Citation Nr: 1803519	
Decision Date: 01/18/18    Archive Date: 01/29/18

DOCKET NO.  14-27 545	)	DATE
	)
	)

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


THE ISSUE

Entitlement to an initial rating in excess of 10 percent for service-connected bilateral hearing loss.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

R. Williams, Counsel


INTRODUCTION

The Veteran served on active duty from August 1960 to October 1962. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, which, in pertinent part, granted service connection for bilateral hearing loss and assigned a disability rating of 10 percent, effective June 26, 2012.  

The Veteran presented testimony at a Board hearing via videoconference with the undersigned Veterans Law Judge in December 2016.

The claim was previously remanded by the Board in March and September 2017 for further development.  The record shows substantial compliance with the remand requests.  Dyment v. West, 13 Vet. App. 141 (1999).  .

In December 2017, the Veteran submitted a letter indicating that he would like back pay back to 1985 for bilateral hearing loss.  In March 2017, the Board denied the claim for entitlement to an effective date prior to June 26, 2012, for the grant of service connection for bilateral hearing loss.  That decision is final because the Veteran did not file a timely appeal to the United States Court of Appeals for Veterans Claims (Court).  Additionally, he has not filed a motion to the Board alleging clear and unmistakable error in that determination or for reconsideration.  This matter is not currently on appeal before the Board.

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) (2012).



FINDING OF FACT

For the entire period on appeal, the Veteran's hearing loss is manifested by no more than level III hearing impairment in the right ear and no more than level VI hearing impairment in the left ear.


CONCLUSION OF LAW

The criteria for an initial disability rating in excess of 10 percent for bilateral hearing loss have not been met for the entire period on appeal.  38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

Duties to Notify and to Assist

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist veterans in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).  Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay evidence, not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).  VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).  The Veteran was advised of VA's duties to notify and assist by notice letter dated in August 2012.  See 38 U.S.C.A. §§ 5102, 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2015); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).

The appeal for an increased rating arises from disagreement with the initial evaluations following the grant of service connection.  The courts have held that once service connection is granted the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial.  See Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007).  Therefore, no further notice is needed under VCAA.  Nevertheless, the August 2012 notice included the provisions for the effective date of the claim and for the degree of disability assignable.  The increased rating issue on appeal was readjudicated in the July 2014 statement of the case (SOC) and the June and December 2017 supplemental SOCs.  Therefore, there was no defect with respect to timing of the VCAA notice.  See Pelegrini v. Principi, 18 Vet. App. 112 (2004).  VA's notice duties have been fulfilled.

With regard to the duty to assist, the record contains the Veteran's service treatment records, VA and private medical records, Board hearing transcript, VA examinations dated in September 2012, March 2013, and March 2017, and the statements of the Veteran.  When VA undertakes to either provide an examination or to obtain an opinion, it must ensure that the examination or opinion is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  The VA examination reports reflect that relevant records were reviewed and the examiners personally interviewed and examined the Veteran, including eliciting a history from him.  Pursuant to the September 2017 Board remand, additional VA treatment records including the March 2013 audiology examination report have been obtained and associated with the record.  Therefore, there has been compliance with the Board's prior remand directives.  Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008).

The Veteran has been afforded a meaningful opportunity to participate effectively in the processing of the claim by submission of statements and arguments.  Neither the Veteran nor his representative has 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 duty to assist argument). In sum, there is no indication of additional notice or evidence that would be reasonably likely to assist the Veteran in substantiating the current claims.

Disability Rating Law and Regulations

Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities.  38 U.S.C.A. § 1155; 38 C.F.R., Part 4 (2017).  Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized.  38 C.F.R. § 4.1.  Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the Veteran working or seeking work.  38 C.F.R. § 4.2.  Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating is to be assigned.  38 C.F.R. § 4.7. 

The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505, 510 (2007).

Evaluations of bilateral defective hearing range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests, together with the average hearing threshold level as measured by puretone audiometric tests at the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hertz).  To evaluate the degree of disability from bilateral defective hearing, the rating schedule establishes 11 auditory acuity levels designated from level I, for essentially normal acuity, through level XI, for profound deafness. 38 C.F.R. § 4.85 (2016).  Ratings of hearing loss disability involve mechanical application of the rating criteria to the findings on official audiometry.  See Lendenmann v. Principi, 3 Vet. App. 345 (1992).  

When the pure tone 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) (2017).  Similarly, if the puretone threshold is 30 decibels or less at 1000 Hz, and 70 decibels or more at 2000 Hz, 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, and that numeral will be elevated to the next higher Roman numeral. 38 C.F.R. § 4.86(b).

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

Analysis

The Veteran contends that a compensable rating is warranted for his bilateral hearing loss for the period prior to August 30, 2012.  The evidence during the applicable period includes a private February 2009 audiogram, and the May 2009 and October 2011 VA examination reports where the Veteran was seen by a VA audiologist and evaluated for hearing loss.  

According to a June 2012 private examination, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
20
20
30
40
50
LEFT
15
30
45
70
80

The average puretone threshold for the right ear was 35 decibels.  The average puretone threshold for the left ear was 56.25 decibels.  However, it is unclear whether the Maryland CNC test, was used, therefore, the test results are not suitable for rating purposes, and are therefore afforded no probative weight.  See 38 C.F.R. §§ 3.385, 4.85(a).

According to a September 2012 VA examination, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
10
5
20
40
55
LEFT
10
15
35
75
85

The average puretone threshold for the right ear was 30 decibels.  The average puretone threshold for the left ear was 52.5 decibels.  Speech audiometry revealed speech recognition ability of 80 percent in the right ear and of 64 in the left ear.  The Veteran complained of having to ask people to repeat themselves, not being able to respond properly, and misunderstanding what people say.

Table VI indicates a numeric designation of no worse than level III hearing in the right ear and level VI for the left ear.  The point of intersection on Table VII reflects that the level of hearing loss is consistent with a 10 percent evaluation.  

According to a March 2013 VA examination, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
10
10
30
30
45
LEFT
0
20
40
80
80

The average puretone threshold for the right ear was 28.75 decibels.  The average puretone threshold for the left ear was 55 decibels.  Speech audiometry revealed speech recognition ability of 92 percent in the right ear and of 90 in the left ear.  

Table VI indicates a numeric designation of no worse than level I hearing in the right ear and level II hearing in the left ear.  The point of intersection on Table VII reflects that the level of hearing loss is consistent with a noncompensable (zero) percent evaluation.  

At the December 2016 Board hearing, the Veteran asserted that his hearing loss had worsened since the September 2012 VA examination.  The Veteran was subsequently afforded another VA examination in March 2017.

On the authorized audiological evaluation in March 2017, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
20
25
40
45
40
LEFT
15
30
50
40
80

The average puretone threshold for the right ear was 37.5 decibels.  The average puretone threshold for the left ear was 50 decibels.  Speech audiometry revealed speech recognition ability of 98 percent in the right ear and 96 percent in left ear.  The Veteran complained that he misses a lot of what is being said if he's not looking at people and that it's even worse if noise is around.

Based on results from the March 2017 examination report, Table VI indicates a numeric designation of level I hearing in both ears.  The point of intersection on Table VII reflects that the level of hearing loss is consistent with a noncompensable (zero) percent evaluation.  Thus the Veteran does not meet the criteria for rating in excess of 10 percent for his hearing impairment at any time.  

The Board notes that Table VIA does not provide entitlement to a higher rating based on either of the above audiological examinations because the puretone thresholds were not 55 decibels at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz), nor was the puretone threshold at 30 decibels or lower at 1000 Hz and 70 decibels or more at 2000 Hz for either ear on either of the examinations. 38 C.F.R. § 4.86.  

The Board also notes that the June 2012 private audiological examination testing results do not reflect an exceptional pattern of hearing impairment in either ear such that 38 C.F.R. § 4.85, Table VIA, may be used for numeric designation of hearing impairment based only on puretone threshold average.  See 38 C.F.R. § 4.86.

Thus, for the June 2012 results, combining the numerical designations under Table VII results in a noncompensable (zero) percent disability rating.  38 C.F.R. § 4.85, Diagnostic Code 6100.

As noted above, a 10 percent evaluation is assigned for the Veteran's bilateral hearing loss.  As described, the September 2012, March 2013, and March 2017 audiological results do not show that a rating in excess of 10 percent is warranted for the Veteran's bilateral hearing loss.  The September 2012, March 2013 and March 2017 VA examination reports represent the best evidence for deciding the claim for this rating period as they are the pieces of evidence that contain comprehensive audiometric testing sufficient for rating the disability.

The Board has carefully considered the lay testimony on record.  To the extent that this testimony suggests that his acuity is worse than evaluated, the Board finds the statements both competent and credible in regard to reporting worsening hearing acuity.  However, far more probative of the degree of the disability are the results of testing prepared by skilled professionals since the schedular criteria are predicated on audiological findings rather than subjective reports of severity of hearing loss.  The Veteran is competent to report difficulty with his hearing; however, he is not competent to assign puretone decibel readings to his current acuity problems.  As indicated above, ratings of hearing loss disability involve mechanical application of the rating criteria to the findings on official audiometry.  See Lendenmann, supra. 

Accordingly, the claim for an evaluation in excess of 10 percent for bilateral hearing loss disability is denied.  The Veteran has not contested the applicability of the relevant diagnostic criteria in this case, nor has he asserted any symptoms concerning functional effects not consistent with or contemplated by the applicable criteria and the currently assigned evaluation.  See Doucette v. Shulkin, 28 Vet. App. 366 (2017); but see Martinak v. Nicholson, 21 Vet. App. 447 (2007). 

The evidence is not in equipoise, and the benefit-of-the-doubt doctrine does not apply.  38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Because the disability has not met the criteria for a higher evaluation at any time during the appeal period, there is no basis for a staged rating.  See Hart, supra.


ORDER

Entitlement to an initial rating in excess of 10 percent for service-connected bilateral hearing loss is denied.



____________________________________________
K. PARAKKAL
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs