Citation Nr: 1804397 Decision Date: 01/23/18 Archive Date: 01/31/18 DOCKET NO. 14-07 206 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to an initial compensable rating for bilateral hearing loss from July 9, 2008 and in excess of 10 percent from June 1, 2010. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD S. Owen, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1968 to May 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas, which, in part, granted service connection for bilateral hearing loss, and assigned a noncompensable evaluation. The Veteran filed a timely notice of disagreement (NOD) in June 2010. In August 2010, the RO granted the Veteran an increased 10 percent evaluation for bilateral hearing loss, effective June 1, 2010. As the August 2010 rating decision did not grant the maximum benefit sought on appeal, the Board will consider whether increased ratings are warranted. In October 2016, the Veteran testified at a Travel Board hearing before the undersigned Veteran's Law Judge at the RO in San Antonio, Texas. A transcript of the hearing is associated with the claims file. After the hearing, the Veteran submitted additional evidence and waived initial RO consideration. In August 2017, the Board remanded the case for further development of the record, including obtaining outstanding records. There has been substantial compliance with the requested development. Stegall v. West, 11 Vet. App. 268 (1998); see Dyment v. West, 13 Vet. App. 141 (1999). This appeal was processed using the Virtual VA and Veterans Benefits Management System (VBMS) paperless claims processing system. Accordingly, any future consideration of this case should take into consideration the existence of this electronic record. 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). FINDINGS OF FACT 1. Prior to June 1, 2010, the Veteran's bilateral hearing loss has been manifested by no worse than Level III hearing loss in his right ear and Level I hearing loss in his left ear. 2. From June 1, 2010, the Veteran's bilateral hearing loss has been manifested by, at most, Level VI hearing loss in his right ear and Level III hearing loss in his left ear. CONCLUSIONS OF LAW The criteria for an initial compensable rating for bilateral hearing loss from July 9, 2008 and in excess of 10 percent from June 1, 2010, have not been met. 38 U.S.C. §§ 1101, 1110, 1155, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.10, 4.85, Diagnostic Code (DC) 6100 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5103, 5013A, 5106, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). 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. § 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 in the development of the claim at issue by notice letters dated in June 2010 and June 2011. See 38 U.S.C. §§ 5102, 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). The VCAA also provides that VA has a duty to assist claimants in obtaining evidence needed to substantiate a claim. 38 U.S.C. § 5103A; 38 C.F.R § 3.159(c). Here, the Veteran's service records, VA records, private treatment records identified by the Veteran, and Social Security Administration records have been obtained and associated with the claims file. The Veteran was afforded VA examinations in October 2008, June 2010, July 2011, and January 2014. The examinations are of record. To that end, 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 examinations reports reflect that relevant records were reviewed and the examiner personally interviewed and examined the Veteran, including eliciting a history from him, and offered opinions. The Veteran has been afforded a meaningful opportunity to participate effectively in the processing of the claim, including by submission of statements and arguments. Based upon the foregoing, the duties to notify and assist the Veteran have been met, and no further action is necessary to assist the Veteran in substantiating this claim. Increased Rating Law and Regulations Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2017). Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3 (2017). Where entitlement to compensation has already been established and an increase in disability rating is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Within that context, VA must assess the level of disability from the date of initial application for service connection and determine whether the level of disability warrants the assignment of different disability ratings at different times over the life of the claim, a practice known as a "staged rating." See Fenderson v. West, 12 Vet. App 119 (1999). Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Generally, the Board has been directed to consider only those factors contained wholly in the rating criteria. See Massey v. Brown, 7 Vet. App. 204, 208 (1994); but see Mauerhan v. Principi, 16 Vet. App. 436 (2002) (finding it appropriate to consider factors outside the specific rating criteria in determining level of occupational and social impairment). The standard of proof to be applied in decisions on claims for veteran's benefits is set forth in 38 U.S.C. § 5107 (2012). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102 (2017). When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). Analysis The Veteran's bilateral hearing loss disability is rated as noncompensable from July 9, 2008 and at 10 percent from June 1, 2010, under 38 C.F.R. § 4.85, Diagnostic Code (DC) 6100 (2017). Under DC 6100, a disability for hearing loss is determined by a mechanical application of the Rating Schedule to the numeric designations assigned based upon audiometric test results. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). The Rating Schedule provides a table for ratings purposes (Table VI) to determine a Roman numeral designation (I through XI) for hearing impairment. Table VII is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment in both ears. See 38 C.F.R. § 4.85. The Rating Schedule also recognizes exceptional patterns of hearing impairment. See 38 C.F.R. § 4.86 (2017). When the puretone threshold at each of the four specified frequencies (1,000; 2,000; 3,000; and 4,000 Hertz) is 55 decibels or more, Table VI or Table VIa is to be used, whichever results in the higher numeral. 38 C.F.R. § 4.86(a). Additionally, when the puretone threshold is 30 decibels or less at 1,000 Hertz, and 70 decibels or more at 2,000 Hertz, Table VI or Table VIa is to be used, whichever results in the higher numeral. 38 C.F.R. § 4.86(b). Thereafter, that numeral will be elevated to the next higher numeral. Id. In cases where the evaluation of hearing loss is at issue, an examination for VA purposes must be conducted by a state-licensed audiologist and must include a controlled Maryland CNC speech discrimination test and a puretone audiometry test. Examinations will be conducted without the use of hearing aids. 38 C.F.R. § 4.85(a). As discussed below, the Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against the Veteran's claim of entitlement for an initial compensable rating for bilateral hearing loss from July 9, 2008 and in excess of 10 percent from June 1, 2010. On the authorized audiological evaluation in October 2008, puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 30 55 70 85 LEFT 20 20 20 55 65 Speech audiometry revealed speech recognition ability of 88 percent in the right ear and of 100 in the left ear. The average puretone thresholds were 60 decibels in the right ear and 40 decibels in the left ear. The examiner found mild to profound sensorineural hearing loss in the right ear, with moderate to severe high frequency sensorineural hearing loss in the left ear. The examiner opined that if treated, the Veteran's hearing loss would not cause a change in his hearing threshold level. In January 2010, the Veteran received a private audiological evaluation from Audicles Hearing Services. Puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 25 55 70 90 LEFT 15 10 20 55 60 While the audiogram was represented in graphical form, the Board may interpret a graphical audiogram. See Kelly v. Brown, 7 Vet. App. 471 (1995). The puretone threshold average, after rounding to the nearest whole number, was 60 decibels in the right ear and 36 decibels in the left ear. Speech discrimination testing using the MCL test revealed a speech recognition ability of 80 percent in the right ear and 100 percent in the left ear. March 2010 records reflect that although the Veteran reported hearing problems, he was still able to watch television and visit with family, and it was noted that he followed spoken instructions well. It was further noted that his hearing aids restored his hearing and he was able to respond appropriately and hear normal conversation. See March 2010 and May 2011 Social Security Administration records. On the authorized audiological evaluation in June 2010, puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 30 55 70 85 LEFT 20 20 25 55 60 Speech audiometry revealed speech recognition ability of 64 percent in the right ear and of 76 in the left ear. The average puretone thresholds were 60 decibels in the right ear and 40 decibels in the left ear. The examiner diagnosed the Veteran with bilateral high frequency sensorineural hearing loss and noted that the Veteran's hearing loss and tinnitus would make it difficult for him to understand directions and conversation in a work environment and his communication would be adversely affected in his daily activities due to his inability to discriminate speech, especially in noise. In June 2011, the Veteran received a private audiological evaluation from Audicles Hearing Services. Puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 30 40 65 80 95 LEFT 20 20 30 55 60 The Board again interpreted a graphical audiogram. The puretone threshold average, after rounding to the nearest whole number, was 60 decibels in the right ear and 36 decibels in the left ear. Speech discrimination testing using the MCL test revealed a speech recognition ability of 96 percent in the right ear and 100 percent in the left ear. The audiologist referred the Veteran back to ENT due to a change in his hearing from January 2010. On the authorized audiological evaluation in July 2011, puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 30 60 75 85 LEFT 15 25 30 55 65 Speech audiometry revealed speech recognition ability of 92 percent in the right ear and of 92 in the left ear. The average puretone thresholds were 63 decibels in the right ear and 44 decibels in the left ear. In August 2011, the Veteran received a private audiological evaluation from Audicles Hearing Services. Puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 35 40 65 70 95 LEFT 20 25 30 55 60 The Board again interpreted a graphical audiogram. The puretone threshold average, after rounding to the nearest whole number, was 68 decibels in the right ear and 43 decibels in the left ear. Speech discrimination testing, which was noted to be performed using the Maryland CNC word test, revealed a speech recognition ability of 84 percent in the right ear and 96 percent in the left ear. The audiologist found that the June 2011 evaluation indicated a significant change in the Veteran's hearing sensitivity, particularly for the right ear, and diagnosed the Veteran with asymmetrical bilateral sensorineural hearing loss. On a February 2013 VA audiological evaluation, puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 35 35 65 80 80 LEFT 15 20 30 65 60 Speech audiometry using the CIDW-22 test revealed speech recognition ability of 88 percent in the right ear and of 96 in the left ear. The average puretone thresholds were 65 decibels in the right ear and 44 decibels in the left ear. On the authorized audiological evaluation in January 2014, puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 40 35 65 80 95 LEFT 25 35 40 60 60 Speech audiometry revealed speech recognition ability of 88 percent in the right ear and of 94 in the left ear. The average puretone thresholds were 69 decibels in the right ear and 49 decibels in the left ear. The examiner diagnosed bilateral sensorineural hearing loss and found that the Veteran's hearing loss would not impact his ability to perform physical work activities but may cause some difficulty for sedentary job activities without the use of a hearing aid. On a March 2016 VA audiological evaluation, puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 35 40 65 80 85 LEFT 30 30 50 65 70 Speech audiometry testing for speech recognition ability was not performed. The average puretone thresholds were 68 decibels in the right ear and 54 decibels in the left ear. The Veteran testified at his October 2016 Travel Board hearing that his hearing loss caused him to hear and pronounce words incorrectly. He stated that his main problem was communication and that he had to ask a person to repeat what was said. He stated that his doctors had prescribed hearing aids, and that they helped. In order to determine the appropriate disability rating for the Veteran's service-connected bilateral hearing loss based upon the documented objective audiological results during the appeal period as discussed above, the Board first looks to Table VI of DC 6100 as directed by 38 C.F.R. § 4.85(b). The October 2008 VA examination documents that the Veteran's puretone threshold average on the right side was 60 decibels, with 88 percent speech discrimination; therefore, Table VI assigns the Roman numeral III to the right ear. The Veteran's left ear puretone threshold average was 40 decibels, with speech discrimination of 100 percent; therefore, Table VI indicates the assignment of Roman numeral I for the left ear. Next, DC 6100 directs that the Roman numerals derived from Table VI be applied to Table VII. Specifically, the horizontal rows of Table VII represent the ear having the 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 column intersect. 38 C.F.R. § 4.85(e). Where the column for Roman numeral III and the row for Roman numeral I intersect, Table VII reveals that a noncompensable disability rating of 0 percent is warranted. The June 2010 VA examination documents that the Veteran's puretone threshold average on the right side was 60 decibels, with 64 percent speech discrimination; therefore, Table VI assigns the Roman numeral VI to the right ear. The Veteran's left ear puretone threshold average was 40 decibels, with speech discrimination of 76 percent; therefore, Table VI indicates the assignment of Roman numeral III for the left ear. Where the column for Roman numeral VI and the row for Roman numeral III intersect, Table VII reveals that a 10 percent disability rating is warranted. The July 2011 VA examination documents that the Veteran's puretone threshold average on the right side was 63 decibels, with 92 percent speech discrimination; therefore, Table VI assigns the Roman numeral II to the right ear. The Veteran's left ear puretone threshold average was 44 decibels, with speech discrimination of 92 percent; therefore, Table VI indicates the assignment of Roman numeral I for the left ear. Where the column for Roman numeral II and the row for Roman numeral I intersect, Table VII reveals that a 0 percent disability rating is warranted. An August 2011 private audiogram using the Maryland CNC documents that the Veteran's puretone threshold average on the right side was 68 decibels, with 84 percent speech discrimination; therefore, Table VI assigns the Roman numeral III to the right ear. The Veteran's left ear puretone threshold average was 43 decibels, with speech discrimination of 96 percent; therefore, Table VI indicates the assignment of Roman numeral I for the left ear. Where the column for Roman numeral III and the row for Roman numeral I intersect, Table VII reveals that a 0 percent disability rating is warranted. The January 2014 VA examination documents that the Veteran's puretone threshold average on the right side was 69 decibels, with 88 percent speech discrimination; therefore, Table VI assigns the Roman numeral III to the right ear. The Veteran's left ear puretone threshold average was 49 decibels, with speech discrimination of 94 percent; therefore, Table VI indicates the assignment of Roman numeral I for the left ear. Where the column for Roman numeral III and the row for Roman numeral I intersect, Table VII reveals that a 0 percent disability rating is warranted. Additionally, the October 2008, June 2010, July 2011, and January 2014 VA audiometric test results, and the August 2011 private audiogram, do not meet the definition of an exceptional pattern of hearing impairment, so consideration of 38 C.F.R. § 4.86(a) is not warranted. To the extent that the record documents that the Veteran underwent additional audiometric testing in January 2010, June 2011, February 2013, and March 2016, such records have been considered by the Board; however, they are less probative regarding the objective level of severity of the Veteran's service-connected bilateral hearing loss, as the treatment records do not document use of the Maryland CNC speech discrimination test per VA regulations or that use of speech discrimination testing was inappropriate. See 38 C.F.R. § 3.85(a) and (c). Based on the foregoing, the Board concludes that an initial compensable rating for bilateral hearing loss is not warranted. Prior to June 2010, the Veteran's bilateral hearing loss was manifested by no worse than Level III hearing loss in his right ear and Level I hearing loss in his left ear. Therefore, a compensable rating is not warranted. From June 2010, the Veteran's bilateral hearing loss has been manifested by, at worst, Level VI hearing loss in his right ear and Level III hearing loss in his left ear. Therefore, a 10 percent rating, but no higher, is warranted. In making these determinations, the Board has also considered the Veteran's lay statements and testimony regarding the severity of his service-connected bilateral hearing loss. The Veteran is competent to report his hearing loss symptoms, as these observations come to him through his senses. Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Board also acknowledges the Veteran's belief that his symptoms are of such severity as to warrant an increased rating. However, disability ratings are made by the application of a schedule of ratings which is based on average impairment of earning capacity as determined by the objective clinical evidence of record. Therefore, the Board finds that the objective medical findings, which directly address the criteria under which the disability is evaluated, are more probative than the Veteran's assessment of the severity of his disability. As the preponderance of the evidence is against the claim for a compensable rating from July 9, 2008 and in excess of 10 percent from June 1, 2010, there is no reasonable doubt to be resolved, and the claim is denied. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. §§ 3.102, 4.3 (2017); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Neither the Veteran nor his representative have raised any other issues regarding the Veteran's hearing loss, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). ORDER Entitlement to an initial compensable rating for bilateral hearing loss from July 9, 2008 and in excess of 10 percent from June 1, 2010, is denied. ____________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs