Citation Nr: 1806121	
Decision Date: 01/31/18    Archive Date: 02/07/18

DOCKET NO.  16-18 015	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Los Angeles, California


THE ISSUE

Entitlement to an initial compensable rating for service-connected bilateral hearing loss.


REPRESENTATION

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


ATTORNEY FOR THE BOARD

Yonelle Moore Lee, Associate Counsel






INTRODUCTION

The Veteran has active duty service in the Air Force from February 1961 to February 1965.

This matter comes before the Board of Veterans' Appeals (Board) from a May 2015 rating decision of the Department of Veteran Affairs (VA), Regional Office (RO).  In this rating decision, the RO granted service connection for a bilateral hearing loss disability, assigning a noncompensable rating.  The Veteran perfected an appeal of the initial rating assigned to this disability.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  38 U.S.C.A. § 7107(a)(2) (West 2014).


FINDING OF FACT

The Veteran's hearing loss, at worst, was manifested by Level I hearing in both the left and right ears, as evidenced by the results of his Puretone and Speech Discrimination tests in March 2015.


CONCLUSION OF LAW

The criteria for an initial compensable rating for bilateral hearing loss have not been met. 38 U.S.C. § 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. § 3.321, 4.1, 4.2, 4.7, 4.85; Diagnostic Code 6100 (2017).







REASONS AND BASES FOR FINDING AND CONCLUSION

I. The Duties to Notify and Assist

Pursuant to the Veterans Claims Assistance Act (VCAA), the VA has a duty to notify claimants about requirements to substantiate a claim for VA benefits, and assist in the development of their claim. 38 U.S.C. §§ 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.159, 3.326(a) (2017).  

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 (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 duty to duty to assist argument.  

II. Increased Rating

The VA's Schedule for Rating Disabilities is used to determine disability ratings once a disability is service-connected.  38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2017).  In the Rating Schedule, Diagnostic Codes (DCs) are assigned to specific disabilities.  These DCs designate percentage ratings based on the average functional impairment of the Veteran due to a service-connected disability.  38 C.F.R. §§ 3.321, 4.10 (2017).  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 (2017).   

The Board has reviewed all evidence of record pertaining to the history of the service-connected disability.  The Board has found nothing in the historical record that would lead to the conclusion that the current evidence of record is not adequate for rating purposes.  38 C.F.R. §§4.1, 4.41, 4.42 (2015); Schafrath v. Derwinski, 1 Vet. App. 589 (1991).
When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant.  38 U.S.C.A. §5107 (West 2014); 38 C.F.R. § 3.102 (2015); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  To deny a claim on its merits, the evidence must preponderate against the claim.  Alemany v. Brown, 9 Vet. App. 518 (1996).

The Veteran's service-connected bilateral hearing loss is currently rated as noncompensable under 38 C.F.R.§ 4.85, DC 6100.

Evaluations of defective hearing range from zero to 100 percent. This is based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests, together with the average hearing threshold level as measured by pure tone audiometric tests in the frequencies of 1000, 2000, 3000, and 4000 Hertz. To evaluate the degree of disability from service-connected hearing loss, the rating schedule establishes eleven auditory acuity levels ranging from numeric level I for essentially normal acuity, through numeric level XI for profound deafness. 38 C.F.R.§ 4.85, Tables VI and VII, DC 6100. 

Table VI in 38 C.F.R. § 4.85 is used to determine the numeric designation of hearing impairment based on the pure tone threshold average from the speech audiometry test and the results of the speech discrimination test. The vertical lines in Table VI 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.  (See Id.)  The numeric designation of impaired hearing (Levels I through XI) is determined for each ear by intersecting the vertical row corresponding to the percentage of discrimination and the horizontal column corresponding to the pure tone decibel loss.

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

The ratings for disability compensation for hearing loss are determined by the mechanical, meaning nondiscretionary, application of the criteria in Table VI and Table VII. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992).

On the authorized audiological evaluation in March 2015, pure tone thresholds, in decibels, were as follows:




HERTZ



1000
2000
3000
4000
Average
RIGHT
30
35
55
70
47.50
LEFT
30
40
60
70
50

Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 92 percent in the left ear.

Also of record is a July 2014 private audiogram; as there are no speech test results records, this examination is not adequate for rating purposes.

The Board notes that the Court has 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 v. Nicholson, 21 Vet. App. 447, 455 (2007).  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 examination.  Id.

In this case, the Board acknowledges that the Veteran's MOS Vehicle Operations is rated moderate, and that he was exposed to noise during military service.  The issue in appellate status is the severity of the service-connected disability.  The Veteran received a VA hearing examination in March 2015 which the Board finds adequate for purposes of adjudicating the merits of this appeal.  The VA examination notes that the Veteran claims to have difficulty understanding what people are saying; however he can understand if there is noise around him.  The Veteran reports recurrent and constant bilateral tinnitus which does not impact his ordinary functions of everyday life, including the ability to work.

Consideration has been given to assigning a staged rating; however, at no time during the period in question has the disability warranted a compensable rating.  Fenderson v. West, 12 Vet. App. 119 (1999).

In sum, the Veteran's bilateral hearing loss disability is not shown to be worse than level I in either ear, for the entire period on appeal.  A comparison between these levels and 38 C.F.R. § 4.85, Table VII, yields a 0 percent evaluation.  The results fall squarely within the scheduler criteria for a noncompensable rating.  The criteria for a compensable disability rating are therefore not met. 



ORDER

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



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


Department of Veterans Affairs