Citation Nr: 1804894	
Decision Date: 01/25/18    Archive Date: 02/05/18

DOCKET NO.  11-12 243	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Columbia, South Carolina


THE ISSUE

Entitlement to an initial compensable rating for bilateral hearing loss.


REPRESENTATION

Appellant represented by:	Calvin K. Hastie, Sr., Attorney


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

J. Coogan, Associate Counsel


INTRODUCTION

The Veteran had active service in the U.S. Army from April 1973 to December 1979.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. 

In April 2012, the appellant testified before a Veterans Law Judge (VLJ) in Columbia, South Carolina.  A transcript of this hearing is of record.  In March 2017, the Board notified the Veteran that the VLJ who had conducted the April 2012 hearing was no longer employed at the Board, and gave the Veteran the opportunity to request a new hearing.  In May 2017, the Veteran requested a new hearing, but then in August 2017 withdrew his request.

In November 2013, the Board remanded the Veteran's bilateral hearing loss claim for additional development. 


FINDING OF FACT

The Veteran's bilateral hearing loss has been manifested by no worse than Level III hearing impairment for the right ear and no worse than Level II hearing impairment for the left ear.


CONCLUSION OF LAW

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. §§ 3.102, 3.159, 4.85, 4.86, Diagnostic Code 6100 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

Duty to Notify and Assist

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).

Increased Ratings

The Veteran is seeking an initial compensable rating for his service connected bilateral hearing loss disability. 

Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity.  See 38 U.S.C. § 1155.  Percentage evaluations are determined by comparing the manifestations of a particular disorder with the requirements contained in the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4.  The percentage ratings contained in the Rating Schedule represent, as far as can practically be determined, the average impairment in earning capacity resulting from such diseases or injuries and their residual conditions in civilian occupations.  38 U.S.C. § 1155; 38 C.F.R. § 4.1. 

The Veteran's entire history is to be considered when assigning disability ratings.  38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where, as here, the question for consideration is the propriety of the initial rating assigned, evaluation of the medical evidence since the effective date of the grant of service connection and consideration of the appropriateness of the assignment of different ratings for distinct periods of time, based on the facts found, is required.  Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).  The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods.

Under 38 C.F.R. § 4.85, the assignment of disability ratings for service-connected hearing impairment is derived by a mechanical application of the Rating Schedule to the numeric designations assigned after audiometric evaluations are rendered.  Doucette v. Shulkin, 28 Vet. App. 366, 368 (2017); Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992).  Evaluations for defective hearing range from noncompensable to 100 percent, based on organic impairment of hearing acuity.

The Rating Schedule provides a table for rating purposes to determine a Roman numeral designation (I through XI) for hearing impairment, established by a State-licensed audiologist including a controlled speech discrimination test (Maryland CNC), and based upon a combination of the percent of speech discrimination and the puretone threshold average, which is the sum of the puretone thresholds at 1000, 2000, 3000, and 4000 Hertz (divided by four).  See 38 C.F.R. Part 4; 38 C.F.R. § 4.85, Table VI.  Table VII is then used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment of each ear.  See 38 C.F.R. § 4.85(e).  The horizontal row represents the ear having the poorer hearing, and the vertical column represents the ear having the better hearing.  See id.  

In addition, regulations codified at 38 C.F.R. § 4.86, "Exceptional Patterns of Hearing Impairment," set forth two provisions for evaluating Veterans with certain patterns of hearing impairment that cannot always be accurately assessed under section 4.85, due to the fact that the speech discrimination test may not reflect the severity of impairment of communicative functioning that these Veterans experience.  Under 38 C.F.R. § 4.86(a), when the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more, VA will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral.  38 C.F.R. § 4.86(a).  Also, under 38 C.F.R. § 4.86(b), when the puretone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz, VA 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.  38 C.F.R. § 4.86(b).  Each ear will be evaluated separately.  38 C.F.R. § 4.86(a), (b).  In this case, however, as will be discussed, neither of these exceptions is applicable.

The available claim file contains no private or VA treatment records of audiological examinations during the appellate period.  The VA treatment records do show that the Veteran was repeatedly treated for impacted ear wax, including in 2010 and 2011, which he sometimes said caused hearing loss or ear pain.  See, e.g., September 27, 2011 VA treatment record.  There are no private or VA treatment records that indicate the Veteran suffered from any unusual symptoms from his sensorineural hearing loss, such as dizziness, vertigo, or drainage.  See Doucette v. Shulkin, 28 Vet. App. 366 (the schedular rating criteria contemplate the ordinary functional effects of decreased hearing).

The Veteran was afforded two sets of VA audiological examinations during the appellate period, in August 2010 and December 2013.  The Veteran's August 2010 VA examination was split into two parts, with the audiological examination results in an August 10, 2010 report and the examiner's service connection opinion in a separate August 26, 2010 report.  The August 2010 VA examination showed that puretone thresholds, in decibels, were as follows:




HERTZ



1000
2000
3000
4000
AVG
RIGHT
15
65
65
60
51
LEFT
10
55
60
50
44

His speech discrimination score was 84 percent in the right ear and 94 percent in the left.  Under the applicable schedular criteria, the findings above represent Level II hearing impairment in the right ear, and Level I in the left, under Table VI.  Using the Veteran's left ear as the better ear for Table VII in 38 C.F.R. § 4.85, a 0 percent evaluation is derived.

Thus, the Veteran's August 2010 audiological examination shows that the Veteran's bilateral hearing loss at that time was noncompensable, according to the Rating Schedule.
In an April 2012 hearing, the Veteran discussed his hearing loss, testified it had gotten worse since it was first diagnosed, and requested a new VA examination.  (As noted above, he subsequently had a new VA examination, in December 2013.)  The Veteran described the effects of his hearing loss in work and personal situations, including saying that he couldn't hear people on the telephone and they had to yell, he couldn't hear speech well unless he was close to a person, and he had to turn up the television to be very loud.  The Veteran testified that he was working full time as a security guard.  He stated that he went to the VA for treatment "constantly," not for his hearing, but because his ears kept getting waxed up and he had to have them cleaned out.  

In December 2013, the Veteran was afforded another VA audiological examination.  His puretone thresholds, in decibels, were as follows:




HERTZ



1000
2000
3000
4000
AVG
RIGHT
10
60
65
60
49
LEFT
10
60
60
50
45

Speech discrimination scores were not reported in this VA examination because, according to the VA examiner, they were not considered reliable in this case.  Applying these puretone threshold averages to Table VIA yields a designation of Level III hearing impairment in the right ear, and Level II in the left ear.  Using the Veteran's left ear as the better ear for Table VII in 38 C.F.R. § 4.85, a 0 percent evaluation is derived.

The December 2013 VA examiner found that the Veteran's hearing loss had an impact on the ordinary conditions of daily life, including the ability to work, noting that the Veteran said he had problems hearing speech.  See Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). 

Thus, the Veteran's December 2013 VA audiological examination shows that the Veteran's bilateral hearing loss at that time was noncompensable according to the Rating Schedule.


In sum, as shown in the results of the above audiological examinations, the mechanical application of the rating criteria demonstrates that the Veteran's hearing loss was properly awarded a noncompensable rating for the entire appellate period, and no increase in this 0 percent rating is warranted at this time.   

In addition, as shown on the audiometric tests, the puretone thresholds at each (i.e., all) of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) on each test was not 55 decibels or more, and neither of the tests showed a puretone threshold of 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz.  Therefore, Table VIIa, for use with "Exceptional Patterns of Hearing Impairment," is not applicable. 

The Veteran is competent to report symptoms such as difficulty with hearing speech. Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). To the extent that the Veteran contends that his hearing loss is more severe than currently evaluated, he is not competent to report that his hearing acuity is of sufficient severity to warrant a certain percent evaluation under VA's tables for rating hearing loss disabilities. Such an opinion requires medical expertise (training in evaluating hearing impairment) which he does not possess and falls outside the realm of common knowledge of a layperson.  Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Charles v. Principi, 16 Vet. App. 370   (2002); Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). 

While the Board is sympathetic to the Veteran's contention that he has difficulty hearing, especially in conversations, the VA rating criteria are definitive and provide for a precise result based on audiometric test results. His subjective report of difficulty hearing under situational circumstances, cannot be the basis for an evaluative rating.  The Board is bound to apply the VA rating schedule, under which the rating criteria are defined by audiometric test findings involving hearing acuity in a controlled laboratory environment, and the functional impact he describes is contemplated by the rating criteria. Doucette v. Shulkin, 28 Vet. App. 366 (2017). 

Based on the above, the criteria for an initial compensable disability rating are not met. There is no evidence of record to show that the criteria for a compensable disability rating have been met at any time during the appeal period, therefore the Board may not stage his rating. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. 38 U.S.C.A. § 5107  (b); 38 C.F.R. § 3.102  (2017). Therefore, entitlement to an initial compensable rating for bilateral hearing loss is denied. 


ORDER

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



____________________________________________
Lesley A. Rein
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs