Citation Nr: 1801330	
Decision Date: 01/09/18    Archive Date: 01/19/18

DOCKET NO.  13-32 565	)	DATE
	)
	)

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


THE ISSUE

Entitlement to an initial compensable rating for bilateral hearing loss.


REPRESENTATION

Veteran represented by:	California Department of Veterans Affairs


ATTORNEY FOR THE BOARD

A. Borman, Associate Counsel

INTRODUCTION

The Veteran served on active duty from July 1980 to August 1984.  This matter comes before the Board of Veteran's Appeals (Board) on appeal from an October 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California.  

This appeal was most recently remanded in May 2016 and is now ready for adjudication.


FINDING OF FACT

The Veteran's bilateral hearing loss has been manifested by no worse than Level II hearing impairment in both ears.


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. § 4.85, 4.86a, Diagnostic Code 6100 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

Duties to Notify and Assist

VA has a duty to notify and assist claimants in substantiating claims for VA benefits.  See, e.g., 38 U.S.C. §§ 5103, 5103A (2012) and 38 C.F.R. § 3.159 (2017).  In the instant case, VA provided adequate notice in letters sent to the Veteran.  

VA also has a duty to assist a claimant in the development of a claim.  This duty includes assisting the claimant in the procurement of relevant treatment records and providing an examination when necessary.  38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2017).  The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  Service and VA treatment records as well as VA examinations are associated with the claims file.  

This appeal was remanded by the Board in May 2016 in order for VA to obtain records from the Social Security Administration (SSA).  In October 2016, the VA obtained the requested records.  Thus, the Board is now satisfied there has been substantial compliance with this Remand.  See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999).  Therefore, VA has met its duty to assist with respect to obtaining pertinent evidence.

There is no indication of additional existing evidence that is necessary for a fair adjudication of the claim that is the subject of this appeal.  Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist.  

Increased Ratings

Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity.  Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability.  See 38 C.F.R. § 4.1 (2017).  Separate diagnostic codes identify the various disabilities.  Although the Board typically considers only those factors contained wholly in the rating criteria, it is appropriate to consider factors outside the specific rating criteria when appropriate in order to best determine the level of occupational and social impairment.  See Mauerhan v. Principi, 16 Vet. App. 436 (2002); Massey v. Brown, 7 Vet. App. 204, 208 (1994). 

Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating.  38 C.F.R. § 4.7 (2017).  When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran.  38 C.F.R. § 4.3 (2017).

Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern.  See Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  Nevertheless, in cases where the Veteran's claim arises from a disagreement with the initial evaluation following the grant of service connection, the Board shall consider the entire period of claim to see if the evidence warrants the assignment of different ratings for different periods of time during these claims a practice known as "staged" ratings.  Fenderson v. West, 12 Vet. App. 119 (1999).

Ratings for hearing loss, which range from noncompensable to 100 percent, are based on an organic impairment of hearing acuity as demonstrated by the results of speech discrimination tests together with the average hearing threshold levels as measured by pure tone audiometry tests in the frequencies of 1,000, 2,000, 3,000, and 4,000 Hertz (Hz).  The degree of disability from service-connected hearing loss is rated based on 11 auditory acuity levels with Level I, representing essentially normal acuity, through Level XI, representing profound deafness.  See 38 C.F.R. § 4.85.

An alternative rating method may be used when the pure tone threshold at each of the four specified frequencies (1,000, 2,000, 3,000, and 4,000 Hertz ) is 55 decibels or more, or when the pure tone threshold is 30 decibels or less at 1,000 Hz and 70 decibels or more at 2,000 Hz.  38 C.F.R. § 4.86 (2017).  VA will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa based on whichever results in the higher numeral.  Id.  In hearing loss rating cases, an examination for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a pure tone audiometry test.  Examinations are conducted without the use of hearing aids.  38 C.F.R. § 4.85(a).

The Board determines that a compensable rating is not warranted for the Veteran's bilateral hearing loss.  At an audiological examination in September 2011, he reported not being able to hear clearly when people talk to him.  On the authorized audiological evaluation, his pure tone thresholds, in decibels, were as follows: 




HERTZ



1000
2000
3000
4000
AVG.
RIGHT
20
20
20
30
22.5
LEFT
20
20
20
40
25

Speech recognition scores were 88 percent bilaterally.  When utilizing Table VI, the Veteran exhibits Level II hearing impairment in both ears.  Applying these results to Table VII, a noncompensable percent rating is for application.  

The Veteran underwent an additional audiological examination in December 2015.  He stated that he was having difficulties in understanding over the cell phone along with miscommunicating with soft spoken speech.  He stated that he has to read lips in order to compensate for his hearing loss.  He expressed that he is disturbed with his hearing loss because people feel that he is ignoring them.  On the authorized audiological evaluation, his pure tone thresholds, in decibels, were as follows: 




HERTZ



1000
2000
3000
4000
AVG.
RIGHT
25
20
20
35
25
LEFT
30
30
30
55
36.25

Speech recognition scores were 100 percent for the right ear and 98 percent for the left ear.  When utilizing Table VI, the Veteran exhibits Level I hearing impairment in both ears.  Applying these results to Table VII, a noncompensable percent rating is for application.  

Therefore, based on the evidence of record, an initial compensable rating is not warranted.

In considering the appropriate disability rating, the Board has also considered the Veteran's statements that his disability is worse than the rating he currently receives.  In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant.  See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990).

Competency of evidence differs from weight and credibility.  Although the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, he is not competent to identify a specific level of disability of his hearing loss disability according to the appropriate diagnostic code.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). 

On the other hand, such competent evidence concerning the nature and extent of the Veteran's hearing loss disability has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations.  The medical findings (as provided in the examination reports) directly address the criteria under which these disabilities are evaluated.  In other words, the mechanical application of the rating criteria for evaluating bilateral hearing loss is consistent with a noncompensable rating.  


ORDER

A compensable rating for bilateral hearing loss is denied.



____________________________________________
H.M. WALKER
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs