Citation Nr: 1804847	
Decision Date: 01/25/18    Archive Date: 02/05/18

DOCKET NO.  14-14 825	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina


THE ISSUE

Entitlement to an initial compensable rating for bilateral hearing loss. 


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

S. A. Prinsen, Associate Counsel


INTRODUCTION

The Veteran served on active duty in the United States Army from May 1967 to May 1970.

This matter is before the Board of Veterans' Appeal (Board) on appeal of a February 2013 rating decision of the Winston-Salem, North Carolina, Regional Office (RO) of the Department of Veterans Affairs (VA).  


FINDING OF FACT

The Veteran's bilateral hearing loss has remained at level I hearing acuity in both ears, throughout the appeal period.    


CONCLUSION OF LAW

The criteria for a compensable disability rating for service connected hearing loss have not been met.  38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.85, Tables VI, VIa, VII; 4.86, Diagnostic Code (DC) 6100 (2017).  


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Duties to Notify and Assist

VA has a duty to provide notice of the information and evidence necessary to substantiate a claim.  38 U.S.C. § 5103(a); 38 C.F.R. § 3.159(b).

A standard March 2010 letter satisfied the duty to notify provisions.

The Veteran was provided a VA medical examination in January 2013.  The examination, along with the expert medical opinion, is sufficient evidence for deciding the claim. The report is adequate as it is based upon consideration of the Veteran's prior medical history and examinations, describes the disability in sufficient detail so that the Board's evaluation is a fully informed one, and contains a reasoned explanation.    

The Board considered the issue of staleness.  Review of the record did not reveal evidence of an increase or worsening of the Veteran's bilateral hearing loss since the time of the last VA examination for compensation and pension purposes which was conducted in February 2013.  Therefore, the Board finds that a new VA examination is not warranted.  See Palczewski v. Nicholson, 21 Vet. App. 174, 180 (2007) (finding that the mere passage of time, without more, does not render a medical examination upon which service connected was based on for hearing loss inadequate).  Thus, VA's duty to assist has been met.

II.  Compensable Rating

Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4.  The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations.  38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1.

The Veteran's entire history is reviewed when making disability evaluations.  See generally 38 C.F.R. § 4.1 (2017); Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  Where, as here, the question for consideration is the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection and consideration of the appropriateness of a staged rating are required.  See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999).  VA adjudicators must consider whether to "stage" the ratings, meaning assign different ratings at different times during the rating period to compensate him for times when the disability may have been more severe than at others.  The Court has held that consideration of the appropriateness of a staged rating is required for increased rating claim.  Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007).

If the evidence for and against a claim is in equipoise, the claim will be granted.  38 C.F.R. § 4.3.  A claim will be denied only if the preponderance of the evidence is against the claim.  See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990).  Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant.  38 C.F.R. § 4.3.  Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.

The assignment of disability ratings for hearing impairment is 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).  An examination for hearing impairment 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. 
38 C.F.R. § 4.85. 

The rating schedule establishes 11 auditory hearing acuity levels based upon average puretone thresholds and speech discrimination.  See 38 C.F.R. § 4.85.  "Puretone threshold average" as used in Tables VI and VIa is the sum of the puretone thresholds at 1000, 2000, 3000 and 4000 Hertz and divided by four.  This average is used in all cases (including those of § 4.86) to determine a Roman numeral designation from Tables VI and VIa. 38 C.F.R. § 4.85(d).

Table VI, "Numeric Designation of Hearing Impairment Based on Puretone Threshold Average and Speech Discrimination," is used to determine a Roman numeral designation (I through XI) for hearing impairment based on a combination of the percent of speech discrimination (horizontal rows) and the puretone threshold average (vertical columns).  The Roman numeral designation is located at the point where the row and column intersect. 38 C.F.R. § 4.85(b).

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

Table VII, "Percentage Evaluations of Hearing Impairment," is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment in each ear.  The horizontal rows represent the ear having 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 the column intersect. 38 C.F.R. § 4.85(e).

Special provisions apply in instances of exceptional hearing loss.  See 38 C.F.R. § 4.86.  When the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) are all 55 decibels or more, the adjudicator must determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa in 38 C.F.R. § 4.85, whichever results in the higher numeral. 38 C.F.R. § 4.86(a). 

When the puretone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, 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.  That numeral will then be elevated to the next higher Roman numeral.  Each ear is evaluated separately. 38 C.F.R. § 4.86(b).

The Court has held that, "in addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in his or her final report."  Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007).

The Board has considered the application of the exceptional patterns of hearing loss and finds the Veteran's test results do not meet the criteria of 38 C.F.R. § 4.86(a).  The Board has also considered various other provisions, including 38 C.F.R. § 3.321 (b)(1), for exceptional cases where schedular evaluations are found to be inadequate.  Schafrath v. Derwinski, 1 Vet. App. 589 (1991); Thun v. Shinseki, 573 1366 (Fed. Cir. 2009).  

In February 2013, the RO granted service connection for bilateral hearing loss and assigned a noncompensable initial rating.  The Veteran contends that his service connected bilateral hearing loss deserves a compensable rating.  For the following reasons, the Board finds that a compensable rating is not warranted. 

In January 2013, the Veteran underwent a VA audiological examination.  His puretone thresholds, in decibels, were as follows:


HERTZ

500
1000
2000
3000
4000
RIGHT
40
40
35
50
70
LEFT
30
40
35
35
50

The average puretone threshold for the right ear was 49 and the speech recognition (Maryland CNC) score was 96 percent.  The average puretone threshold for the left ear was 40 and the Maryland CNC score was 100 percent.  The VA examiner reported that the Veteran's hearing loss does not impact ordinary conditions of daily life or his ability to work. 

Under Table VI of 38 C.F.R. § 4.85, the findings from the January 2013 VA examination are equivalent to level I for the right ear and level I for the left ear.  Applying the level I hearing findings to Table VII, results in a noncompensable rating.  See 38 C.F.R. § 4.85(f).  

The Board acknowledges the Veteran's reported symptoms of difficulty hearing, especially in a group or office setting and his contention that the hearing tests are unfair.  While the Boards does not doubt the sincerity of the Veteran's assertions regarding the severity of his hearing loss, or its functional impact, the Board must apply the regulation as it is currently written, which requires objective audiometric testing at certain levels to qualify for higher compensation.  

As noted above, the Veteran's symptoms are not productive of, or consistent with, the criteria for a compensable rating.  The Board has duly considered staged ratings, pursuant to Hart, supra, but finds the 0 percent rating assigned is appropriate for the entire rating period.  

The preponderance of the evidence is against the Veteran's claim, there is no doubt to be resolved, and therefore, the claim must be denied.  Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).


ORDER

A compensable rating for bilateral hearing loss is denied.



____________________________________________
G. A. WASIK  
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs