Citation Nr: 1801805	
Decision Date: 01/10/18    Archive Date: 01/23/18

DOCKET NO.  16-24 558	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin


THE ISSUE

Entitlement to an initial rating in excess of 30 percent for bilateral hearing loss.


REPRESENTATION

Veteran represented by:	Wisconsin Department of Veterans Affairs


ATTORNEY FOR THE BOARD

T. Carter, Counsel


INTRODUCTION

The Veteran served on active duty in the United States Army from December 1952 to September 1954.  His awards and decorations include the Combat Infantry Badge. 
This case comes before the Board of Veterans' Appeals (Board) on appeal from a February 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin.  The rating decision granted service connection for bilateral hearing loss and assigned an initial 30 percent disability rating, effective May 28, 2014.  

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  38 U.S.C. § 7107(a)(2) (2012).


FINDING OF FACT

For the entire initial rating period, the Veteran's service-connected bilateral hearing loss has not been manifested by hearing acuity worse than Level IV hearing in the right ear and worse than Level IX hearing in the left ear.


CONCLUSION OF LAW

The criteria for entitlement to an initial rating in excess of 30 percent for bilateral hearing loss have not been met.  38 U.S.C. §§ 1155, 5103, 5103A (2012); 38 C.F.R. §§ 3.102, 3.159, 3.655, 4.1, 4.2, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

Duties to Notify and Assist

As service connection, an initial rating, and an effective date have been assigned for the issue on appeal, the notice requirements of 38 U.S.C. § 5103(a) have been met.

VA fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim to include where warranted by law, and affording the claimant VA examinations and a hearing before the Board.  38 U.S.C. §§ 5103, 5103A.  There is no evidence that additional records have yet to be requested.

A September 2016 notice indicated the Veteran failed to report for the VA audiological examination scheduled in July 2016.  There is no indication as of this date that the Veteran failed to report to this VA examination for good cause; therefore, the claim on appeal will be decided based on the evidence of record.  See 38 C.F.R. § 3.655.

In sum, there is no evidence of any VA error in notifying or assisting him that reasonable affects the fairness of this adjudication.  38 C.F.R. § 3.159(c).

Higher Rating for Bilateral Hearing Loss

Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity.  Individual disabilities are assigned separate diagnostic codes.  38 U.S.C. § 1155; 38 C.F.R. § 4.1.  If two evaluations are potentially applicable, 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.  When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor.  38 C.F.R. § 4.3.

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).  The Veteran's disability should be viewed in relation to its history.  38 C.F.R. § 4.1 (2016); Schafrath v. Derwinski, 1 Vet. App. 589 (1995).  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 May 2014.  Fenderson v. West, 12 Vet. App. 119 (1999).  

In evaluating service-connected hearing loss, disability ratings are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are performed.  Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992).  Evaluations of bilateral hearing loss range from noncompensable to 100 percent based on an organic impairment of hearing acuity, as measured by controlled speech discrimination tests in conjunction with the average hearing threshold, as measured by puretone audiometric tests in the frequencies of 1000, 2000, 3000 and 4000 cycles per second.  The rating schedule establishes 11 auditory acuity Levels designated from Level I for essentially normal hearing acuity through Level XI for profound deafness. 

VA audiological evaluations are conducted using a controlled speech discrimination test together with the results of puretone audiometry tests.  The vertical line in Table VI (printed in 38 C.F.R. § 4.85) represents nine categories of the percentage of discrimination based on a controlled speech discrimination test.  The horizontal columns in Table VI represent 9 categories of decibel loss based on the puretone audiometry test.  The numeric designation of impaired hearing (Levels I through XI) is determined for each ear by intersecting the vertical row appropriate for the percentage of discrimination and the horizontal column appropriate to the puretone decibel loss.  The percentage evaluation is found from Table VII (in 38 C.F.R. § 4.85 and the statement of the case) by intersecting the vertical column appropriate for the numeric designation for the ear having the better hearing acuity and the horizontal row appropriate for the numeric designation for the level for the ear having the poorer hearing acuity.  See 38 C.F.R. § 4.85. 

Regulations also provide that, in cases of exceptional hearing loss, defined as 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).  The provisions of 38 C.F.R. § 4.86(b) further provide that when the puretone threshold is 30 decibels or less at 1,000 hertz and 70 decibels or more at 2000, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or VIa, whichever results in the higher numeral.  That numeral will then be evaluated to the next higher Roman numeral. 

In addition to dictating objective test results, a VA audiologist must describe the functional effects caused by a hearing disability in his or her final report.  Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007).  In this case, the November 2014 
VA examiner noted functional impact from the Veteran's hearing loss.

At the November 2014 VA audiological examination, the Veteran reported being unable to hear sounds that are softer than a train due to his hearing loss.  His pure tone thresholds, in decibels, were as follows: 




HERTZ



500
1000
2000
3000
4000
RIGHT
20
25
60
80
80
LEFT
25
15
105
95
95

The average pure tone threshold was 61 in the right ear and 78 in the left ear.  His word recognition score using the Maryland CNC test was 78 percent in the right ear and 50 percent in the left ear.  

These audiometric findings equate to Level IV hearing in the right ear and Level IX hearing in the left ear.  See 38 C.F.R. § 4.85, Table VI.  When those values are applied to Table VII, they result in a 30 percent disability rating for bilateral hearing impairment.  As a result, the currently assigned 30 percent disability rating for the Veteran's bilateral hearing loss is accurate and appropriately reflects this disability under the provisions of 38 C.F.R. § 4.85.

The right ear puretone thresholds in November 2014 do not qualify as exceptional patterns of hearing, as the Veteran did not have puretone thresholds of 55 decibels or more at each of the frequencies of 1000, 2000, 3000 and 4000 hertz or a puretone threshold of 30 decibels or less at 1000 hertz and 70 decibels or more at 2000 hertz.  

In contrast, the left ear puretone thresholds in November 2014 qualify as exceptional patterns of hearing, as the Veteran had a puretone threshold of 15 decibels at 1000 hertz and 105 decibels at 2000 hertz.  See 38 C.F.R. § 4.86(b).  Nevertheless, the Roman numeral designation for hearing impairment in the left ear is higher from Table VI than from Table VIa, so the audiometric finding of Level IX in the left ear will be used in this case, as discussed above.

The Board further notes that the November 2014 VA examiner noted that test results were valid for rating purposes and use of speech discrimination score was appropriate for this Veteran.

In the May 2016 substantive appeal, the Veteran reported VA has offered him hearing aids but does not want to wear them because they are known to create problems. 

Review of VA treatment records document the Veteran reported in July 2015 that he "does have some hearing loss."  Clinical testing in July 2015 revealed hearing loss in the right ear (AD) moderate to severe, sloping sensorineural hearing loss (SNHL) from 2000 to 8000 Hertz and left ear (AS) severe to profound sensorineural hearing loss from 2000 to 8000 Hertz.  These results were recorded without measurements in decibels and it was also noted the Veteran "resists aids."  A June 2016 record noted the Veteran's learning barriers include hearing but the Veteran does not have hearing aids.

The Board has considered the Veteran's reported history of symptomatology related to the service-connected bilateral hearing loss.  He is competent to report a decrease in hearing acuity because this requires only personal knowledge as it comes through ones senses.  Layno v. Brown, 6 Vet. App. 465, 470 (1994).  His assertions are also credible.  However, the assignment of a disability rating for hearing impairment is derived by a mechanical application of the Rating Schedule to the numeric designations based on the audiology examination results.  See Lendenmann, 3 Vet. App. at 349.  In this case, such competent evidence concerning the nature and extent of the Veteran's disability has been provided in the medical evidence of record.  The Veteran in this case is not competent to measure his level of hearing loss and apply it to the rating schedule, as the record does not show he has the expertise or training to conduct audiographic testing to measure the degree of his bilateral hearing loss.

The rating criteria contemplate speech reception thresholds and ability to hear spoken words on Maryland CNC testing.  The functional impact that the Veteran describes is contemplated by the rating criteria.  Doucette v. Shulkin, 28 Vet. App. 366 (2017).  

The Board has considered the possibility of staged ratings and finds that the proper rating for bilateral hearing loss has been in effect for the entire appeal period.  Accordingly, staged ratings are inapplicable.  See Hart, 21 Vet. App. at 505.

For these reasons, an initial rating in excess of 30 percent for bilateral hearing loss is denied.  38 C.F.R. §§ 4.3, 4.7.

Finally, a total disability rating based on individual unemployability (TDIU) is not for consideration because the Veteran does not contend, and the evidence does not show, that his service-connected disability renders 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 rating in excess of 30 percent for bilateral hearing loss is denied.



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

Department of Veterans Affairs