Citation Nr: 1805506	
Decision Date: 01/29/18    Archive Date: 02/07/18

DOCKET NO.  12-34 706	)	DATE
	)
	)

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


THE ISSUE

Entitlement to an evaluation in excess of 10 percent prior to March 14, 2017, and in excess of 40 percent therefrom for bilateral hearing loss disability.


REPRESENTATION

Veteran represented by:	Texas Veterans Commission


ATTORNEY FOR THE BOARD

C.A. Skow, Counsel




INTRODUCTION

The Veteran served on active duty from November 1970 to November 1974. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from September 2010 and October 2017 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky.


FINDINGS OF FACT

1.  Prior to March 14, 2017, hearing loss disability was manifested, at worst, by an average pure tone decibel loss of 66 in the right ear with 92 percent speech discrimination, and of 70 in the left ear with 92 percent speech discrimination.

2.  From March 14, 2017, hearing loss disability was manifested, at worst, by an average pure tone decibel loss of 63 in the right ear with 60 percent speech discrimination, and of 70 in the left ear with 40 percent speech discrimination


CONCLUSION OF LAW

The criteria for an evaluation in excess of 10 percent prior to March 14, 2017, and in excess of 40 percent therefrom for bilateral hearing loss disability are not met.  38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.85, 4.86, Tables VI, VIA, VII, Diagnostic Code 6100 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  VA's Duties to Notify and Assist 

As an initial matter, it is noted that VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012) and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017).

Neither the Veteran, nor his representative, has alleged prejudice or any issues with the duty to notify or the duty to assist.  The Federal Court of Appeals has held that "absent extraordinary circumstances... it is appropriate for the Board and the Veterans Court to address only those procedural arguments specifically raised by the veteran...."  See 38 U.S.C. §§ 5102, 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).

II.  Evaluations

The Veteran seeks an evaluation in excess of 10 percent prior to March 14, 2017, and in excess of 40 percent therefrom for bilateral hearing loss disability.  Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary.  The Secretary 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 (2012); 38 C.F.R. § 3.102 (2017); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).  To deny a claim on its merits, the evidence must preponderate against the claim.  Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54.

Legal Criteria

Disability evaluations are determined by the application of the VA 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 be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations.  38 U.S.C. § 1155; 38 C.F.R. § 4.1.  Any reasonable doubt regarding the degree of disability will be resolved in favor of the claimant.  38 C.F.R. § 4.3.  If two evaluations are potentially applicable, the higher evaluation 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.

To evaluate the degree of disability from defective hearing, the Rating Schedule establishes eleven auditory acuity levels from Level I for essentially normal acuity through Level XI for profound deafness.  38 C.F.R. §§ 4.85 , 4.87, Tables VI, VIa, VII.  Organic impairment of hearing acuity is measured by the results of controlled speech discrimination tests together with the average hearing threshold level as measured by a pure tone audiometry test in the frequencies of 1,000, 2,000, 3,000, and 4,000 cycles per second.  See 38 C.F.R. § 4.85(a), (d).  Ratings of hearing loss disability involve mechanical application of the rating criteria to the findings on official audiometry.  See Lendenmann v. Principi, 3 Vet. App. 345 (1992).  The schedular evaluations are intended to make proper allowance for improvement by hearing aids.  38 C.F.R. § 4.85.

Exceptional patterns of hearing impairment are rated under 38 C.F.R. § 4.86.  Specifically, an exceptional pattern of hearing loss is hearing loss of 55 decibels or more in each of the four specified frequencies (i.e. 1000, 2000, 3000, and 4000 Hertz ), and hearing loss with a pure tone threshold of 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz.  38 C.F.R. § 4.86(a), (b).

Facts & Analysis

After carefully reviewing the evidence of record, the Board finds that the preponderance of the evidence is against an evaluation in excess of 10 percent prior to March 14, 2017, and in excess of 40 percent therefrom for bilateral hearing loss disability.  The evidence of record does not more nearly reflect the criteria for higher evaluations.  38 C.F.R. §§ 4.7, 4.85, 4.86, Diagnostic Code 6100.

On the authorized VA audiological examination in August 2010, the average pure tone decibel loss was 66 in the right ear with 92 percent speech discrimination and 70 in the left ear with 92 percent speech discrimination.  Applying 38 C.F.R. § 4.85, Table VI, to the audiological findings, the Veteran has a numeric designation of II for his right ear and II for his left ear.  Application of 38 C.F.R. § 4.85, Table VII results in a finding that a 10 percent disability evaluation for the bilateral hearing loss is warranted.

On the authorized VA audiological examination in January 2012, the average pure tone decibel loss was 54 in the right ear with 94 percent speech discrimination and 54 in the left ear with 90 percent speech discrimination.  Applying 38 C.F.R. § 4.85, Table VI, to the audiological findings, the Veteran has a numeric designation of I for his right ear and II for his left ear.  Application of 38 C.F.R. § 4.85, Table VII results in a finding that a 10 percent disability evaluation for the bilateral hearing loss is warranted.

On the authorized VA audiological examination on March 24, 2017, the average pure tone decibel loss was 63 in the right ear with 60 percent speech discrimination and 70 in the left ear with 40 percent speech discrimination.  Applying 38 C.F.R. § 4.85, Table VI, to the audiological findings, the Veteran has a numeric designation of VI for his right ear and IX for his left ear.  Application of 38 C.F.R. § 4.85, Table VII results in a finding that a 40 percent disability evaluation for the bilateral hearing loss is warranted from this date.

The pure tone thresholds of record do not reflect an exceptional pattern of hearing loss as contemplated by 38 C.F.R. § 4.86 (a) because the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is not 55 decibels or more; and, as such, that provision is inapplicable.  Additionally, an exceptional pattern of hearing loss as contemplated by 38 C.F.R. § 4.86(b) is not shown as the documented pure tone thresholds for the Veteran are not 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz, and thus, neither Table VI or Table VIa is applicable.  38 C.F.R. § 4.86(b).

The Board has considered the effect of the Veteran's hearing loss on his ability to function in the work-place.  Friscia v. Brown, 7 Vet. App. 294 (1995); Martinak v. Nicholson, 21 Vet. App. 447 (2007).  The record shows that the Veteran felt uncomfortable asking people to repeat themselves and that he had difficulty understanding people.  See VA Examination (March 2017).  These symptoms fit within the symptoms contemplated by the schedular criteria.

The Board acknowledges that the Veteran believes his hearing acuity is worse than evaluated.  However, far more probative of the degree of the disability are the results of testing prepared by a skilled professional since the schedular criteria are predicated on audiological findings rather than subjective reports of severity of hearing loss.  In essence, lay statements are of limited probative value.  As a layperson, the Veteran is competent to report difficulty with his hearing; however, he is not competent to assign particular speech recognition scores or pure tone decibel readings to his current acuity problems.  As indicated above, ratings of hearing loss disability involve mechanical application of the rating criteria to the findings on official audiometry.  See Lendenmann, supra.

Accordingly, the claim is denied.  Absent a relative balance of the evidence, the evidence is not in equipoise and the benefit-of-the-doubt doctrine does not apply.  38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet.App. 49, 53 (1990).  Because the disability has not met the criteria for a higher evaluation at any time during the appeal period, there is no basis for a staged rating.  See Hart v. Mansfield, 21 Vet. App. 505 (2007).


ORDER

An evaluation in excess of 10 percent prior to March 14, 2017, and in excess of 40 percent therefrom for bilateral hearing loss disability is denied.




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


Department of Veterans Affairs