Citation Nr: 1806909	
Decision Date: 02/02/18    Archive Date: 02/14/18

DOCKET NO.  14-16 396	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Muskogee, Oklahoma


THE ISSUE

Entitlement to an initial compensable rating for bilateral hearing loss.


REPRESENTATION

Appellant represented by:	Dale K. Graham, Agent


ATTORNEY FOR THE BOARD

Sean Raymond, Associate Counsel


INTRODUCTION

The Veteran served on active duty from April 1966 to April 1970.

This case is before the Board of Veterans' Appeals (Board) from an August 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma.


FINDING OF FACT

Throughout the appeal period, the Veteran had no worse than level II hearing in the right ear, and level III hearing in the left.


CONCLUSION OF LAW

The criteria for an initial compensable rating for bilateral hearing loss have not been met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85, Diagnostic Code 6100 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

I. Duties to Notify and Assist

The Veterans Claims Assistance Act (VCAA) obligates VA to certain notice and assistance procedures to claimants.  See 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).  VA notified the Veteran of regulations pertinent to disability rating establishment via a February 2012 VCAA letter.  As this case concerns an appeal of an original grant of service connection, further notice is unnecessary, as subsequent notice defects, if any, do not prejudice the Veteran.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); see also Goodwin v. Peake, 22 Vet. App. 128, 134 (2008).  As to the duty to assist, VA obtained VA treatment records and identified private treatment records.  VA conducted a July 2012 examination of the Veteran's claimed disability.  Consequently, VA has satisfied its duties to notify and assist, and adjudication of the appeal does not prejudice the Veteran.

II. Increased Rating

A. Legal Criteria

The adverse impact of a veteran's service-connected disability on his or her ability to function under the ordinary conditions of daily life, including employment, as compared with applicable Schedule for Rating Disabilities criteria, determines the veteran's disability rating.  See 38 U.S.C. § 1155; 38 C.F.R. § 4.1.  VA shall assign the higher of two applicable ratings if the disability more nearly approximates its criteria; otherwise, the lower rating shall be assigned.  See 38 C.F.R. § 4.7.  Reasonable doubt as to the degree of disability shall be resolved in favor of the veteran.  See 38 C.F.R. § 4.3.  VA shall stage ratings when a service-connected disability exhibits symptoms warranting different ratings for distinct periods.  Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999).

After consideration of all procurable and assembled data, any reasonable doubt regarding service origin, the degree of disability, or any other point, shall be resolved in favor of the claimant.  38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).

Mechanical application of the Rating Schedule to the numeric designations for audiometry evaluations determine disability ratings for hearing impairment.  Lendenmann v. Principi, 3 Vet. App. 345 (1992).  An examination for VA compensation purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a pure tone audiometry test.  38 C.F.R. § 4.85(a).

Table VI, "Numeric Designation of Hearing Impairment Based on Puretone Threshold Average and Speech Discrimination," determines a Roman numeral designation (I through XI) for hearing impairment based on a combination of the percent of speech discrimination (horizontal rows) and the puretone threshold average (vertical columns).  The Roman numeral designation is located at the point where the percentage of speech discrimination and puretone threshold average intersect.  38 C.F.R. § 4.85(b).

"Puretone threshold average," as used in Tables VI and VIa, is the sum of the puretone thresholds at 1000, 2000, 3000 and 4000 Hertz, divided by four.  This average is used in all cases (including those in § 4.86) to determine the Roman numeral designation for hearing impairment from Table VI or VIa.  38 C.F.R. § 4.85(d).

Table VII, "Percentage Evaluations for Hearing Impairment," determines a percentage evaluation by combining the Roman numeral designations for hearing impairment of each ear.  The horizontal rows represent the ear having the better hearing and the vertical columns the ear having the poorer hearing.  The percentage evaluation is located at the point where the row and column intersect.  38 C.F.R. § 4.85(e).

When the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more, or 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. That numeral will then be elevated to the next higher Roman numeral. Each ear will be evaluated separately.  38 C.F.R. § 4.86. 

Table VIa, "Numeric Designation of Hearing Impairment Based Only on Puretone Threshold Average," is used to determine a Roman numeral designation (I through XI) for hearing impairment based only on the puretone threshold average. Table VIa will be used when the examiner certifies that use of the speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc., or when indicated under the provisions of § 4.86.  38 C.F.R. § 4.85(c).


B. Analysis

The Veteran's bilateral hearing loss is rated as noncompensable under DC 6100.  See 38 C.F.R. § 4.85.  The Veteran contends that his noncompensable disability rating fails to adequately capture the severity of his hearing loss.

The Veteran submitted a December 2011 private audiology examination report in support of his original claim for service connection for hearing loss.  The report does not list individual audiometric threshold levels.  However, the report does list puretone threshold averages of 44 for the right ear, and 43 for the left.  Speech recognition scores are 92 percent for the right ear and 92 percent for the left.  Application of these scores to Table VI results in Roman numeral designations of II for the right ear and I for the left.  When applied to Table VII, these numerals yield a noncompensable rating.

VA obtained a July 2012 VA examination in connection with the Veteran's original service connection claim.  Audiological threshold levels at 1000, 2000, 3000, and 4000 Hertz were respectively 10, 45, 60, and 90 on the right; and 10, 40, 65, and 90 on the left.  Average puretone threshold hearing levels were thus 51.25 on the right and 51.25 on the left.  Speech discrimination scores were noted as 100 percent on the right and 96 percent on the left.  Application of these scores to Table VI results in Roman numeral designations of I for the right ear and I for the left.  When applied to Table VII, these numerals yield a noncompensable rating.

An April 2014 VA audiological consult note reflects audiological threshold levels at 1000, 2000, 3000, and 4000 Hertz as 10, 40, 60, and 85 on the right; and 10, 40, 75, and 105 on the left.  Average puretone threshold hearing levels were thus 48.75 on the right and 57.5 on the left.  Speech discrimination scores were 88 percent for both the right and left ears.  Application of these scores to Table VI results in Roman numeral designations of II for the right ear and III for the left.  When applied to Table VII, these numerals yield a noncompensable rating.

As shown above, pertinent evidence of record demonstrates that the Veteran's bilateral hearing loss fails to meet schedular criteria necessary for a compensable rating throughout the appeal period.  Aside from the Veteran's lay contentions, remaining evidence of record contains no other indication that the Veteran's hearing loss is at a compensable level.  The Board acknowledges the Veteran's lay contentions concerning the severity of his hearing loss, and that he is competent to attest to symptoms of such; however, VA is bound by regulation to apply specific audiometric findings, which the Veteran is not competent to render, to determine appropriate disability evaluations for hearing loss.  

Based on audiological examinations taken throughout the appeal period, and a lack of evidence weighted against them, the Board finds the evidence of record to preponderate against the Veteran's claim for an initial compensable rating for bilateral hearing loss.  As such, the benefit-of-the-doubt doctrine is inapplicable and the claim is denied.  Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).


ORDER

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



____________________________________________
JONATHAN B. KRAMER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs