Citation Nr: 18157024
Decision Date: 12/11/18	Archive Date: 12/11/18

DOCKET NO. 17-39 665A
DATE:	December 11, 2018
ORDER
An increased, compensable rating for right ear hearing loss is denied.
FINDING OF FACT
Although the Veteran’s right ear hearing loss is manifested by a puretone threshold average of no higher than 89 decibels, with a speech discrimination score that is not less than 70 percent, using the Maryland CNC word list, application of the rating criteria does not result in a compensable disability.  
CONCLUSION OF LAW
The criteria for an increased, compensable rating for right ear hearing loss have not been met.  38 U.S.C. § 1155 (West 2012); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code (DC) 6100 (2017).
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran served on active duty from April 1978 to June 1993.
This appeal comes before the Board of Veterans’ Appeals (Board) from a December 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Decatur, Georgia.
Increased Rating for Right Ear Hearing Loss
Disability ratings are determined by application of the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on average impairment of earning capacity.  38 U.S.C. § 1155 (West 2012); 38 C.F.R. Part 4 (2017).  When a question arises as to which of two ratings applies under a particular diagnostic code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating.  Otherwise, the lower rating applies. 38 C.F.R. § 4.7 (2017).  After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2017). 
The Veteran’s entire history is to be considered when making disability evaluations.  38 C.F.R. § 4.1 (2017); Schafrath v. Derwinski, 1 Vet. App. 589 (1995).  Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern.  Francisco v. Brown, 7 Vet. App. 55 (1994).  Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made.  Hart v. Mansfield, 21 Vet. App. 505 (2007).
The Veteran is currently rated at a non-compensable, zero percent rating for his right ear hearing loss.
Hearing loss is evaluated under 38 C.F.R. § 4.85, DC 6100 (2017).  In evaluating hearing loss, disability ratings are derived from a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are performed.  See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992).  Hearing loss disability evaluations range from noncompensable to 100 percent based on organic impairment of hearing acuity, as measured by controlled speech discrimination tests using the Maryland CNC word list, in conjunction with the average hearing threshold, 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, DC 6100.  
In a November 2018 appellate brief, the Veteran asserts that he has not received a VA audio examination since March 2016, and thus, he should be re-examined for a contemporaneous examination.
The medical evidence of record has not shown, nor has the Veteran asserted, that his right ear hearing has worsened since his last VA examination.  As a matter of fact, his most recent treatment record, a June 2018 audiology note, reflects in pertinent part, that the Veteran was fitted for his new binaural amplification, which fit appropriately; was provided with instructions for proper removal and insertion of batteries; and that the Veteran demonstrated the ability to perform all the associated functions appropriately.  However, no complaints about worsened hearing were noted.  Furthermore, an April 2017 audiology note reflects that pure tone testing revealed a moderate to moderately severe, “somewhat flat hearing loss in the right ear . . .” and that these results showed no significant changes compared to previous results in 2014.  While the Board is aware that the referring December 2014 audiologic results were rendered unreliable and inadequate for rating purposes, this April 2017 audiology did not indicate that the Veteran complained of worsened hearing in his right ear, even though it reflects that the Veteran reported that his hearing aid appeared to fluctuate at times.  Thus, given that there is no evidence of a material change in the severity of the Veteran’s disabilities since his last VA examination in March 2016, the Board finds that a new VA examination is not warranted.  See 38 C.F.R. § 3.327(a) (providing that re-examinations will be requested whenever VA needs to determine the current severity of a disability); see also Palczewski v. Nicholson, 21 Vet. App. 174 (2007) (holding that a new VA examination is not required simply because of the passage of time since an otherwise adequate examination was conducted); accord VAOPGCPREC 11-95 (April 7, 1995).  In determining that a new VA examination is not required, the Board notes the medical evidence of record, which entails recent treatment records that are merely a few months old, as well as an adequate VA examination, is sufficient to enable the Board to make a fully informed decision on this claim.  See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007); 38 C.F.R. §§ 3.159(c)(4), 3.326(a), 3.327 (2017).  
As noted above, the VA examiner determined that December 2014 audiometric results were inadequate for rating purposes.  Thus, this VA examination has no probative value and is completely discounted in the adjudication of this claim.  
In March 2016, however, the Veteran underwent another VA audiologic/examination for the right ear hearing loss.  At this VA examination, the Veteran described the overall functional impairment of hearing loss to his right ear as a complete inability to hear out of his right ear; and having difficulty with communicating with people who are talking when there is no sound in his right ear.  
On audiometric testing, puretone thresholds for the right ear, in dB, were 85dB at 1000Hz; 85dB at 2000Hz; 90dB at 3000Hz; 95dB at 4000 Hz, with an average puretone threshold of 88.75dB (rounded off to 89dB).  Speech audiometry revealed speech recognition ability of 70 percent in the right ear.  Applying these results to the Table VI Chart in 38 C.F.R. § 4.85, the puretone threshold average of 89dB and a speech discrimination of 70 percent for the right ear results in Level VII.  The non-service connected left ear is designated a Level I in Table VII.  See 38 C.F.R. § 4.86(f).  Applying the results to the Table VII Chart render a zero percent rating, based on a Level VII for the right ear (with the right ear being the poorer ear) combined with a Level I for the left ear.
Nonetheless, these audiometric results reflect evidence of an exceptional pattern of hearing for the right ear because the puretone thresholds are higher than 55dB at each of the four frequencies of 1000 Hz, 2000 Hz, 3000 Hz, and 4000 Hz.  Therefore, a rating assessment based on Table VIA is applicable, and the higher of the results between Table VI and Table VIA shall be applicable.  See 38 C.F.R. § 4.86.  In this regard, applying the average puretone threshold of 89dB to Table VIA results in Level VIII for the right ear.  Again, as noted above, the non-service connected left ear is designated a Level I in Table VII.  See 38 C.F.R. § 4.86(f).  Applying these results to the Table VII Chart, however, also render a zero percent rating, based on a level VIII for the right ear (with the right ear being the poorer ear) combined with a Level I for the left ear.  
Thus, even though the mechanical application of the Table VIA Chart, pursuant to 38 C.F.R. § 4.86, results in a higher Roman numeral of VIII for the right ear, it renders the same rating disability, which is no higher than the rating disability that is based on the mechanical application of the Table VI Chart.  
Summarily, based upon the foregoing mechanical hearing loss measurements from the March 2016 VA examination, the Board finds that an increased, compensable rating is not warranted for the service-connected right ear hearing loss.
The Board has considered whether separate ratings are available for the service-connected right ear hearing loss, under separate diagnostic codes, but finds that the evidence of record does not show that the Veteran has any other service-connected diseases of the ear that a schedular rating evaluation has not already contemplated.  Therefore, an increased, compensable rating for right ear hearing loss, under DC 6100, is denied.
 
MATTHEW TENNER
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	V-N. Pratt, Associate Counsel