Citation Nr: 1801300	
Decision Date: 01/09/18    Archive Date: 01/19/18

DOCKET NO.  14-12 868	)	DATE
	)
	)

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


THE ISSUE

Entitlement to an initial compensable disability rating for bilateral hearing loss.  


REPRESENTATION

Veteran represented by:	California Department of Veterans Affairs


ATTORNEY FOR THE BOARD

N. Stevens, Associate Counsel


INTRODUCTION

The Veteran served on active duty from August 1968 to August 1973.  

This matter comes before the Board of Veterans' Appeals (Board) from a November 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California.  

This case was remanded by the Board twice.  In its October 2015 remand, the Board directed the AOJ to obtain additional treatment records and this was done.  In its February 2016 remand, the Board directed the RO to schedule the Veteran for an audiology examination.  The examination was provided in June 2016.  There was substantial compliance with the remand directives.  Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008).  

FINDING OF FACT

During the period on appeal, the Veteran's bilateral hearing loss was manifested by no worse than a Level I in the left ear and Level V in the right ear.  


CONCLUSION OF LAW

The criteria for an initial compensable disability rating for bilateral hearing loss have not been met.  38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.385, 4.1-4.14, 4.85, 4.86, Diagnostic Code 6100 (2017).  


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Duty to Notify and Assist

VA's duty to notify was satisfied by an August 2009 letter.  38 U.S.C. §§ 5102, 5103, 5103A (2012); 38 C.F.R. § 3.159 (2015); Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).  
With regard to the duty to assist, the Veteran's service treatment records, VA medical treatment records, and indicated private medical records have been obtained.  

The Veteran was provided with VA examinations in January 2010 and June 2016.  As discussed in more detail below, the VA examinations include a review of the Veteran's pertinent pre-service, service, and post-service history, clinical findings, and diagnoses and the findings were supported by medical rationale.  The examinations are adequate for adjudication purposes.  McLendon v. Nicholson, 20 Vet. App. 79; Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  
II.  Increased Initial Disability Rating for Bilateral Hearing Loss  

Disability ratings are determined by applying the criteria established in VA's Schedule for Rating Disabilities, which is based upon the average impairment of earning capacity.  Individual disabilities are assigned separate Diagnostic Codes.  38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.20 (2017).  When a question arises as to which of two ratings applies under a particular Diagnostic Code, the higher evaluation is assigned if the disability more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7 (2017).  Consideration must be given to increased evaluations under other potentially applicable Diagnostic Codes.  Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991).  

Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings.  Hart v. Mansfield, 21 Vet. App. 505 (2007) (citing Fenderson v. West, 12 Vet. App. 119, 126 (1999)).  Given the nature of the present claim for a higher initial evaluation, the Board has considered all evidence of severity since the effective date for the award of service connection in June 2009.  

The Veteran contends that his bilateral hearing loss is more disabling than the non-compensable rating that the VA has assigned him.  

Ratings of 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 hearing threshold levels as measured by pure tone audiometry tests in the frequencies 1000, 2000, 3000, and 4000 Hertz.  To rate the degree of disability for hearing loss, the Rating 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 (2016).  The assignment of disability ratings for 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).  

There are also exceptional patterns of hearing impairment.  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) (2017).  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.  38 C.F.R. § 4.86 (b) (2017).  

The Veteran underwent a VA audiology examination in January 2010.  He stated that he had difficulty understanding speech because of his hearing loss, which is a description of the functional impact of his hearing loss.  See Martinak v. Nicholson, 21 Vet. App. 447 (2007).  His puretone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
25
45
65
70
65
LEFT
5
10
30
40
50

The average puretone threshold was 33 in the left ear and 61 in the right ear.  Speech audiometry revealed speech recognition ability of 96 percent in the left ear and 84 in the right ear.  Based on those results with the utilization of Table VI, the Veteran demonstrated Level I hearing impairment in the left ear and Level III impairment in the right ear.  Applying Level I for the left ear and Level III for the right ear under Table VII results in a noncompensable rating.  38 C.F.R. § 4.85, Diagnostic Code 6100 (2017).  

The Veteran underwent a VA audiology examination in June 2016.  His puretone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
25
65
75
70
65
LEFT
10
15
35
45
55

The average puretone threshold was 38 in the left ear and 69 in the right ear.  Speech audiometry revealed speech recognition ability of 100 percent in the left ear and 80 in the right ear.  Based on those results with the utilization of Table VI, the Veteran demonstrated Level I hearing impairment in the left ear and Level IV impairment in the right ear.  Applying Level I for the left ear and Level IV for the right ear under Table VII results in a noncompensable rating.  38 C.F.R. § 4.85, Diagnostic Code 6100 (2017).  At his June 2016 audiogram, the Veteran's right ear demonstrated an exceptional pattern of hearing loss as set forth in 38 C.F.R. § 4.86(a) because each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz ) is 55 decibels or more.  When applying his pure tone threshold to Table VIa, his right ear has Level V hearing loss, which is more favorable to him.  However, when applying Level I for the left ear and Level V for the right ear to Table VII, a noncompensable rating is still warranted.  

The Veteran underwent a VA audiology consult in October 2011.  His puretone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
25
45
65
80
70
LEFT
20
15
30
45
45

The average puretone threshold was 34 in the left ear and 65 in the right ear.  Speech audiometry revealed speech recognition ability of 100 percent in the left ear and 84 in the right ear.  The audiology report did not specify whether the Maryland CNC Test was used.  Even if the Maryland CNC Test was used, the results of this audiogram would not result in a compensable rating.  Based on those results with the utilization of Table VI, the Veteran demonstrated Level I hearing impairment in the left ear and Level I impairment in the right ear.  Applying Level I for the left ear and Level III for the right ear under Table VII results in a noncompensable rating.  38 C.F.R. § 4.85, Diagnostic Code 6100 (2017).  

The Board notes that the VA audiological examination reports each describe the effects of the Veteran's hearing impairments on his daily life.  See Martinak, 21 Vet. App. 447 (2007).  Explicitly, the Veteran has stated that he has difficulty understanding conversations in noisy areas and has to concentrate throughout any conversation to understand what is being said.  

The Veteran is competent to report symptoms such as the inability to hear conversations, especially in the right ear.  Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011).  His assertions are also credible.  To the extent that the Veteran contends that his hearing loss is more severe than currently evaluated, he is not competent to report that his hearing acuity is of sufficient severity to warrant a certain percent evaluation under VA's tables for rating hearing loss disabilities.  Such an opinion requires medical expertise (training in evaluating hearing impairment) which he does not possess and falls outside the realm of common knowledge of a layperson.  
While the Board is sympathetic to the Veteran's contention that he has difficulty hearing, especially in conversations, the VA rating criteria are definitive and provide for a precise result based on audiometric test results.  His subjective report of difficulty hearing under situational circumstances cannot be the basis for an evaluative rating.  The Board is bound to apply the VA rating schedule, under which the rating criteria are defined by audiometric test findings involving hearing acuity in a controlled laboratory environment, and the rating criteria contemplate the functional impact the Veteran describes.   Doucette v. Shulkin, 28 Vet. App. 366 (2017).  

Based on the above, the criteria for an initial compensable disability rating are not met.  There is no evidence of record to show that the criteria for a compensable disability rating have been met at any time during the appeal period.  Therefore the Board may not stage his rating.  As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application.  38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102 (2017).  Accordingly, an increased rating for bilateral hearing loss is denied.  

Lastly, a claim for individual unemployability due to service-connected disabilities (TDIU) is part of an increased rating claim when the record raises such a claim.  Rice v. Shinseki, 22 Vet. App. 447 (2009).  A TDIU is not warranted in this instance, for the Veteran has not contended nor does the evidence show that his service-connected disabilities render him unemployable.  Rice v. Shinseki, 22 Vet. App. 447 (2009); see also Jackson v. Shinseki, 587 F.3d 1106 (Fed. Cir. 2009).  


ORDER

An initial compensable rating for bilateral hearing loss is denied.  



____________________________________________
D. Martz Ames
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs