Citation Nr: 1804611	
Decision Date: 01/24/18    Archive Date: 02/05/18

DOCKET NO.  17-22 234	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Denver, Colorado


THE ISSUE

Entitlement to an increased disability rating in excess of 20 percent for bilateral hearing loss.


REPRESENTATION

Appellant represented by:	Joseph A. Whitcomb, Attorney at Law


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

M. A. Macek, Associate Counsel


INTRODUCTION

The Veteran served on active duty from November 1950 to June 1978 in the United States Air Force.

The matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2016 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado.

In November 2017, the Veteran testified before the undersigned Veterans Law Judge (VLJ) during a Board video conference hearing. A transcript of the hearing has been associated with the claims file.

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) (West 2012).


FINDING OF FACT

The Veteran's bilateral hearing loss, when using the required Maryland CNC discrimination test, manifested by no more than Level IV hearing acuity in the right ear and no more than Level VI hearing acuity in the left ear, resulting in a 20 percent disability rating. 


CONCLUSION OF LAW

The criteria for a disability rating in excess of 20 percent for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (West 2012); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.85, Diagnostic Code 6100 (2017).



REASONS AND BASES FOR FINDING AND CONCLUSION

I.	Increased Ratings

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 (West 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).

Evaluations of defective hearing range from zero to 100 percent. This is 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 pure tone audiometric tests in the frequencies of 1000, 2000, 3000, and 4000 Hertz. To evaluate the degree of disability from service-connected hearing loss, the rating schedule establishes eleven auditory acuity levels ranging from numeric level I for essentially normal acuity, through numeric level XI for profound deafness. 38 C.F.R. § 4.85, Tables VI and VII, Diagnostic Code 6100. 

Table VI in 38 C.F.R. § 4.85 is used to determine the numeric designation of hearing impairment based on the pure tone threshold average from the speech audiometry test and the results of the speech discrimination test. The vertical lines in Table VI represent nine categories of the percentage of discrimination based on the controlled speech discrimination test. The horizontal columns in Table VI represent nine categories of decibel loss based on the pure tone audiometry test. The numeric designation of impaired hearing (Levels I through XI) is determined for each ear by intersecting the vertical row corresponding to the percentage of discrimination and the horizontal column corresponding to the pure tone decibel loss.

The Board notes that under C.F.R. §4.85(a), the evaluation of hearing requires that "an examination 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.

The provisions of 38 C.F.R. § 4.86  govern exceptional patterns of hearing impairment. Exceptional patterns of hearing loss include puretone thresholds 55 dB or above for all four of the specified frequencies, or where the threshold was 30 dB or less at 1000 Hz and 70 dB or more at 2000 Hz. If such exceptional patterns are shown, then hearing loss is evaluated under either Table VI or Table VIA, whichever results in a higher Roman numeral. Table VIA is based solely on puretone threshold average. 

The percentage evaluation is derived from Table VII in 38 C.F.R. § 4.85 by intersecting the vertical column corresponding to the numeric designation for the ear having the better hearing acuity (as determined by Table VI) and the horizontal row corresponding to the numeric designation level for the ear having the poorer hearing acuity (as determined by Table VI). For example, if the better ear has a numeric designation Level of "V" and the poorer ear has a numeric designation Level of "VII," the percentage evaluation is 30 percent.

The ratings for disability compensation for hearing loss are determined by the mechanical, meaning nondiscretionary, application of the above criteria. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992).

The Veteran's service-connected bilateral hearing loss is currently rated as 20 percent disabling under C.F.R. § 4.85, DC 6100 (2017) since August 5, 2010.

The Veteran contends that his bilateral hearing loss should be rated higher due to the adverse functional impact the disability has on his activities of daily living including work and social events. See November 2017 Transcript. He testified that he has tried several hearing aids, which have had limited success in improving his hearing. He described his hearing difficulties as having trouble with voices, words, music, and hearing in crowds. He stated that his hearing aids pick up sounds from 360 degrees and so he has difficulty understanding what direction the sound is coming from and often other sounds will make it difficult for him to understand when a person is speaking to him.

VA records show the Veteran underwent audiometric testing for hearing loss in April 2016. See April 2016 Compensation and Pension Examination. Puretone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
50
55
65
70
85
LEFT
50
60
65
75
85

Speech audiometry revealed speech discrimination ability of 80 percent in the right ear and 76 percent in the left ear. Utilizing 38 C.F.R. § 4.85, Table VI, this corresponds to a hearing level of IV in the right ear and a hearing level of VI in the left ear. The examiner diagnosed the Veteran with bilateral sensorimotor hearing loss in the  (in the frequency range of 500-4000 Hz).

Review of the Veteran's private treatment records indicate that he underwent a private audiology examination in October 2017 which revealed sensorineural hearing loss. The Board notes that the examination was done using the WRS audiology test type with the use of the NU-6 List 2A word list. While these results may indicate a worsening of the Veteran's hearing, the Board is unable to utilize these results as they do not meet the requirements of C.F.R. §4.85 (2017).

Based on these results, the Board finds that the hearing loss disability does not meet requirements for a rating in excess of 20 percent. At no time during this time-period on appeal has the disability resulted in hearing impairment at greater than Level IV hearing acuity in the right ear or greater than Level VI hearing acuity in the left ear, which equate to a 20 percent disability rating using both C.F.R. §4.85 and §4.86. Therefore, the Board concludes that the Veteran's bilateral hearing loss must be maintained at 20 percent.

Regarding the Veteran's contentions that his hearing loss affects his quality of life due to work and social events, he asserts that he has difficulty discriminating voices, words, music, and speaking in crowds, the Board finds that the Veteran's hearing loss and difficulty understanding speech are adequately described by the schedular criteria. See 38 C.F.R. § 4.85, DC 6100 and 38 C.F.R. § 4.86. In this regard, the "rating criteria for hearing loss contemplate the functional effects of decreased hearing and difficulty understanding speech in an everyday work environment and social situations, as these are precisely the effects that VA's audiometric tests are designed to measure." Doucette v. Shulkin, 28 Vet. App. 336 (2017). Accordingly, the Veteran's difficulty understanding speech and sounds in various contexts that he testified to are contemplated by the schedular criteria. See Id. (holding that "when a claimant's hearing loss results in an inability to hear or understand speech or to hear other sounds in various contexts, those effects are contemplated by the schedular rating criteria").

The Board acknowledges that the Veteran underwent a private audiology examination in October 2017, which his representative contends, warrants a higher evaluation. However, as per C.F.R. §4.85, the Board is unable to utilize these results for rating purposes as the examination was not conducted under Maryland CNC standards. The Veteran is encouraged to apply for an increased disability rating for his bilateral hearing loss if his hearing worsens. Unfortunately, based on the evidence of record, a 20 percent disability rating for the Veteran's bilateral hearing loss disability must be maintained.



ORDER

Entitlement to an increased disability rating for bilateral hearing loss, in excess of 20 percent, is denied.



____________________________________________
M. TENNER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs