Citation Nr: 1802400	
Decision Date: 01/11/18    Archive Date: 01/23/18

DOCKET NO.  17-10 486	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Togus, Maine


THE ISSUE

Entitlement to a compensable initial rating for service-connected bilateral hearing loss disability. 


REPRESENTATION

Veteran represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

Sara Schinnerer, Counsel


INTRODUCTION

The Veteran served on active duty in the United States Coast Guard from January 1959 to January 1979.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Togus, Maine, which in pertinent part granted service connection for bilateral hearing loss disability, and assigned a noncompensable evaluation effective from October 30, 2015.  

The record before the Board consists solely of the Veteran's electronic records within Virtual VA and the Veterans Benefits Management System (VBMS). 

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  38 U.S.C.A. § 7107(a)(2) (West 2014).


FINDING OF FACT

Throughout the entire rating period on appeal, the Veteran's hearing impairment has been no worse than Level I in the right ear and VII in the left ear.  


CONCLUSION OF LAW

The criteria for a compensable initial evaluation for bilateral hearing loss disability have not been met.  38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.85, Diagnostic Code 6100 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

Notice & Assistance 

The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2014), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2017), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim.

The record reflects that all identified VA and private treatment records have been obtained.  Moreover, the Veteran has been provided an appropriate VA examination.  The Veteran has not identified any outstanding evidence that should be obtained to substantiate his claim.  The Board is also unaware of any such evidence. 

In sum, the Board is satisfied that VA's duty to assist the Veteran in the development of the facts pertinent to this appeal have been met.  

Accordingly, the Board will address the merits of the matter.

Legal Criteria

Disability ratings are determined by applying the criteria set forth in the 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.A. § 1155 (2014); 38 C.F.R. § 4.1 (2017). 

Disability ratings for hearing loss disability are derived from mechanical application of the rating schedule to the numeric designations resulting from audiometric testing.  See Lendenmann v. Principi, 3 Vet. App. 345 (1992). 

The rating schedule establishes 11 auditory hearing acuity levels based upon average puretone thresholds and speech discrimination.  See 38 C.F.R. § 4.85. 

An examination for hearing impairment for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a puretone audiometry test.  Examinations will be conducted without the use of hearing aids.  38 C.F.R. § 4.85(a).  

Table VI, "Numeric Designation of Hearing Impairment Based on Puretone Threshold Average and Speech Discrimination," is used to determine a Roman numeral designation (I through XI) for hearing impairment based on a combination of the percent of speech discrimination (horizontal rows) and the puretone threshold average (vertical columns).  The Roman numeral designation is located at the point where the row and column intersect.  38 C.F.R. § 4.85(b). 

Table VIa, "Numeric Designation of Hearing Impairment Based Only on Puretone Threshold Average," is used to determine a Roman numeral designation (I through XI) for hearing impairment based only on puretone threshold average.  Table VIa is used when the examiner certifies that the use of the speech discrimination test is not appropriate due to language difficulties, inconsistent speech discrimination scores, etc., or when indicated under the provisions of § 4.86.  38 C.F.R. § 4.85(c). 

"Puretone threshold average" as used in Tables VI and VIa is the sum of the puretone thresholds at 1000, 2000, 3000 and 4000 Hertz, divided by four.  This average is used in all cases (including those of § 4.86) to determine a Roman numeral designation from Tables VI and VIa.  38 C.F.R. § 4.85(d). 

Table VII, "Percentage Evaluation for Hearing Impairment," is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment in each ear.  The horizontal rows represent the ear having better hearing and the vertical columns represent the ear having the poorer hearing.  The percentage evaluation is located at the point where the row and the column intersect.  38 C.F.R. § 4.85(e). 

Provisions for evaluating exceptional patterns of hearing impairment are as follows: 

(a)  When the puretone thresholds 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. 

(b) When the puretone thresholds are 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; the numeral will then be elevated to the next higher Roman numeral.  Each ear will be evaluated separately.  38 C.F.R. § 4.86.

Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary.  The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary.  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107 (West 2014); 38 C.F.R. § 3.102 (2017); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).  

To deny a claim on its merits, the evidence must preponderate against the claim.  Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54.

Factual Background and Analysis

In accordance with 38 C.F.R. §§ 4.1, 4.2, 4.41, 4.42 (2015) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the service-connected disability.  The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes.  Moreover, the Board is of the opinion that this case presents no evidentiary considerations which would warrant an exposition of remote clinical histories and findings pertaining to this disability.  

As noted above, in the March 2016 rating decision on appeal, service connection for bilateral hearing loss was granted, and a noncompensable initial evaluation was assigned effective from October 30, 2015. 

The Veteran underwent a VA audiometric examination in March 2016.  The Veteran's puretone thresholds were as follows:   


HERTZ
 
1000
2000
3000
4000
RIGHT
35
40
50
85
LEFT
          50
          65
75
90

The puretone average for his right ear was 53.  The puretone average for his left ear was 70.  Speech recognition was 96 percent for his right ear and 64 percent for the left ear.  The examiner diagnosed bilateral sensorineural hearing loss.  

Applying the values above to Table VI results in a Level I Roman numeral designation for the right ear and a Level VII Roman numeral designation for the left ear.  Application of Level I and Level VII designations to Table VII results in a noncompensable evaluation.  Neither ear demonstrates an exceptional pattern of hearing impairment under the provisions of 38 C.F.R. §§ 4.86(a) or 4.86(b).  The examiner noted that the Veteran's current bilateral hearing loss disability did not impact ordinary conditions of daily life, to include his ability to work. 

Upon review of the evidence of record, it is evident the criteria for a compensable evaluation for the rating period on appeal, under Diagnostic Code 6100 are not met.  Although the report of the March 2016 audiological evaluation clearly shows the Veteran has hearing loss, it did not show sufficient hearing impairment to warrant a compensable evaluation and there is no other evidence showing sufficient hearing impairment to warrant a compensable rating during the rating period on appeal.  

The Court has held that, "in addition to dictating objective test results, a VA audiologist must fully 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 regard, the March 2016 VA examiner noted that the Veteran's bilateral hearing loss did not impact ordinary conditions of daily life, to include his ability to work. 

A layperson is competent to testify in regard to the onset and continuity of symptomatology.  Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Falzone v. Brown, 8 Vet. App. 398, 403 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). However, the rating schedule for hearing loss is a reasonable exercise of the Secretary's rulemaking authority.  Martinak, 21 Vet. App. 447.  Whereas the Veteran's hearing loss has not been shown by medical or lay evidence to be worse than that measured during audiological evaluation.

Consideration has been given to assigning a staged rating; however, at no time during the period under review does the disability warrant a compensable evaluation under the schedular criteria.  See Hart v. Mansfield, 21 Vet. App. 505, 510 (2007). 

Finally, the Board has considered whether this case should be referred to the Director of the VA Compensation Service for extra-schedular consideration under 38 C.F.R. § 3.321(b)(1).  The Court has held that the threshold factor for extra-schedular consideration is a finding on part of the RO or the Board that the evidence presents such an exceptional disability picture that the available schedular evaluations for the service-connected disability at issue are inadequate.  Therefore, initially, there must be a comparison between the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for the disability.  If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned evaluation is therefore adequate, and no referral for extra-schedular consideration is required.  Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). 

In the case at hand, the manifestations of the of the disability, hearing impairment in each ear, are contemplated by the schedular criteria and higher ratings are provided for greater impairment.  Accordingly, the Board has determined that referral of this case for extra-schedular consideration is not in order.

In reaching the foregoing determination, the Board has considered the doctrine of reasonable doubt, but has determined that it is not applicable because the preponderance of the evidence is against the appeal.  Gilbert, 1 Vet. App. 49, 54.


ORDER

Entitlement to a compensable initial evaluation for bilateral hearing loss disability is denied. 




____________________________________________
U. R. POWELL
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs