Citation Nr: 1801993	
Decision Date: 01/10/18    Archive Date: 01/23/18

DOCKET NO.  13-36 071	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee


THE ISSUE

Entitlement to a compensable initial evaluation for bilateral hearing loss for the period prior to April 20, 2017.


REPRESENTATION

Appellant represented by:	Tennessee Department of Veterans' Affairs


WITNESSES AT HEARING ON APPEAL

Appellant and Appellant's Spouse


ATTORNEY FOR THE BOARD

Robert J. Burriesci, Counsel

INTRODUCTION

The Veteran had active military service from February 1964 to January 1968. 

These matters come before the Board of Veterans' Appeals (Board) from a September 2011 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Nashville, Tennessee. 

In November 2016, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge.  A transcript of that hearing is of record. 

The issue was previously before the Board in February 2017 when it was remanded for additional development. 

In an August 2017 rating decision, the RO increased the evaluation of the Veteran's bilateral hearing loss from noncompensable to 100 percent disabling, effective April 20, 2017, and awarded entitlement to special monthly compensation based on loss of use of both ears, effective April 20, 2017.  As the increases do not represent the maximum ratings available for the condition for the period on appeal prior to April 20, 2017, the Veteran's claim for a higher evaluation for the period prior to April 20, 2017, remain in appellate status.  See AB v. Brown, 6 Vet. App. 35 (1993).

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) (2012).


FINDING OF FACT

Prior to April 20, 2017, the Veteran's bilateral hearing loss manifested no more than Level II hearing impairment in the right ear and Level I hearing impairment in the left ear.  

CONCLUSION OF LAW

The criteria for assignment of a compensable initial evaluation for bilateral hearing loss, for the period prior to April 20, 2017, have not been met.  38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.321, 4.85, 4.86, Diagnostic Code 6100 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Duties to Notify and Assist

With respect to the Veteran's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions.  See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326.  

The Board ordered in the February 2017 remand that attempts be made to obtain and associate with the claims file any outstanding 2013 VA medical examination, that names and addresses of all medical care providers who treated the Veteran for hearing loss complaints since October 2013 be obtained from the Veteran, and that the Veteran be afforded a VA examination.  

A February 2014 VA treatment note indicates that the Veteran was scheduled for an audiology appointment at the Johnson City Community Health Center (JCCHC) in February 2014.  In February 2017 the Veteran was asked to identify medical treatment from any private physicians or hospitals and to identify any treatment from a VA medical facility.  The Veteran did not respond to this request.

In April 2017 the Veteran was afforded a VA medical examination.

Thereafter, in a Report of General Information dated in July 2017, it was noted that there was no proof of any medical examination found at the Mountain Home, St. Louis, Dayton, W.G. Hefner, Columbus, or Durham VA Medical Centers regarding the Veteran.

The Board is satisfied that there has been substantial compliance with the remand directives and the Board may proceed with review.  Stegall v. West, 11 Vet. App. 268 (1998).

II.  Higher Evaluation

Given the grant of a 100 percent rating from April 20, 2017, the question on appeal is limited to the Veteran's entitlement to a compensable initial evaluation for bilateral hearing loss for the period prior to that date.

Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity.  38 U.S.C. § 1155; 38 C.F.R. Part 4.  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 disabilities upon the person's ordinary activity, 38 C.F.R. § 4.10.  See Schafrath v. Derwinski, 1 Vet. App. 589 (1991).

Staged ratings are appropriate in any increased-rating claim in which distinct time periods with different ratable symptoms can be identified.  Hart v. Mansfield, 21 Vet. App. 505 (2007).

Evaluations of defective hearing range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of speech discrimination tests together with the average hearing threshold levels as measured by pure tone audiometry tests in the frequencies 1,000, 2,000, 3,000, and 4,000 cycles per second (Hertz).  To evaluate the degree of disability for service-connected hearing loss, the rating schedule establishes eleven auditory acuity levels, designated from level I for essentially normal acuity through level XI for profound deafness.  38 C.F.R. § 4.85.  Examinations are conducted without the use of hearing aids.  38 C.F.R. § 4.85 (a).  Disability ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered.  See Bruce v. West, 11 Vet. App. 405, 409 (1998), quoting Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992).

In the rating action on appeal, the RO granted service connection and assigned an initial noncompensable evaluation effective February 16, 2011.

The Veteran was afforded a VA examination in June 2011.  On the authorized audiological evaluation, pure tone thresholds, in decibels, were as follows:



HERTZ



1000
2000
3000
4000
RIGHT
35
50
55
65
LEFT
35
45
60
60

Speech audiometry revealed speech recognition ability of 90 percent in the right ear and of 92 percent in the left ear.  The examiner noted that the there was no need for medical follow up for an ear or hearing problem.  The disability's effect on occupation was noted as significant and the impact on occupational activities was hearing difficulty.  There were no effects on usual daily activities.  

Pure tone threshold levels averaged 51 in the right ear and 50 in the left ear.  Under Table VI, when considered with the Veteran's speech audiometry results, this corresponds to category II hearing loss in the right ear and category I hearing loss in the left ear.  These categories correspond with a noncompensable disability rating under Table VII.

It has been established that an audiologist must provide a description of the functional effects caused by a hearing loss disability.  See Martinak v. Nicholson, 21 Vet. App. 447 (2007).  The VA examination addresses the functional and daily life effects of the Veteran's hearing loss disability.  The examination discusses the impact on the Veteran's occupational and usual daily activities.  

In July 2014 the Veteran underwent an audiology evaluation.  The Veteran's VA examination results from June 2011 were identified and indicated to reveal mild to moderately-severe sensorineural hearing loss.  The Veteran reported that he was not feeling well and did not want a hearing test because he did not believe there was a significant change in his hearing since his last evaluation.  He did not want to wear hearing aids.  

At the hearing before the undersigned in November 2016 the Veteran reported that he had a problem understanding what was being said.  His spouse reported that she had to "holler" and that the television had to be up loud.  The Veteran reported that he had a VA examination for his hearing subsequent to his examination in 2011.

The audiometric evaluation discussed above does not reveal results warranting a compensable evaluation for bilateral hearing loss prior to April 20, 2017.  As such, a higher initial evaluation for bilateral hearing loss, for the period prior to April 20, 2017, is denied.

The Board has also considered the lay statements that the Veteran's hearing loss is worse than evaluated during the period prior to April 20, 2017.  The Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses.  Layno v. Brown, 6 Vet. App. 465 (1994).  He is not, however, competent to identify a specific level of disability of this disorder according to the appropriate diagnostic codes.  Such competent evidence concerning the nature and extent of the Veteran's hearing loss has been provided by the medical personnel who have examined him during the appeal period prior to April 20, 2017, and who have rendered pertinent opinions in conjunction with the evaluations.  The medical findings (as provided in the examination report and the clinical records) directly address the criteria under which this disability is evaluated.  As such, the Board finds these records to be more probative than the subjective complaints of increased symptomatology.

ORDER

Entitlement to a compensable initial evaluation for bilateral hearing loss for the period prior to April 20, 2017, is denied.




____________________________________________
M. E. LARKIN
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs