Citation Nr: 1801253	
Decision Date: 01/09/18    Archive Date: 01/19/18

DOCKET NO.  15-35 991	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Oakland, California


THE ISSUE

Entitlement to an initial rating in excess of 10 percent for bilateral hearing loss. 


REPRESENTATION

Appellant represented by:	AMVETS


ATTORNEY FOR THE BOARD

J.N. Moats, Counsel


INTRODUCTION

The Veteran served on active duty from October 1962 to August 1964.

This case comes before the Board of Veterans' Appeals (Board) on appeal from a September 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California, which granted service connection for bilateral hearing loss and assigned a 10 percent rating.

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 2014).


FINDING OF FACT

From the date of award of service connection, the Veteran's service-connected bilateral hearing loss was productive of Level XI hearing acuity for the right ear and Level II hearing acuity of the left ear.


CONCLUSION OF LAW

The criteria for entitlement to an initial disability rating in excess of 10 percent for the Veteran's service-connected bilateral hearing loss have not been met.  38 U.S.C. §§ 1155, 5107 (2014); 38 C.F.R. § 3.321(b), Part 4, including §§ 4.7, 4.85, Diagnostic Code 6100 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  VA's Duties to Notify and Assist

With respect to the Veteran's claim herein, the Veteran has not alleged that VA has not fulfilled its duty notify or assist in the development of his claim.  See 38 U.S.C. §§ 5100 , 5102, 5103, 5103A, 5106, 5107, 5126 (2014); 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).  


Analysis

The present appeal involves the issue of entitlement to an initial higher rating for his service-connected bilateral hearing loss.  The Veteran asserts that a higher evaluation is warranted because he is essentially deaf in the right ear.  

The Veteran's bilateral hearing loss has been rated as 10 percent disabling.  Disability evaluations are determined by the application of the Schedule For Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability.  38 U.S.C. § 1155; 38 C.F.R. Part 4.  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.  
 
In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition.  Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991).  Where, as in the instant case, the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time.  See Fenderson v. West, 12 Vet. App. 119 (1999).  At the time of an initial rating, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings.  Id. at 126.

The Rating Schedule provides a table for ratings purposes (Table VI) to determine a Roman numeral designation (I through XI) for hearing impairment, established by a state-licensed audiologist including a controlled speech discrimination test (Maryland CNC), and based upon a combination of the percent of speech discrimination and the puretone threshold average which is the sum of the puretone thresholds at 1000, 2000, 3000 and 4000 Hertz, divided by four.  See 38 C.F.R.  § 4.85.

Table VII is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment of each ear.  The horizontal row represents the ear having the poorer hearing and the vertical column represents the ear having the better hearing.  Id.

Table VIA is 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 38 C.F.R. 
§ 4.86.  38 C.F.R. § 4.85(c).

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 Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral.  Each ear will be evaluated separately.  38 C.F.R. § 4.86(a).

When the puretone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, the rating specialist will determine the Roman numeral 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 Roman numeral.  Each ear will be evaluated separately.  38 C.F.R. § 4.86(b).

To evaluate the degree of disability from defective hearing, the rating schedule establishes eleven auditory acuity levels designated from I for essentially normal acuity, through XI for profound deafness.  38 C.F.R. § 4.85, Tables VI, VII.

A 10 percent evaluation is provided where hearing in the better ear is I and hearing in the poorer ear is X and XI; where hearing in the better ear is II and hearing in the poorer ear is V to XI; where hearing in the better ear is III and hearing in the poorer ear is IV to VI; or where hearing in the better ear is IV and hearing in the poorer ear IV to V.  38 C.F.R. § 4.85, Table VII, Diagnostic Code 6100.  The next higher evaluation of 20 percent is provided where hearing in the better ear is III and hearing in the poorer ear is VII to XI; where hearing in the better ear is IV and hearing in the poorer ear is VI to VII; or where hearing in the better ear is V and hearing in the poorer ear V and VI.  38 C.F.R. § 4.85, Table VII, Diagnostic Code 6100.  Higher evaluations are available for more severe hearing loss.  

Pertinent case law provides that the assignment of disability ratings for hearing impairment are to be derived by the mechanical application of the Ratings Schedule to the numeric designations assigned after audiometry evaluations are rendered.  Lendenmann v. Principi, 3 Vet. App. 345 (1992).

The Veteran filed a claim seeking service connection for bilateral hearing loss in February 2012 and was afforded a VA examination in July 2013.  At that time, audiometric testing revealed the following:

HERTZ
1000
2000
3000
4000
RIGHT
CNT
CNT
CNT
CNT
LEFT
50
55
65
75

The puretone threshold average when rounded was 61 in the left ear.  Speech recognition was 96 percent in the left ear.  The examiner indicated that the right ear could not be tested (CNT) as there was no response at limits of the audiometer.  However, the examiner indicated that test results were valid for rating purposes and use of speech discrimination was appropriate.  The examiner reviewed the claims file and diagnosed sensorineural hearing loss in both ears.  The Veteran reported that he could not understand people talking and needed repetition.  He also had difficulty understanding when more than one person was talking.  He additionally described problems hearing on the telephone.   
	
At the time of the July 2013 VA audiological examination, the Veteran was shown to have an average puretone hearing loss of 61 decibels in the left ear, with 96 percent speech discrimination, which translates to a Roman numeral designation of II for the left ear.  As the Veteran could not be tested in the right ear, the assignment of the highest Roman numeral designation of XI is applied for the right ear.  Thus, when applying Table VII, Diagnostic Code 6100, level XI for the right ear and level II for the left ear equates to a 10 percent disability evaluation.  As the puretone threshold for the left ear was not 55 decibels or more at each of the four specified frequencies; or 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, Table VIA is not for application with respect to the left ear.  Again, the right ear has been assigned the highest Roman numeral designation under this Table as well.    

A VA opinion was obtained in February 2017 given the evidence of profound hearing loss in the right ear.  The Veteran was seen for medical evaluation for non-otologic etiology for tonal deafness on the right.  The examiner reviewed the evidence of record and found that no non-otologic medical problems were found.  The examiner noted that the Veteran had an MRI, which was essentially normal and no pontine tumor was present.  He had no evidence of ataxia, gait problems, neurologic equilibrium problems, nystagmus, tinnitus, or prior or recurrent otitis as a child or adult.  He had no significant noise exposure since his retirement in 1986.    Therefore, the examiner opined that it was less likely than not that a medical problem caused his hearing loss and more likely than not the hearing loss was entirely audio and otologic in origin and, in turn, more likely than not was incurred in or caused by service. The diagnosis was sensorineural hearing loss, profound on the right ear, essentially deaf.  With respect to functional impact, the examiner observed that with absent hearing on the right ear and slightly diminished hearing on the left, the Veteran is limited in working in moving parts or machinery, or any dangerous environment where hearing is important to avoid dangers.

The Veteran was afforded another VA examination in March 2017.  However, testing was voided as the Veteran's right ear canal was completely occluded with cerumen.  He was afforded another VA examination later that same month.  The claims file record was reviewed.  At this time, audiometric testing revealed the following:

HERTZ
1000
2000
3000
4000
RIGHT
105+
105+
105+
105+
LEFT
50
55
65
80

The puretone threshold average was 105+ in the right ear and speech recognition again could not be tested.  The puretone threshold average when rounded was 63 in the left ear.  Speech audiometry revealed speech recognition ability of 96 percent in the left ear.  With respect to functional impact, the Veteran reported that he was a security officer part-time at a mall and used a radio.  While he could hear, sometimes certain words sounded different.  In normal conversation, a person may say a word, but the Veteran  interpreted it as another word.  The Veteran had to be close.  If it was busy at the mall and there was background noise,  he had the most trouble hearing.
	
At the time of the March 2017 VA audiological examination, the Veteran was shown to have an average puretone hearing loss of 63 decibels in the left ear, with 96 percent speech discrimination, which again translates to a Roman numeral designation of II for the left ear.  As the Veteran was 105+ at each puretone threshold in the right ear, the assignment of a the highest Roman numeral designation of XI is applied for the right ear.  Thus, when applying Table VII, Diagnostic Code 6100, level XI for the right ear and level II for the left ear equates to a 10 percent disability evaluation.  As the puretone threshold for the left ear was not 55 decibels or more at each of the four specified frequencies; or 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, Table VIA is not for application with respect to the left ear.  Again, the right ear has been assigned the highest Roman numeral designation under this Table as well.    

VA treatment records have also been reviewed and considered.  However, while these records document that the Veteran was seen for hearing loss, including hearing aid follow-ups, these records do not provide audiological evaluations for rating purposes.  

The Board notes that in December 2017, the Veteran requested another VA examination.  However, the Veteran gave no reason for this request.  Moreover, there is no indication that the prior March 2017 was inadequate for rating purposes.  The examination report addressed all the criteria necessary to determine the level of severity of the Veteran's hearing loss.  Moreover, there is no evidence of record to support a finding that the Veteran's hearing loss had increased in severity since the prior VA examination.  In an opinion, VA's General Counsel has stated that the Board is not required to remand an appealed disability-benefit claim solely because of the passage of time since an otherwise adequate examination report was prepared.  VAOPGCPREC 11-95 (1995).

The Board now turns to whether an initial rating in excess of 10 percent is warranted for the Veteran's bilateral hearing loss.  Based on the average puretone threshold findings from the VA examinations, when applying Table VII, Diagnostic Code 6100, the findings equate to a 10 percent disability evaluation.  Again, VA clinical records during this period do not address the severity Veteran's bilateral hearing loss.  There is simply no evidence to show that the Veteran met the rating criteria for a higher rating at any point since the award of service connection.  

The Board acknowledges the contentions put forth by the Veteran regarding the fact that he suffers from profound hearing loss of the right ear and the impact of his service-connected bilateral hearing loss on his daily activities.  However, while he can describe the effects on his activities, he is not competent to report findings for rating purposes, as the evaluation must be done by a state-licensed audiologist.  Further, the examination report and the Veteran's statements discussed the functional effects of the Veteran's hearing loss disability.  Thus, the functional effects of the Veteran's hearing loss disability are contemplated by the rating criteria.  Doucette v. Shulkin, 28 Vet. App. 366 (2017); See Martinak v. Nicholson, 21 Vet. App. 447 (2007) (requiring examinations to include assessments of the impact of hearing loss on daily activities).  Moreover, despite the Veteran's deafness in the right ear, both ears are evaluated together when determining the appropriate rating to be assigned.

In conclusion, because assignment of disability ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometry evaluations are rendered, there is no doubt as to the proper evaluation to assign.  Lendenmann, 3 Vet. App. 345; 38 C.F.R. 
§ 4.85, Tables VI, VIA and VII, Diagnostic Code 6100.  Applying the VA audiological test results from the VA audiological evaluations, the Board is compelled to conclude that the preponderance of the evidence is against entitlement to a higher initial rating for bilateral hearing loss.  

The Board has considered whether staged ratings under Fenderson, supra, are appropriate for the Veteran's service-connected bilateral hearing loss; however, the Board finds that his symptomatology has been stable throughout the appeal period.  Therefore, assigning staged ratings for such disability is not warranted. 

The Board has also considered the applicability of the benefit of the doubt doctrine.  However, the preponderance of the evidence is against the Veteran's claim for an initial rating in excess of 10 percent for his bilateral hearing loss at any point since the award of service connection.  Therefore, the benefit of the doubt doctrine is not applicable in the instant appeal and his initial rating claim must be denied.  38 U.S.C.A. § 5107; 38 C.F.R. §§ 4.3, 4.7.


ORDER

An initial higher rating in excess of 10 percent for bilateral hearing loss is denied
	



____________________________________________
R. FEINBERG
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs