Citation Nr: 1805448	
Decision Date: 01/26/18    Archive Date: 02/07/18

DOCKET NO.  17-15 545	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Louisville, Kentucky

THE ISSUE

Entitlement to a rating in excess of 20 percent for bilateral hearing loss.


REPRESENTATION

Veteran represented by:	The American Legion


ATTORNEY FOR THE BOARD

A. Dean, Counsel



INTRODUCTION

The Veteran served on active duty from September 1950 to September 1953.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO).  It was last before the Board in September 2017, when it was remanded for further development.

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).


FINDING OF FACT

For the entire appellate period, the Veteran's bilateral hearing loss is not shown to have met the schedular criteria for a rating in excess of 20 percent.


CONCLUSION OF LAW

The criteria for a rating in excess of 20 percent for bilateral hearing loss have not been met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.321, 4.3, 4.7, 4.85, 4.86(a), Diagnostic Code 6100 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).

VA satisfied the duties to notify and assist in the appeal, and neither the Veteran nor his representative has asserted any error as to the duties.  See Scott v. McDonald, 789 F. 3d 1375 (Fed. Cir. 2015); Dickens v. McDonald, 814 F.3d 1359 (Fed. Cir. 2016).  The Veteran was provided VA examinations regarding his claim; as discussed in greater detail below, the Board finds the examinations to be adequate upon which to adjudicate the merits of this appeal.  Moreover, the November 2017 examination substantially complied with the remand request.  Stegall v. West, 11 Vet. App. 268 (1998).

Legal Criteria, Factual Background, and Analysis

Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity.  Individual disabilities are assigned specific diagnostic codes.  38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.1 (2016).

In evaluating the severity of a particular disability, it is essential to consider its history.  38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991).  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 (2016).

Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance.  Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  However, separate ratings may be assigned for separate periods of time based on the facts found.  This practice is known as "staged" ratings.  Hart v. Mansfield, 21 Vet. App. 505 (2007).  The relevant temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim.  Id.

Disability evaluations for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered.  Lendenmann v. Principi, 3 Vet. App. 345 (1992). 

Ratings for hearing loss are determined by considering the puretone threshold average and speech discrimination percentage scores.  38 C.F.R. § 4.85(b), Table VI.  The Ratings Schedule provides a table for ratings purposes (Table VI) 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. § 4.85.  Table VII is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment of each ear.

Where there is an exceptional pattern of hearing impairment (defined in 38 C.F.R. § 4.86) the Levels of hearing acuity may be determined based on puretone thresholds alone (under Table VIA).

The Veteran underwent a VA audiological examination in September 2016.  At that time, the Veteran reported difficulty understanding speech, especially when there was other noise.  The examination revealed audiometry results as follows:

HERTZ
1,000
2,000
3,000
4,000
RIGHT
30
40
55
60
LEFT
85
85
95
100+

Speech recognition testing using the Maryland CNC test revealed speech recognition ability of 96 percent in the right ear and 72 percent in the left ear.  Application of these findings to Table VII corresponds to a 0 percent evaluation considering the Roman Numeral designation of I in the right ear and VII in the left ear.  The Board notes; however, that the results of the examination reveal an exceptional pattern of hearing loss in the left ear only because the puretone thresholds at each of the four specified frequencies is 55 decibels or more.  As such, the finding of Level VII in the left ear is elevated to Level IX pursuant to 38 C.F.R. § 4.86(a).  Combining Level V hearing for the right ear and Level IX hearing for the left ear according to Table VII still results in a 0 percent rating.

The Veteran submitted a June 2017 private audiology letter and audiogram, which indicated audiometry results as follows:

HERTZ
1,000
2,000
3,000
4,000
RIGHT
35
45
55
65
LEFT
90
90
100
110

Speech recognition scores using the Maryland CNC test were not provided as required by the regulations; in this case, there is no ambiguity as the record indicates that no speech recognition scores were provided.  38 C.F.R. § 4.85(a); Savage v. Shinseki, 24 Vet. App. 259 (2011).  However, application of the findings to Table VIA, which provides hearing loss levels based only on puretone threshold average, corresponds to a 20 percent evaluation considering the Roman Numeral designation of III in the right ear and X in the left ear.

The Veteran underwent a new VA audiological examination in November 2017 pursuant to Board remand.  At that time, the Veteran reported that he had to ask people to repeat themselves due to his hearing difficulty.  The examination revealed audiometry results as follows:

HERTZ
1,000
2,000
3,000
4,000
RIGHT
35
40
55
70
LEFT
85
85
95
105

Speech recognition testing using the Maryland CNC test revealed speech recognition ability of 96 percent in the right ear and 72 percent in the left ear.  Application of these findings to Table VII corresponds to a 0 percent evaluation considering the Roman Numeral designation of I in the right ear and VII in the left ear.  The Board notes; however, that the results of the examination reveal an exceptional pattern of hearing loss in the left ear only because the puretone thresholds at each of the four specified frequencies is 55 decibels or more.  As such, the finding of Level VII in the left ear is elevated to Level IX pursuant to 38 C.F.R. § 4.86(a).  Combining Level V hearing for the right ear and Level IX hearing for the left ear according to Table VII still results in a 0 percent rating.

The Board notes that in a January 2018 Brief, the Veteran's representative disputed that the Veteran's left ear speech recognition could have improved between the September 2016 and November 2017 VA examinations, citing speech recognition of 76 percent in November 2017.  As noted above, however, Maryland CNC scores were the same in these two VA examinations provided.  The representative also stated an issue with testing speech recognition without proper hearing protection, but this is outside of the scope of the Board's decision, and the Board reiterates that it is bound by mechanical application of the rating schedule.  See Lendenmann, 3 Vet. App. 345.  The record indicates that the examinations of record were completed pursuant to VA standards.  

In Martinak v. Nicholson, 21 Vet. App. 447 (2007), the Court 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, 21 Vet. App. at 455.  The September 2016 and November 2017 VA examiners noted the Veteran reported difficulty understanding speech and having to ask people to repeat themselves.  To the extent the Veteran has complaints of impairment in his daily life, his inability to hear is contemplated by the hearing loss criteria.  See Doucette v. Shulkin, 28 Vet. App. 366, 368 (2017). 

Based on the foregoing, the Board concludes that the preponderance of the evidence is against a finding that the Veteran warrants a rating in excess of 20 percent for bilateral hearing loss.  The application of the designations to Table VII results in a 0 percent rating based solely on the VA examinations; however, the private audiogram provided some evidence for a 20 percent rating based on puretone threshold average alone.  There is no other medical evidence that provides a basis for rating the Veteran's bilateral hearing loss.  There is, therefore, no medical evidence to support a higher rating for any period of time under consideration.  For those reasons, the Board finds that the Veteran's claim for a rating in excess of 20 percent for bilateral hearing loss is not warranted.  Should the Veteran's disability picture change in the future, he may request consideration for a higher rating.  See 38 C.F.R. § 4.1.


ORDER

A rating in excess of 20 percent for bilateral hearing loss is denied.



____________________________________________
Nathaniel J. Doan
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs