Citation Nr: 1802242	
Decision Date: 01/11/18    Archive Date: 01/23/18

DOCKET NO.  16-12 617	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas


THE ISSUES

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

2.  Entitlement to service connection for tinnitus, to include as secondary to service-connected bilateral hearing loss.


REPRESENTATION

Veteran represented by:	Texas Veterans Commission


ATTORNEY FOR THE BOARD

T. Carter, Counsel




INTRODUCTION

The Veteran served on active duty in the United States Army from November 1963 to November 1965.

This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas.

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).

The issue of entitlement to service connection for tinnitus, to include as secondary to service-connected bilateral hearing loss, is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).


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 II hearing in the left ear.


CONCLUSION OF LAW

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




REASONS AND BASES FOR FINDING AND CONCLUSION

Neither the Veteran nor his representative have raised any issues with the duty to notify or duty to assist.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument).

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 March 2012.  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 July 2013 VA examiner noted functional impact from the Veteran's hearing loss.

At the July 2013 VA audiological examination, the Veteran reported his functional impact as having occasional difficulty during telephone conversations and trouble during face-to-face conversations, especially when noise is present.  His pure tone thresholds, in decibels, were as follows: 




HERTZ



500
1000
2000
3000
4000
RIGHT
45
45
50
75
85
LEFT
35
35
40
60
70

The average pure tone threshold was 64 in the right ear and 51 in the left ear.  His word recognition score using the Maryland CNC test was 80 percent in the right ear and 84 percent in the left ear.

These audiometric findings equate to Level IV hearing in the right ear and Level II 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 0 percent disability rating for bilateral hearing impairment.  As a result, the currently assigned noncompensable (0 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 bilateral puretone thresholds in July 2013 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.  As a result, use of table VIa is not for application in this case.  See 38 C.F.R. § 4.86.

The Board further notes that the July 2013 VA examiner noted that test results were valid for rating purposes and use of speech discrimination score was appropriate for the Veteran.

In the August 2013 notice of disagreement, the Veteran reported that "[e]ven though [his] hearing is not completely lost [he] encounter[s] communication problems."  He explained that it is embarrassing because at times during conversations he cannot clearly understand what is being discussed so he hesitates to answer and just listens.

At the July 2015 VA audiological examination, the examiner noted the following:

This was an increase evaluation and the purpose was to determine the current severity of his hearing status.  No audiologic information is reported for Veteran as he could not or would not provide valid and reliable hearing test results.  Spondee thresholds obtained were 30 decibels higher than puretone averages reported for left and right ears.  Veteran refused to guess at any speech discrimination words in his left ear at the volume he selected as comfortable and clear, despite achieving 84 percent speech discrimination in his July 2013 examination.  After multiple reinstructions Veteran did make a few guesses in the right ear, however, these results were completely inconsistent with historical audiologic data (80 percent speech discrimination [in] July 2013).

In light of the VA examiner's conclusion in July 2015, a Roman numeral value cannot be designated for hearing impairment of either ear pursuant to Table VI.  See 38 C.F.R. § 4.85. 

In the February 2016 substantive appeal, the Veteran reported his hearing loss continues and is getting worse.

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 compensable rating 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 compensable rating for bilateral hearing loss is denied.


REMAND

An additional VA medical opinion is needed for the issue of entitlement to service connection for tinnitus, to include as secondary to service-connected bilateral hearing loss.  See 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.310 (2017).

During the course of the appeal, the Veteran contends that his tinnitus began in 2008 and is due to his in-service noise exposure.  Following the July 2013 VA QTC audiological examination, the examiner provided a medical opinion (in the negative) on a direct basis between the Veteran's tinnitus and in-service noise exposure.  The examiner also opined that "the etiology of [the Veteran's] tinnitus is less likely than not associated with hearing loss [because] onset of tinnitus is after onset of hearing loss."

After review of the record, the Board finds that a theory of entitlement for tinnitus as secondary to service-connected bilateral hearing loss has been raised and a medical opinion properly addressing the secondary basis regarding aggravation has not been provided in this case.  When VA undertakes to provide a VA medical opinion, it must ensure that the opinion is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).

Accordingly, the case is REMANDED for the following actions:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  Expedited handling is requested.)

1.  Return the Veteran's claims file to the examiner who conducted the July 2013 VA audiological examination so a supplemental opinion may be provided.  If that examiner is no longer available provide the Veteran's claims file to a similarly qualified clinician.  The entire claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt of these materials in any reports generated.  A new examination is only required if deemed necessary by the examiner.

The examiner must opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's tinnitus is aggravated beyond its natural progression by his service-connected bilateral hearing loss.

The examiner must provide all findings, along with a complete rationale for his or her opinions in the examination report.  If the above requested opinion cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion.

2.  Then, the AOJ should review the medical opinion to ensure that the requested information was provided.  If the opinion is deficient in any manner, the AOJ must implement corrective procedures.

3.  Then, readjudicate the claim.  If the decision is adverse to the Veteran, issue a Supplemental Statement of the Case and allow the applicable time for response.  Then, return the case to the Board.

The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C. §§ 5109B, 7112 (2012).



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


Department of Veterans Affairs