Citation Nr: 1804582	
Decision Date: 01/24/18    Archive Date: 02/05/18

DOCKET NO.  17-36 545	)	DATE
	)
	)

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


THE ISSUES

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

2.  Entitlement to a compensable rating for bilateral hearing loss from April 29, 2015.  


REPRESENTATION

Appellant represented by:	Texas Veterans Commission


ATTORNEY FOR THE BOARD

K. Kleponis, Associate Counsel

INTRODUCTION

The appellant served on active duty with the United States Air Force from August 1957 to April 1961.  

This case comes before the Board of Veteran's Appeals (Board) on appeal from a December 2014 rating decision issued by the Department of Veterans' Affairs (VA) Regional Office (RO) in Waco, Texas.  

The Board notes that the appellant's VA Form 9, filed July 10, 2017, contains notice of disagreement with an April 1, 2016 rating decision denying service connection for hair loss and bone density loss as due to claimed radiation exposure, with notice mailed April 12, 2016.  The U.S. Court of Appeals for Veterans Claims has made clear that, unlike a substantive appeal, a notice of disagreement is jurisdictional.  Percy v. Shinseki, 23 Vet. App. 37, 44 (2009) (noting that "[t]he permissive language of section 7105(d)(3) stands in stark contrast to the statutory language mandating that claimants file a timely NOD: 'notice of disagreement shall be filed within one year from the date of mailing of notice of the result of initial review or determination,' and '[i]f no notice of disagreement is filed . . . within the prescribed period, the action or determination shall become final'").  Thus, absent a timely notice of disagreement on the issues of service connection for hair loss and bone density loss as due to radiation exposure, those issues are not before the Board.

The issue of service connection for tinnitus has been raised by the record at the appellant's October 2013 VA examination, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action.  38 C.F.R. § 19.9(b) (2017).  

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) (2017).

The issue of an increased rating from April 29, 2015 addressed in the REMAND portion of the decision below and is REMANDED to the AOJ.


FINDING OF FACT

For the period prior to April 29, 2015, the appellant has been shown to have no worse than Level II hearing loss in the left ear and Level I hearing loss in the right ear.  


CONCLUSION OF LAW

For the period prior to April 29, 2015, the criteria for an initial compensable rating for bilateral hearing loss have not been met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 4.85, 4.86, Diagnostic Code 6100 (2017).



REASONS AND BASES FOR FINDINGS AND CONCLUSION

Veterans Claims Assistant Act of 2000 (VCAA)

Neither the appellant nor his representative have raised any issues with the duty to notify or 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). 

Applicable Law

Disability evaluations are determined by the application of a schedule of ratings, which is based on the veteran's average impairment of earning capacity.  38 U.S.C. § 1155; 38 C.F.R. Part 4.  Separate diagnostic codes identify the various disabilities.  The basis of disability evaluations is the ability of the body to function under the ordinary conditions of daily life, including employment.  Evaluations are based upon lack of usefulness of the part or system affected, especially in self-support.  38 C.F.R. § 4.10.  

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.  38 C.F.R. § 4.7.  Any reasonable doubt regarding the degree of disability is resolved in favor of the Veteran.  38 C.F.R. § 4.3.  

In considering the severity of a disability, it is essential to trace the medical history of the Veteran.  38 C.F.R. §§ 4.1, 4.2, 4.41.  Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present.  38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991).

Where, as here, a claimant appeals the initial rating assigned following an award of service connection, evidence contemporaneous with the claim for service connection and with the rating decision granting service connection would be most probative of the degree of disability existing at the time that the initial rating was assigned and should be the evidence "used to decide whether an [initial] rating on appeal was erroneous..."  Fenderson v. West, 12 Vet. App. 119, 126 (1999).  If later evidence obtained during the appeal period indicates that the degree of disability increased or decreased following the assignment of an initial rating, "staged" ratings may be assigned for separate periods of time based on facts found.  Fenderson v. West, 12 Vet. App. 119, 126 (1999).

Impairment of auditory acuity (hearing loss) is evaluated pursuant to the provisions set forth in 38 C.F.R. § 4.85.  Under that regulation, an examination for hearing impairment must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a pure tone audiometry test.  Examinations are to be conducted without the use of hearing aids.  38 C.F.R. § 4.85(a).  

To evaluate the degree of disability from defective hearing, the Rating Schedule establishes 11 auditory acuity levels, represented by Roman numerals, from Level I, for lower levels of hearing loss, through Level XI, for profound deafness.  These are assigned based on a combination of the percent of speech discrimination and the pure tone threshold average, as contained in a series of tables within the regulations.  38 C.F.R. § 4.85(b).  The "pure tone threshold average" is the sum of the pure tone thresholds at 1000, 2000, 3000, and 4000 Hertz (Hz), divided by 4.  This average is used in all cases to determine the Roman numeral designation for hearing impairment from Table VI or VI A.  38 C.F.R. § 4.85(d).  

Table VII, "Percentage Evaluations for Hearing Impairment," is used to determine the percentage evaluation when combining the Roman numeral designations for hearing impairment of each ear.  The horizontal rows represent the ear having the better hearing and the vertical columns 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).  In cases where the impaired hearing is service-connected in only one ear, in order to determine the percentage evaluation from Table VII, the non-service-connected ear will be assigned a Roman numeral designation for hearing impairment of I, subject to the provisions of 38 C.F.R. 3.383.  38 C.F.R. § 4.85(f).  

The regulatory provisions also provide two additional circumstances under which alternative tables can be employed.  One is where the pure tone thresholds of the frequencies of 1000, 2000, 3000, and 4000 Hz are 55 decibels or greater.  The second is where the pure tone thresholds are 30 decibels or less at frequencies of 1000 Hz and below, and are 70 decibels or more at 2000 Hz.  38 C.F.R. § 4.86.  

Benefit of the Doubt Rule

The standard of proof to be applied in a decision on claims for VA benefits is set forth in 38 U.S.C. § 5107(b).  Under that provision, VA 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. §5107(b); see also 38 C.F.R. §§ 3.102; 4.3.  "This unique standard of proof is in keeping with the high esteem in which our nation holds those who have served in the Armed Services.  It is in recognition of our debt to our veterans that society has through legislation taken upon itself the risk of error when, in determining whether a veteran is entitled to benefits, there is an 'approximate balance of positive and negative evidence.'  By tradition and by statute, the benefit of the doubt belongs to the veteran."  Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990).

Analysis

The appellant contends that his bilateral hearing loss is worse than it was initially rated.  He is currently assigned a non-compensable rating for his disability.

The appellant was afforded a VA examination for his hearing loss claims in October 2013.  Pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
20
25
20
45
55
LEFT
40
45
45
70
70

Speech audiometry revealed speech recognition ability of 100 percent in the right ear and of 96 percent in the left ear.    

Since this examination, the appellant underwent two other tests of his hearing acuity, in July 2014 and February 2015.  While the pure tone thresholds at these examinations were not recorded in the appellant's VA treatment records, the examiner compared the results to the results of the appellant's October 2013 examination and found no significant change in the appellant's hearing acuity.  

Applying the facts in this case to the applicable legal criteria set for above, the Board finds that the preponderance of the evidence is against the assignment of an initial compensable rating for bilateral hearing loss.  

The appellant had an average puretone threshold (1000 - 4000 Hz) of 36 decibels in the right ear and 58 decibels in the left ear as of October 2013.  Speech discrimination was 100 percent in the right ear and 96 percent in the left ear.  These audiometric findings equate to Level I 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, the result is a noncompensable rating.  Subsequent audiometric testing dated in July 2014 and February 2015 demonstrated no significant changes from these results.  

The Board has also considered the provisions of 38 C.F.R. § 4.86; however, because the appellant does not have pure tone thresholds of 55 decibels or greater at 1000-4000 Hz in either ear, or 30 decibels or less at 1000 Hz and 70 decibels or more at 2000 Hz in either ear, this provision is inapplicable.  

The Board acknowledges the appellant's belief that his hearing is worse than it was initially rated and finds the statement credible.  However, the Board finds that there is not sufficient medical evidence upon which to award a higher rating for hearing loss for any period prior to April 29, 2015.  Disability ratings 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).  In this case, as explained above, the numeric designations correlate to a noncompensable disability rating.  

For these reasons, the Board finds that the preponderance of the evidence is against an initial compensable schedular rating for bilateral hearing loss. 

ORDER

Entitlement to an initial compensable rating for bilateral hearing loss is denied.  


REMAND

The appellant was first awarded service connection for hearing loss in a September 2013 Board decision and assigned a noncompensable rating in a December 2014 rating decision.  As discussed above, audiometric testing dated in October 2013, July 2014, and February 2015 did not meet the qualifications for a compensable rating.  

However, the appellant submitted a notice of disagreement in April, 2015 and a Statement in Support of his claim in January 2016 in which he claims he is almost totally deaf in his left ear.  The Board finds the appellant's April 2015 notice of disagreement asserts a worsening of his disability since the last examination and that a new examination is necessary to determine the appellant's present level of disability.  

Accordingly, the case is REMANDED for the following action:

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

1.  Arrange for the appellant to undergo an audiological evaluation at an appropriate facility.  If the Maryland CNC speech recognition test is unavailable, this should be indicated in the evaluation.  The examiner should specifically indicate the pure tone threshold averages at 1000, 2000, 3000, and 4000 Hertz.  All of these values must be addressed.  If the audiometric data is provided in a chart or graph form (rather than written out) the audiogram should then be submitted to a VA audiologist who should translate the chart or graph into specific numbers for each of the frequencies at 1000, 2000, 3000, and 4000 Hertz.

The case should then be returned to the Board for appropriate appellate consideration, if in order.

The appellant has the right to submit additional evidence and argument on the matter or matters 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).




______________________________________________
ERIC S. LEBOFF
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs