Citation Nr: 1805604	
Decision Date: 01/29/18    Archive Date: 02/07/18

DOCKET NO.  14-02 222	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUE

Entitlement to an initial compensable evaluation for bilateral hearing loss.


REPRESENTATION

Veteran represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

C. Garcia, Associate Counsel


INTRODUCTION

The Veteran served on active duty in the United States Army from November 1971 to November 1974.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.

In May 2014 and June 2015, this matter was remanded for further development.  The case is once again before the Board.


FINDING OF FACT

The Veteran's hearing is manifested by at worst level II acuity in the right ear and level I acuity in the left ear.


CONCLUSION OF LAW

1.  The criteria for an initial compensable initial evaluation for bilateral hearing loss have not been met.  38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.321, 4.7, 4.85, 4.86, Diagnostic Code 6100 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Duties to Notify and Assist

VA has a duty to notify and assist claimants in substantiating claims for VA benefits.  38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).

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 the duty to assist argument).

The Board finds that all relevant facts have been properly and sufficiently developed in this appeal and that no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to his claim.  Appellate review may proceed without prejudice to the Veteran.

II.  Increased Rating for Hearing Loss

Disability ratings are based upon VA's Schedule for Rating Disabilities as set forth in 38 C.F.R. Part 4 (2017).  The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity in civil occupations.  38 U.S.C. § 1155 (2012).  The disability must be viewed in relation to its history.  38 C.F.R. § 4.1 (2017).  A higher evaluation shall be assigned where the disability picture more nearly approximates the criteria for the next higher evaluation.  38 C.F.R. § 4.7 (2017).

In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern.  See Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  However, consideration also must be given as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim.  Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).

In evaluating service-connected hearing loss, disability evaluations are derived from a mechanical application of the rating schedule to numeric designations assigned after audiometric evaluations are performed.  Lendenmann v. Principi, 3 Vet. App. 345 (1992).  Evaluations of bilateral hearing loss range from noncompensable (0 percent) to 100 percent based on organic impairment of hearing acuity.  Audiological examinations used to measure impairment must be conducted by a state-licensed audiologist and must include both a controlled speech discrimination test (Maryland CNC) and pure tone audiometric tests.  38 C.F.R. § 4.85(a).

The Ratings Schedule provides a table for rating purposes (Table VI) to determine a Roman numeral designation (I for essential normal acuity through XI for profound deafness) for hearing impairment, based upon a combination of the percent of speech discrimination and the pure tone threshold average which is the sum of the pure tone thresholds at 1000, 2000, 3000 and 4000 Hertz, divided by four.  See 38 C.F.R. § 4.8, Diagnostic Code 6100.

Table VII is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment of each ear.  The horizontal row represents the ear having the poorer hearing and the vertical column represents the ear having the better hearing.  Id.

When the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more, 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.  Each ear will be evaluated separately.  38 C.F.R. § 4.86(a) (2017).

When the pure tone 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 will be evaluated separately.  38 C.F.R. § 4.86(b) (2017).

The Veteran had a VA audiological examination in July 2011 at which he said he had difficulty understanding the television and in most other situations.  On the audiological evaluation, pure tone thresholds, in decibels, were as follows:

HERTZ

500
1000
2000
3000
4000

RIGHT

25
25
10
25
30

LEFT

25
20
10
25
30

Speech audiometry revealed speech recognition ability of 88 percent in the right ear and of 92 percent in the left ear.  Pure tone threshold averages were 23 decibels on the right and 21 on the left.  

The Veteran had another VA examination in July 2014.  The VA examiner noted that the test results were not reliable and not suitable for rating purposes and therefore they were not being reported.  The Veteran had another VA examination in October 2015 at which he reported that his hearing loss had gotten worse, especially in the left ear.  On the audiological evaluation, pure tone thresholds, in decibels, were as follows:

HERTZ

500
1000
2000
3000
4000

RIGHT

20
20
15
25
40

LEFT

25
25
20
35
50

Speech audiometry revealed speech recognition ability of 84 percent in the right ear and of 92 percent in the left ear.  Pure tone threshold averages were 25 on the right and 33 on the left.

Since the audiological findings for the test completed do not show pure tone thresholds at 55 decibels or more at each of the four specified frequencies or thresholds at 70 decibels or more at 2000 Hertz with 30 decibels or less at 1000 Hertz, exceptional patterns of hearing loss are not shown and the Board will not determine the Roman numeral designation for hearing impairment from Table VIA.  Only Table VI will be used.  See 38 C.F.R. § 4.86.

When applying the pure tone averages and speech recognition scores from July 2011 to Table VI, the right ear is assigned a Level II and the left ear is assigned a Level I.  The Board then applies those levels to Table VII, which results in a 0 percent, noncompensable evaluation for the Veteran's bilateral hearing loss.

When applying the pure tone averages and speech recognition scores from October 2015 to Table VI, the right ear is assigned a Level II and the left ear is assigned a Level I.  The Board then applies those levels to Table VII, which results in a 0 percent, noncompensable evaluation for the Veteran's bilateral hearing loss.

The July 2011 and October 2015 audiological examinations additionally addressed the functional limitations related to hearing loss.  Martinak v. Nicholson, 21 Vet. App. 447 (2007).  Nevertheless, a disability rating higher than 0 percent for bilateral hearing loss is not warranted based on any audiological findings of record.

The Board also does not find that it is necessary to consider an implied claim for a total disability rating based on individual unemployability (TDIU) pursuan to Rice v. Shinseki, 22 Vet. App. 447 (2009), as there is no indication or an assertion that the Veteran is unemployable as a result of this service-connected disability.  

Finally, in light of the holding in Fenderson, supra, the Board has considered whether the Veteran is entitled to "staged" ratings for his service-connected bilateral hearing loss, as the Court indicated can be done in this type of case.  Based upon the record, we find that at no time during the claims period has the disability on appeal been more disabling than as currently rated under the present decision of the Board.

While the Board is sympathetic to the Veteran's contentions, in the final analysis, the Board finds that the preponderance of the evidence is against his claim.  38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  As such, the provisions of 38 U.S.C. § 5107(b) regarding reasonable doubt are not applicable.







ORDER

Entitlement to an initial compensable evaluation for bilateral hearing loss is denied.




____________________________________________
Michael J. Skaltsounis
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs