Citation Nr: 1803518	
Decision Date: 01/18/18    Archive Date: 01/29/18

DOCKET NO.  13-28 603	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Jackson, Mississippi


THE ISSUE

Entitlement to a compensable rating for bilateral hearing loss.


ATTORNEY FOR THE BOARD

L. Barstow, Counsel


INTRODUCTION

The Veteran had active military service from September 1960 to September 1990.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2012 rating decision of the VA Regional Office (RO) in Jackson, Mississippi.  
This issue was remanded in July 2017 for further development.

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

Audiometric testing reveals no worse than Level I hearing acuity bilaterally.


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. §§ 3.159, 4.3, 4.7, 4.85 Diagnostic Code (DC) 6100 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

As a preliminary matter, the Board has reviewed the claims file and finds that there exist no deficiencies in VA's duties to notify and assist that would be prejudicial and require corrective action prior to a final Board determination.  See 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159; Mayfield v. Nicholson, 20 Vet. App. 537 (2006) (corrective action to cure a 38 C.F.R. § 3.159(b) notice deficiency); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004) (timing of notification).

The Board also notes that, to the full extent possible, VA complied with all prior remand instruction requests, and there exist no deficiencies in VA's duties to notify and assist in that regard.  See Stegall v. West, 11 Vet. App. 268 (1998) (a remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order); but see D'Aries v. Peake, 22 Vet. App. 97, 104 (2008) (it is only substantial compliance, rather than strict compliance, with the terms of a remand that is required).

Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities.  Ratings are based on the average impairment of earning capacity.  Individual disabilities are assigned separate diagnostic codes.  See 38 U.S.C. § 1155; 38 C.F.R. § 4.1.  Where entitlement to compensation has already been established, and an increase in the disability rating is at issue, the present level of disability is of primary concern.  Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings.  See Francisco v. Brown, 7 Vet. App. 55 (1994); 38 C.F.R. § 4.2.  Staged ratings are, however, 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.  The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim.  See generally Hart v. Mansfield, 21 Vet. App. 505 (2007).  Where there is a question as to which of two evaluations shall be applied, 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.  See 38 C.F.R. § 4.7.  

Disability evaluations for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered.  See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992).  Examinations are conducted using the controlled speech discrimination tests (Maryland CNC) together with the results of the puretone audiometry test.  See 38 C.F.R. § 4.85.

The results are then analyzed using tables contained in 38 C.F.R. § 4.85, DC 6100.  "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 to determine the Roman numeral designation for hearing impairment from Table VI or VIa.  The appropriate rating is then determined by finding the intersection point for the two Roman numeral designations using Table VII.  As an exceptional pattern of hearing impairment has not been shown, the Board need not further address the provisions of 38 C.F.R. § 4.86.

In this case, a March 2012 VA hearing loss examination revealed average puretone hearing loss of 19 decibels in the right ear and 41 decibels in the left ear.  Speech recognition scores using the Maryland CNC word lists were 92 percent bilaterally.  The Veteran's hearing loss was reported as not impacting ordinary conditions of daily life, including ability to work.  Pursuant to 38 C.F.R. 4.85, Table VI with regards to the Veteran's right ear, his puretone threshold average and speech discrimination score received a numeric designation of Level I.  Turning to the Veteran's left ear, the foregoing puretone threshold average and speech discrimination score also received a numeric designation of Level I.  Applying the numeric designations to 38 C.F.R. 4.85, Table VII, the Veteran was entitled to a zero percent rating under DC 6100.    

An August 2017 VA hearing loss examination revealed average puretone hearing loss of 18 decibels in the right ear and 43 decibels in the left ear.  Speech recognition scores using the Maryland CNC word lists were 96 percent in the right ear and 92 percent in the left ear.  The Veteran reported having to increase the volume on television/radio and having to be close to someone to hear them.  Pursuant to 38 C.F.R. 4.85, Table VI with regards to the Veteran's right ear, his puretone threshold average and speech discrimination score received a numeric designation of Level I.  Turning to the Veteran's left ear, the foregoing puretone threshold average and speech discrimination score also received a numeric designation of Level I.  Applying the numeric designations to 38 C.F.R. 4.85, Table VII, the Veteran was entitled to a zero percent rating under DC 6100.    

Outside of these two examinations, there are no other contemporaneous audiological testing results of record (i.e., pure tone threshold and Maryland CNC testing), and as such these two examinations constitute the only competent evidence of record for purposes of applying 38 C.F.R. § 3.385.  Disability evaluations for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered.  See Lendenmann, 3 Vet. App. at 349.  The Board has applied the results of the examinations during this appeal to 38 C.F.R. 4.85, Table VII, and a compensable rating is not warranted as shown above.  As per Martinak v. Nicholson, 21 Vet. App. 447, 455-56 (2007), the examinations reflect consideration of functional limitations, and the Veteran has not asserted prejudice in those examination findings.  In making this determination, the Board notes that the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record.  See Doucette v. Shulkin, 28 Vet. App. 366 (2017).


ORDER

Entitlement to a compensable rating for bilateral hearing loss is denied.



____________________________________________
A. C. MACKENZIE 
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs