Citation Nr: 1806656	
Decision Date: 02/01/18    Archive Date: 02/14/18

DOCKET NO.  12-36 094	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Portland, Oregon


THE ISSUE

Entitlement to an increased rating for bilateral hearing loss, evaluated as 10 percent disabling prior to November 16, 2015 and as 20 percent disabling from that date.


REPRESENTATION

Veteran represented by:	Oregon Department of Veterans' Affairs


WITNESS AT HEARING ON APPEAL

The Veteran 


ATTORNEY FOR THE BOARD

J. Barone, Counsel


INTRODUCTION

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  38 U.S.C. § 7107(a)(2) (West 2012).

The Veteran had active service from March 1958 to August 1962.

This matter comes before the Board of Veterans' Appeals (Board) from a March 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon.  

The Veteran testified at an October 2016 Board hearing.  A transcript is of record.

In February 2017, the Board granted service connection for a bilateral knee disability and remanded the instant issue for development of the record.  While the appeal was in remand status, the Agency of Original Jurisdiction (AOJ) issued a rating decision in June 2017 that awarded a 20 percent evaluation for bilateral hearing loss disability, effective November 16, 2015, the date of receipt of a statement by the Veteran.  The issue has been characterized accordingly.  The instant issue was returned to the Board in December 2017.

In January 2018, the Veteran submitted a claim of entitlement to a total rating based on unemployability due to service-connected disability (TDIU), based on all of his service-connected disabilities.  The record reflects that the AOJ is actively developing this claim for adjudication.  


FINDINGS OF FACT

1.  For the period prior to November 16, 2015, bilateral hearing loss disability was manifested in December 2006 by Level VIII hearing loss in the right ear and Level II hearing loss in the left ear, and in February 2011 by Level III hearing loss on the right ear and Level VI hearing loss in the left ear.

2.  For the period from November 16, 2015, bilateral hearing loss disability is manifested by Level VI hearing loss in the right ear and Level IV hearing loss in the left ear.


CONCLUSIONS OF LAW

1.  For the period prior to November 16, 2015, the criteria for an evaluation in excess of 10 percent for bilateral hearing loss have not been met.  38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.85, Tables VI, VIA, VII; 4.86; Diagnostic Code 6100 (2017).

2.  For the period from November 16, 2015, the criteria for an evaluation in excess of 20 percent for bilateral hearing loss have not been met.  38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.85, Tables VI, VIA, VII; 4.86; Diagnostic Code 6100 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2017).  

A letter dated in January 2011 discussed the evidence necessary to support claims for increase.  The Veteran was informed of the allocation of responsibilities between himself and VA and was also informed of the manner in which VA determines disability ratings and effective dates.  

The Board finds that the content of the notice fully complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify.  The Veteran has been provided with every opportunity to submit evidence and argument in support of his claim.  Further, the Board finds that the purpose behind the notice requirement has been satisfied because the Veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claim.  

With respect to VA's duty to assist, VA treatment records have been obtained and associated with the record.  VA examinations have been conducted, and the Board finds that the examination reports are adequate, in that the examinations were conducted by clinicians who reviewed the history, interviewed the Veteran, and performed appropriate evaluations.  

The Veteran has not otherwise identified any additional evidence or information which could be obtained to substantiate the claim.  The Board is also unaware of any such outstanding evidence or information.  Therefore, the Board is also satisfied that VA has complied with the duty to assist requirements of the VCAA and the implementing regulations. For the foregoing reasons, it is not prejudicial to the Veteran for the Board to proceed to a final decision in this appeal.

Analysis

The Veteran seeks higher evaluations for his hearing loss disability.  For the period prior to November 16, 2015, the disability is evaluated as 10 percent disabling.  For the period from November 16, 2015, the disability is evaluated as 20 percent disabling.  Review of the June 2017 rating decision that awarded the 20 percent evaluation indicates that the AOJ set the effective date of the 20 percent evaluation based on receipt of a statement by the Veteran indicating that his hearing loss disability had worsened.  

Disability ratings are based upon schedular requirements that reflect the average impairment of earning capacity occasioned by the state of a disorder.  38 U.S.C.A. § 1155.  Separate rating codes identify the various disabilities.  38 C.F.R. Part 4 (2017).  In determining the level of impairment, the disability must be considered in the context of the entire recorded history, including service medical records.  38 C.F.R. §4.2 (2017). 

Evaluations of hearing loss range from noncompensable to 100 percent, based upon organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests (Maryland CNC), together with the average hearing threshold level as measured by pure tone audiometry tests in the frequencies 1000, 2000, 3000, and 4000 cycles per second.  38 C.F.R. § 4.85(a) and (d) (2017).

To evaluate the degree of disability for service-connected bilateral hearing loss, the rating schedule establishes eleven (11) auditory acuity levels, designated from level I, for essentially normal acuity, through level XI, for profound deafness.  38 C.F.R. § 4.85, Diagnostic Code 6100 (2017).  The assignment of disability ratings for hearing impairment is derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered.  See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992).

When the pure tone thresholds at each of the four specified frequencies (1000, 2000, 3000, and 4000 hertz) are 55 decibels or more, or when the pure tone thresholds are 30 decibels or less at 1000 Hz and 70 decibels or more at 2000 Hz, 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 highest Roman numeral.  38 C.F.R. § 4.86.  The evidence demonstrates that in December 2006 and February 2011, the Veteran did not have a threshold of 55 decibels or more at the indicated frequencies or a puretone threshold of 30 or less at 1000 Hertz and 70 or more at 2000 Hertz.  However, in March 2017, he did have puretone thresholds at 55 decibels or more on the right.  As such, § 4.86 applies to this examination.

Examinations are conducted using the controlled speech discrimination tests, together with the results of the puretone audiometry test.  The horizontal lines in table VI, referenced in 38 C.F.R. § 4.85, represent nine categories of percent of discrimination based upon the controlled speech discrimination test.  The vertical columns in table VI represent nine categories of decibel loss based upon the puretone audiometry test.  The numeric designation of impaired efficiency (I through XI) will be determined for each ear by intersecting the horizontal row appropriate for the percentage of discrimination and the vertical column appropriate to puretone decibel loss; thus, for example, with a percent of discrimination of 70 and average puretone decibel loss of 64, the numeric designation is V for one ear.  The same procedure will be followed for the other ear.  The numeric designations are then applied to Table VII, also referenced in 38 C.F.R. § 4.85, to determine the Veteran's disability rating.

On VA examination in December 2006, audiometric testing revealed the following puretone thresholds:




HERTZ



1000
2000
3000
4000
Average
RIGHT
70
105
100
110
96.25
LEFT
15
65
70
75
56.25

Speech audiometry revealed recognition scores of 56 percent on the right and 88 percent on the left.  

On VA examination in February 2011, the following puretone thresholds were recorded:
  



HERTZ



1000
2000
3000
4000
Average
RIGHT
50
75
75
90
72.5
LEFT
45
75
75
80
68.75

Speech audiometry revealed recognition scores of 88 percent on the right and 68 percent on the left.  

In November 2015, the Veteran submitted a statement indicating that his hearing loss was worse than the assigned evaluation reflected.

On VA examination in March 2017, the Veteran reported that his hearing loss caused difficulty with understanding conversation, and that it was getting worse with time.  On audiometric testing, the following puretone thresholds were reported:
  



HERTZ



1000
2000
3000
4000
Average
RIGHT
60
75
75
85
74
LEFT
50
65
75
75
66

Speech audiometry revealed recognition scores of 92 percent on the right and 76 percent on the left.  

The Board observes that, for the period prior to November 16, 2015, application of the regulation to the findings of the December 2006 examination results in a numeric designation of VIII for the right ear and II for the left.  Application of the regulation to the findings of the February 2011 examination results in a numeric designation of III for the right ear and VI for the left.  A 10 percent evaluation is warranted when those values are applied to Table VII.  38 C.F.R. § 4.85, Diagnostic Code 6100 (2017).   As such, the currently assigned 10 percent evaluation is correct for this period of the appeal.

For the period from November 16, 2015, application of the regulation to the findings of the March 2017 examination results in a numeric designation of VI for the right ear and IV for the left.  A 20 percent evaluation is warranted when those values are applied to Table VII.  38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100 (2017).   As such, the currently assigned 20 percent evaluation is correct for this period of the appeal.

The Board does not doubt the sincerity of the Veteran's assertions regarding the severity of his hearing loss, or its functional impact.  However, the Board must apply the regulation as it is currently written, which requires objective audiometric testing at certain levels to qualify for the various levels of compensation.  The more probative evidence consists of that prepared by skilled audiologists, and such evidence demonstrates that the currently assigned evaluations for the Veteran's hearing loss disability are appropriate.  The evidence preponderates against a finding that an increased evaluation is warranted.  As such, the appeal is denied.  Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).


ORDER

For the period prior to November 16, 2015, entitlement to an evaluation in excess of 10 percent for bilateral hearing loss is denied.

For the period from November 16, 2015, entitlement to an evaluation in excess of 20 percent for bilateral hearing loss is denied.



____________________________________________
DONNIE R. HACHEY
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs