Citation Nr: 1801230	
Decision Date: 01/09/18    Archive Date: 01/19/18

DOCKET NO.  16-33 368	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas


THE ISSUE

Entitlement to an increased rating in excess of 10 percent for service-connected bilateral hearing loss.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

C. L. Wasser, Counsel


INTRODUCTION

The Veteran served on active duty from March 1968 to August 1992.

This case comes to the Board of Veterans' Appeals (Board) on appeal from a July 2013 RO decision that in pertinent part, granted an increased 10 percent rating for service-connected bilateral hearing loss.

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) (West 2012).


FINDING OF FACT

The weight of the probative evidence shows that the Veteran's bilateral hearing loss is manifested by no worse than Level III hearing acuity in the right ear and Level IV hearing acuity in the left ear.


CONCLUSION OF LAW

The criteria for an increased rating in excess of 10 percent for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107 (West 2012); 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

Notice and Assistance

VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a).

VA's duty to notify was satisfied by a March 2013 letter. See 38 U.S.C.A. §§ 5102, 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2016); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). 

VA also fulfilled its duty to assist the Veteran with this claim by obtaining all potentially relevant evidence, which is obtainable, and therefore appellate review may proceed without prejudicing him. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159; see also Bernard v. Brown, 4 Vet. App. 384 (1993). To this end, VA has obtained service treatment records and VA medical records, assisted the appellant in obtaining evidence, and arranged for VA compensation examinations and medical opinions as to the severity of his bilateral hearing loss. All known and available records relevant to the issue on appeal have been obtained and associated with the appellant's claims file; and the appellant has not contended otherwise.  

With respect to the claim for an increased rating only if the record is inadequate or there is suggestion the current rating may be incorrect is there then a need for a more contemporaneous examination.  38 C.F.R. § 3.327(a). Here, the most recent VA compensation examination for this condition was conducted in July 2016. The mere passage of time since does not, in and of itself, necessitate another examination. See Palczewski v. Nicholson, 21 Vet. App. 174 (2007). A medical opinion is adequate when it is based upon consideration of the appellant's prior medical history and examinations and also describes the disability in sufficient detail so that the Board's "evaluation of the claimed disability will be a fully informed one."  Barr v. Nicholson, 21 Vet. App. 303, 311 (2007).  

The Board finds that the examination reports were each sufficiently detailed with recorded history, impact on employment and daily life, and clinical findings.  The examinations were conducted by competent medical professionals. In addition, it is not shown that the examinations were in any way incorrectly conducted or that the VA examiners failed to address the clinical significance of the Veteran's symptoms. Further, the VA examination reports addressed the applicable rating criteria. In this regard, the reports of record contain sufficiently specific clinical findings and informed discussion of the pertinent history and features of the service-connected bilateral hearing loss to provide probative medical evidence for rating purposes.  The Board finds that the most recent VA examinations are adequate as they provide the information needed to properly rate his bilateral hearing loss. 38 C.F.R. §§ 3.327(a), 4.2. The Board finds that another examination is not needed since there is sufficient evidence, already on file, to fairly decide this claim.  

Law and Regulations

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities.  Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are:  interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity, 38 C.F.R. § 4.10.

Governing law provides that the evaluation of the same manifestation under different diagnoses, known as pyramiding, is to be avoided. See Esteban v. Brown, 6 Vet. App. 259 (1994); see also 38 C.F.R. § 4.14. In Esteban, the United States Court of Appeals for Veterans Claims (Court) found that when a Veteran has separate and distinct manifestations from the same injury he should be compensated under different Diagnostic Codes. The Board notes that the Veteran also has service-connected tinnitus, and impairment from tinnitus will not be considered when evaluating the service-connected bilateral hearing loss.

When rating the Veteran's service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. (1991). In general, the degree of impairment resulting from a disability is a factual determination and the Board's primary focus in such cases is upon the current severity of the disability.  Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994); Solomon v. Brown, 6 Vet. App. 396, 402 (1994).  However, staged ratings are appropriate in any initial rating/increased-rating claim in which distinct time periods with different ratable symptoms can be identified. Fenderson v. West, 12 Vet. App. 119, 126-127 (1999);  Hart v. Mansfield, 21 Vet. App. 505 (2007).

The Veteran's lay statements are considered competent evidence when describing his symptoms of disease or disability that are non-medical in nature. Barr v. Nicholson, 21 Vet. App. 303 (2007), Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); and Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). His lay statements regarding the severity of his symptoms must be viewed in conjunction with the objective medical evidence of record and the pertinent rating criteria. And the ultimate probative value of his lay testimony and statements is determined not just by his competency, but also his credibility to the extent his statements concerning this is consistent with this other evidence. See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")). See also 38 C.F.R. § 3.159(a)(1) and (a)(2).

Throughout the rating period on appeal, the RO has rated the Veteran's service-connected bilateral hearing loss as 10 percent disabling under the provisions of Diagnostic Code 6100 of the Schedule for Rating Disabilities. 38 C.F.R. § 4.85. The assignment of a disability rating for service-connected 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 severity of a hearing loss disability is determined by applying the criteria set forth at 38 C.F.R. § 4.85. Under these criteria, evaluations of bilateral hearing loss range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests together with the average hearing threshold level as measured by puretone audiometry tests in the frequencies of 1000, 2000, 3000 and 4000 Hertz.

For VA rating purposes, an examination for hearing impairment must meet the four requirements of 38 C.F.R. § 4.85 (a). It must be conducted by a state-licensed audiologist, the examination must include a controlled speech discrimination test (Maryland CNC), the examination must include a puretone audiometry test, and the examination must be conducted without the use of hearing aids.

To evaluate the degree of disability from defective hearing, the rating schedule establishes eleven auditory acuity levels from level I for essentially normal acuity through level XI for profound deafness. 38 C.F.R. § 4.85. To evaluate an individual's level of disability, Table VI is used to assign a Roman numeral designation for hearing impairment based on a combination of the percent of speech discrimination and the puretone threshold average. 38 C.F.R. § 4.85 (b). Table VII is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment for each ear. 38 C.F.R. § 4.85 (e). 

Under 38 C.F.R. § 4.86 , when the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more, the rating specialist will determine the Level designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. 38 C.F.R. § 4.86  (a). Further, when the average puretone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, the rating specialist will determine the Level designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. That numeral will then be elevated to the next higher Level. 38 C.F.R. § 4.86 (b). As an initial matter, the Board finds that an exceptional pattern of hearing under 38 C.F.R. § 4.86  in the context of the Veteran's most recent VA examination has not been shown and that regulation is inapplicable.

Throughout the rating period on appeal, the Veteran's service-connected bilateral hearing loss has been rated as 10 percent disabling under Diagnostic Code 6100.

The Veteran contends that his bilateral hearing loss is more disabling than currently evaluated. He has submitted lay statements to the effect that his bilateral hearing loss produces difficulty understanding conversation. His son, a physician, has submitted a letter stating that the Veteran has severe hearing loss, and he often has to shout to him and repeat himself before the Veteran understands what is being said. See his March 2013 letter.

On VA examination in May 2013, audiometric testing revealed right ear decibel thresholds of 50, 60, 70 and 70, and left ear decibel thresholds of 50, 75, 85 and 80, at the respective frequencies of 1000, 2000, 3000, and 4000 hertz. Speech recognition scores using the Maryland CNC Test were 84 percent in the right ear and 80 percent in the left ear. The examiner diagnosed bilateral sensorineural hearing loss and indicated that the Veteran's hearing loss impacted the ordinary conditions of daily life, including the ability to work. The Veteran reported difficulty understanding speech especially over the telephone.

A report of a November 2014 mental disorders examination reflects that the Veteran worked part-time in his family store.

In July 2016, the Veteran contended that his hearing had worsened since his last VA examination, and requested another examination.

On VA examination in July 2016, audiometric testing revealed right ear decibel thresholds of 50, 60, 70, and 70, and left ear decibel thresholds of 45, 65, 75 and 70, at the respective frequencies of 1000, 2000, 3000, and 4000 hertz.  Speech recognition scores using the Maryland CNC Test were 84 percent in the right ear and 88 percent in the left ear. The examiner diagnosed bilateral sensorineural hearing loss and indicated that the Veteran's hearing loss impacted the ordinary conditions of daily life, including the ability to work. The Veteran reported that it was really hard to communicate and he had the television on full volume.

The findings on the Veteran's VA audiometric studies in May 2013 correlate to a designation of level III hearing in the right ear and level IV hearing in the left ear, using Table VI. Table VII of § 4.85 provides for a 10 percent evaluation under Diagnostic Code 6100 when those levels of hearing are demonstrated.

The findings on the Veteran's VA audiometric studies in July 2016 correlate to a designation of level III hearing in the right ear and level III hearing in the left ear, using Table VI. Table VII of § 4.85 provides for a 0 percent (noncompensable) evaluation under Diagnostic Code 6100 when those levels of hearing are demonstrated.

The Board appreciates the difficulties which the Veteran says he experiences because of his hearing loss. However, according to the audiological test results during the pendency of the appeal, compared to the rating criteria, a rating in excess of 10 percent for his bilateral hearing loss is not warranted. See Lendenmann, supra. In sum, the Board finds that for these reasons and bases, the preponderance of the evidence is against an increased rating for bilateral hearing loss, throughout the rating period on appeal. 38 C.F.R. § 4.85, Diagnostic Code 6100. 

The Board notes 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. See Martinak v. Nicholson, 21 Vet. App. 447 (2007). In this case, the VA examiners noted that the Veteran reported hearing difficulty which affected his daily and occupational activities. Moreover, the May 2013 VA examiner reviewed the claims file, which contains statements by the Veteran as to his hearing difficulties. The Board finds that such functional impairment, in addition to the Veteran's other reports, has been appropriately considered but the overall evidence, as previously discussed, fails to support assignment of an increased evaluation. 

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. 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. 

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"). 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.

The Veteran has not raised any other issues with respect to the increased rating claim, nor have any other assertions been reasonably raised by the record. See Doucette, 28 Vet. App. at 369-70.

As the preponderance of the evidence is against this claim, the benefit of the doubt doctrine does not apply, and the claim for an increased rating for bilateral hearing loss must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).


ORDER

An increased rating in excess of 10 percent for service-connected bilateral hearing loss is denied.



____________________________________________
Lesley A. Rein
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs