteria for a compensable rating would still not be met.  

The Board has carefully reviewed the remaining record in its entirety, but finds no other probative evidence of record showing that the Veteran's hearing loss disability is more severe for compensation purposes than demonstrated on the audiological evaluations discussed above.   

The Board has also considered the evidence of record showing that the Veteran has severe problems understanding speech, particularly in noisy environments.  The Board has also considered his statements that he wears hearing aids.  Although the Board finds his statements to be credible, it finds that these factors do not provide a sufficient basis on which to award a compensable rating for bilateral hearing loss.  Disability ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered.  See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992).  In this case, as explained above, the numeric designations correlate to a noncompensable disability rating.  Given the applicable rating criteria, the Board must base its determination on the results of the pertinent and valid audiology studies.  In other words, the Board is bound by law to apply VA's rating schedule based on the Veteran's audiometry results.  See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.  In this case, as explained above, the numeric designations do not correlate to a compensable rating.  As such, the preponderance of the evidence is against the Veteran's claim for a compensable schedular rating.  

In reaching this decision, the Board has also considered whether an extraschedular rating is warranted with respect to the Veteran's bilateral hearing loss.  Bagwell v. Brown, 9 Vet. App. 157 (1996) (the question of extraschedular rating is a component of a claim for an increased rating).  

The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a veteran is entitled to an extraschedular rating:  (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extraschedular disability rating must be in the interest of justice.  Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009).  Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability.

The Board finds that the rating criteria contemplate the Veteran's bilateral hearing loss disability.  The Veteran's hearing loss is manifested by decreased hearing acuity that impacts his ability to understand conversations, particularly in a noisy environment.  He also wears hearing aids.  A comparison between the level of severity and symptomatology of the Veteran's assigned rating with the established criteria found in the rating schedule shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology, including his difficulty hearing and understanding speech.  As discussed above, there are higher ratings available under the diagnostic code, but the Veteran's disability is not productive of such impairment.

The Board notes that the decibel loss and speech discrimination ranges designated for each level of hearing impairment in Tables VI and VIA were chosen in relation to clinical findings of the impairment experienced by veterans with certain degrees and types of hearing disability.  In support of this finding, the Board points to the regulatory history of 38 C.F.R. §§ 4.85 and 4.86.  In this regard, the rating criteria for hearing loss were last revised, effective June 10, 1999.  See 64 Fed. Reg. 25206 (May 11, 1999).  In forming these revisions, VA sought the assistance of the Veteran's Health Administration (VHA) in developing criteria that contemplated situations in which a Veteran's hearing loss was of such a type that speech discrimination tests may not reflect the severity of communicative functioning these veterans experienced or that was otherwise an extreme handicap in the presence of any environmental noise, even with the use of hearing aids.  VHA had found through clinical studies of veterans with hearing loss that, when certain patterns of impairment are present, a speech discrimination test conducted in a quiet room with amplification of the sounds does not always reflect the extent of impairment experienced in the ordinary environment.  The decibel threshold requirements for application of Table VIA were based on the findings and recommendations of VHA.  The intended effect of the revision was to fairly and accurately assess the hearing disabilities of veterans as reflected in a real life industrial setting.  59 Fed. Reg. 17295 (April 12, 1994).  Accordingly, the Board finds that functional impairment due to hearing loss that is compounded by background or environmental noise is a disability picture that is considered in the current schedular rating criteria.  Similarly, the rating criteria specifically contemplate the use of hearing aids.  See e.g. 38 C.F.R. § 4.85.  The Board therefore finds that the Veteran's complaints of hearing difficulty and the use of hearing aids have been considered under the numerical criteria set forth in the rating schedule.

The Board notes that this conclusion is consistent with the Court's holding in Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) ("[W]hen a claimant's hearing loss results in an inability to hear or understand speech or to hear other sounds in various contexts, those effects are contemplated by the schedular rating criteria"); see also Rossy v. Shulkin, No. 16-0720 U.S. Vet. App. (Dec. 13, 2017).  The Board further finds that other than difficulty hearing or understanding speech, the record on appeal contains no evidence of other symptoms attributable to the service-connected hearing loss, such as dizziness, vertigo, or ear pain, not contemplated by the rating criteria.  Although the Veteran reported difficulty sleeping, he attributed that symptom to his service-connected tinnitus and the rating assigned to that disability is not at issue here.  

Because the rating criteria reasonably describe the claimant's disability level and symptomatology, the Veteran's disability picture is contemplated by the Rating Schedule, such that the assigned schedular evaluation is, therefore, adequate, and no referral is required.  Thun v. Peake, 22 Vet. App. 111, 115-116 (2008); VAOPGCPREC 6-96.  The evidence does not show anything unique or unusual about the Veteran's bilateral hearing loss that would render the schedular criteria inadequate.


ORDER

Entitlement to a compensable rating for bilateral hearing loss is denied.




____________________________________________
K. Conner
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs