Citation Nr: 1805538	
Decision Date: 01/29/18    Archive Date: 02/07/18

DOCKET NO.  13-02 516	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas


THE ISSUE

Entitlement to an initial compensable rating for left ear hearing loss.


REPRESENTATION

Veteran represented by:	Texas Veterans Commission


ATTORNEY FOR THE BOARD

J. Wade, Associate Counsel







INTRODUCTION

The Veteran served in the United States Army from May 1962 to May 1965.

This case comes before the Board of Veterans' Appeals (Board) on appeal from a December 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  38 U.S.C. § 7107(a)(2) (2012).


FINDING OF FACT

During the period on appeal, the Veteran's hearing acuity has been manifested no worse than level II in the left ear. 


CONCLUSION OF LAW

The criteria for a compensable evaluation for left ear hearing loss have not been met.  38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.14, 4.85 - 4.87, Diagnostic Code 6100 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Duties to Notify and Assist

VA has met all statutory and regulatory notice and duty to assist provisions with respect to the Veteran's claims.  38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, (2017).

Additionally, the Veteran has not 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).

The Board finds the duties to notify and assist have been met, all due process concerns have been satisfied, and the appeal may be considered on the merits

II. Hearing Loss Evaluation Increase

Disability evaluations are determined by the application of a schedule of ratings that is based on average impairment of earning capacity.  38 U.S.C § 1155 (2012).  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 (2017).  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 disease or injury and their residual conditions in civilian occupations.  38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2017).  

With an initial rating assigned following a grant of service connection, as here, separate ratings may be assigned for separate periods of time, based on the facts found.  Fenderson v. West, 12 Vet. App. 119 (1999).

The Veteran requests a compensable evaluation for his service-connected left ear hearing loss.  The Veteran was provided VA examinations in November 2011 and May 2015, during the pendency of this claim.  The findings from these two VA examinations support that a higher rating is not warranted.

The Veteran's November 2011 VA examination showed puretone thresholds, in decibels, as follows:

Frequency: (Hertz)
1000
2000
3000
4000
Average
Left:
(decibel)
30
35
60
50
43.75
Right:
(decibel)
20
15
25
25
21.25

Maryland CNC testing revealed speech recognition ability of 96 percent in the right ear and 92 percent in the left ear.

It was noted that the Veteran's hearing loss did not affect his occupation or his daily activities. 

Hearing loss disability evaluations range from noncompensable to 100 percent based on organic impairment of hearing acuity, as measured by controlled speech discrimination tests in conjunction with the average hearing threshold, as measured by puretone audiometric tests in the frequencies 1,000, 2,000, 3,000 and 4,000 cycles per second.  38 C.F.R. § 4.85.  The rating schedule establishes 11 auditory acuity levels designated from Level I for essentially normal hearing acuity, through Level XI for profound deafness.  VA audiometric examinations are conducted by a controlled speech discrimination test together with the results of a puretone audiometry test.  The vertical lines in Table VI (in 38 C.F.R. § 4.85) 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 appropriate for the percentage of discrimination and the horizontal column appropriate to the puretone decibel loss.

The percentage evaluation is found from Table VII (in 38 C.F.R. § 4.85) by intersecting the vertical column appropriate for the numeric designation for the ear having the better hearing acuity and the horizontal row appropriate to the numeric designation level for the ear having the poorer hearing acuity.  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.  See 38 C.F.R. § 4.85.

The November 2011 VA audiological examination reveals that the Veteran had a puretone threshold average of 21.25 decibels in the right ear and 43.75 in the left ear.  He had right ear speech discrimination of 96 percent and left ear speech discrimination of 92 percent.  Using Table VI, these findings are equivalent to Level I hearing loss in right ear and Level I hearing loss in the left ear.

Considering Table VII, when there is Level I hearing loss in both ears, a noncompensable rating is the maximum rating for assignment under the schedular criteria.  38 C.F.R. § 4.87 (a), Code 6100.  

The Veteran's May 2015 VA examination showed puretone thresholds, in decibels, as follows:

Frequency: (Hertz)
1000
2000
3000
4000
Average
Left:
(decibel)
50
55
60
60
56.25
Right:
(decibel)
20
15
20
20
18.75

Maryland CNC testing revealed speech recognition ability of 98 percent in the right ear and 84 percent in the left ear.

The Veteran stated that the functional impact of his hearing loss affected him while he slept, communicated, and watched television. 

From Table VI of 38 CFR 4.85, Roman Numeral II is derived for the left ear and Roman Numeral I is derived for the right ear.  Using the Veteran's left ear as the poorer ear for 38 CFR 4.85's Table VII, a noncompensable rating is the maximum rating for assignment under the schedular criteria.  38 C.F.R. § 4.87 (a), Code 6100.  

The regulations have two provisions for evaluating veterans with certain patterns of hearing impairment that cannot always be accurately assessed under § 4.85 because the speech discrimination test may not reflect the severity of communicative functioning that veterans experience.  38 C.F.R. § 4.86 (a) indicates that if puretone thresholds in each of the specified frequencies of 1000, 2000, 3000, and 4000 Hertz are 55 decibels or more, an evaluation can be based either on Table VI or Table VIa, whichever results in a higher evaluation.  38 C.F.R. § 4.86 (b) indicates that when the puretone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz, the Roman numeral designation for hearing impairment will be chosen from either Table VI or Table VIa, whichever results in the higher numeral, and that numeral will then be elevated to the next higher Roman numeral.  In this case, the Veteran's hearing loss does not meet these criteria, so the Veteran's disability cannot be evaluated under the alternative rating scheme.

The above determinations are based upon consideration of applicable rating provisions.  In Martinak v. Nicholson, 21 Vet. App. 447, 455-56 (2007), the United States Court of Appeals for Veterans Claims (Court) noted that VA had revised its hearing examination worksheets to include the effect of the Veteran's hearing loss disability on occupational functioning and daily activities.  See Revised Disability Examination Worksheets, Fast Letter 07-10 (Dep't of Veterans Affairs Veterans Apr. 24, 2007); see also 38 C.F.R. § 4.10 (2017).  The Court also noted, however, that, even if an audiologist's description of the functional effects of the Veteran's hearing loss disability was somehow defective, the Veteran bears the burden of demonstrating any prejudice caused by a deficiency in the examinations.  

While the May 2015 examiner noted that there were functional impacts of the Veteran's hearing loss on his daily activities, the evidence does not indicate that his noncompensable hearing loss reduces the Veteran's earning capacity.  See Vazques-Flores v. Shinseki, 580 F.3d 1270 (2009).  Moreover, the Veteran has not alleged any deficiency in the exam. 

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, but finds the 0 percent rating assigned is appropriate for the entire rating period.

In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's increased initial rating claim for his service-connected left ear hearing loss disability, the doctrine is not for application.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).


ORDER

An initial compensable evaluation for left ear hearing loss is denied.




____________________________________________
Donnie R. Hachey
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs