Citation Nr: 1805781	
Decision Date: 01/30/18    Archive Date: 02/07/18

DOCKET NO.  12-30 507	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Phoenix, Arizona


THE ISSUE

Entitlement to an initial, compensable rating for bilateral hearing loss.


REPRESENTATION

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


ATTORNEY FOR THE BOARD

G. E. Wilkerson, Counsel







INTRODUCTION

The Veteran served on active duty from August 1968 to August 1972.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2012 rating decision of the Department of Veterans Affairs (VA) Regional Offices (RO) in Phoenix, Arizona.


FINDING OF FACT

The Veteran's hearing loss is shown to have been manifested by no worse than Level III hearing for the right ear and Level II hearing for the left ear.


CONCLUSION OF LAW

The criteria for the assignment of an initial compensable rating for the service-connected bilateral hearing loss are not met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.159, 4.1, 4.7, 4.85, Diagnostic Code 6100, 4.86 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran contends that he is entitled to a compensable rating for his service-connected bilateral hearing loss disability.

Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule).  38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10.

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 evaluation will be assigned.  38 C.F.R. § 4.7.

In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991).  Where, as here, 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 concern.  Francisco v. Brown, 7 Vet. App. 55 (1994).  Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007).  Here, as explained below, a uniform evaluation of the disability on appeal is warranted.

The Veteran's bilateral hearing loss disability is rated as noncompensably disabling under the criteria of 38 C.F.R. § 4.85, Diagnostic Code 6100.

Disability ratings for service-connected hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations rendered from audiometric evaluations.  38 C.F.R. § 4.85; Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992).  Evaluations of bilateral hearing loss range from noncompensable to 100 percent based on an 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 of 1000, 2000, 3000 and 4000 cycles per second.  The rating schedule establishes 11 auditory acuity Levels designated from Level I for essentially normal hearing acuity through Level XI for profound deafness. 

The vertical line in Table VI (printed in 38 C.F.R. § 4.85) represents nine categories of the percentage of discrimination based on controlled speech discrimination test.  The horizontal columns in Table VI represent nine categories of decibel loss based on the puretone audiometry test.  The numerical 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 level for the ear having the better hearing acuity and the horizontal row appropriate for the numeric designation for the level for the ear having the poorer hearing acuity.  For example, if the better ear had a numeric designation of Level "IV" and the poorer ear had a numeric designation of Level "VII," the percentage evaluation is 20 percent.  See 38 C.F.R. § 4.85.

Regulations also provide in cases of exceptional hearing loss, i.e., when the puretone 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.  38 C.F.R. § 4.86(a).  The provisions of 38 C.F.R. § 4.86(b) further provide when the puretone 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; and then that numeral will be elevated to the next higher Roman numeral.  Each ear will be evaluated separately.  38 C.F.R. § 4.86.

On VA treatment in September 2011, the Veteran reported bilateral hearing loss.

Audiometric testing revealed that pure tone thresholds, in decibels, were as follows:



HERTZ



1000
2000
3000
4000
RIGHT
10
35
        80
80
LEFT
10
20
80
85

The examiner noted that audiological testing showed bilateral mild to severe sensorineural hearing loss.

The examiner did not provide Maryland CNC speech discrimination scores, but application of these findings to table VIa reflects level III in the right ear and level II in the left ear.  Combining these levels according to Table VII results in a 0 percent rating.  

On VA examination in January 2012, pure tone thresholds, in decibels, were as follows:



HERTZ



1000
2000
3000
4000
RIGHT
15
45
95
90
LEFT
15
45
90
90

Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 96 percent in the left ear.

The examiner diagnosed bilateral sensorineural hearing loss.  With respect to the impact of the condition on his daily life, the Veteran reported that he could hardly hear the television.  He could also not hear in the well in the presence of background noise.

Using Table VI, the Veteran's January 2012 examination results revealed level II hearing in the right ear and level II hearing in the left ear.  Combining these levels according to Table VII results in a 0 percent rating.  

On VA examination in April 2016, pure tone thresholds, in decibels, were as follows:



HERTZ



1000
2000
3000
4000
RIGHT
10
25
85
75
LEFT
10
40
85
90

Speech audiometry revealed speech recognition ability of 94 percent in the right ear and of 94 percent in the left ear.

The examiner diagnosed bilateral sensorineural hearing loss.  The Veteran reported that he could hear people, but could not understand them in background noise.  

Using Table VI, the Veteran's April 2016 examination results revealed level I hearing in the right ear and level I hearing in the left ear.  Combining these levels according to Table VII results in a 0 percent rating.  

In various written statements, the Veteran has reported that his hearing is declining, and that he has difficulty hearing others in conversation.  He had hoped that hearing aids would help, but they have offered little improvement.

The Veteran also submitted a statement from his wife, who wrote that the Veteran had difficulty hearing the television and normal conversation, particularly when there was any background noise.

However, the audiometric findings do not support the assignment of a compensable rating.  Notably, none of the audiometric examinations demonstrate an exceptional pattern of hearing loss under 38 C.F.R. § 4.86.

The Board has considered the Veteran's statements, as well as his wife's statement, regarding the severity of his hearing loss and its impact on his ability to understand in conversation particularly in the presence of background noise, and in no way discounts the difficulties that the Veteran experiences as a result of bilateral hearing loss; however, it must be reiterated that the assignment of disability ratings for hearing impairment is derived by a mechanical application of the rating schedule to the numeric designation assigned after audiometry results are obtained.  Hence, the Board has no discretion in this matter and must predicate its determination on the basis of the results of the audiology study of record.  Lendenmann, supra.  In other words, the Board is bound by law to apply VA's rating schedule based on the Veteran's audiometry results.  See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. To that end, the Veteran's assertions as to the severity of his bilateral hearing loss, though competent and credible, are less probative than the objective audiology studies of record, prepared by skilled professionals, in determining that his bilateral hearing loss does not meet the criteria for a compensable rating.  See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (2007).  

Further, the examination reports documented above also noted and considered the Veteran's report of the impact his hearing loss had on his ordinary conditions of life including his ability to work.  See Martinak v. Nicholson, 21 Vet. App. 447 (2007).  

The Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record.  See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record)."

Accordingly, an initial compensable rating for bilateral hearing loss disability is not warranted.  Additionally, given the relative consistency in audiometric test results, the Board concludes that there is no basis for staged rating of the Veteran's service-connected hearing loss disability.  In reaching the decision with regard to the appropriate disability rating, the Board has considered the benefit-of-the-doubt doctrine.  See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990).  Because the evidence preponderates against the claim for an initial compensable disability rating for the Veteran's service-connected bilateral hearing loss, however, the benefit-of-the- doubt doctrine is inapplicable. See 38 U.S.C. § 5107(b).


ORDER

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


____________________________________________
A. S. CARACCIOLO
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs