Citation Nr: 1806943	
Decision Date: 02/02/18    Archive Date: 02/14/18

DOCKET NO.  14-12 549	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUE

Entitlement to an initial compensable rating for bilateral hearing loss.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

S. Solomon, Associate Counsel 


INTRODUCTION

The Veteran served on active duty from April 1968 to March 1971.

These matters come before the Board of Veterans' Appeals (Board) from a September 2012 and September 2013 rating decisions of the Department of Veteran Affairs (VA), Regional Office (RO) in Cleveland, Ohio, which denied compensable rating for the Veteran's bilateral hearing loss.  Jurisdiction of the claim was later transferred to St. Petersburg, Florida. 

The Veteran testified at a videoconference hearing before the undersigned Veteran Law Judge (VLJ) in September 2017 and transcript of that hearing is associated with the claims folder.  At the hearing, the Veteran waived RO review of a January 2017 audiology VA examination, which was not considered in the Statement of the Case (SOC).  


FINDING OF FACT

The Veteran's hearing loss, at worst, was manifested by level II hearing in the right ear and III in the left ear.


CONCLUSION OF LAW

The criteria for a 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, 4.86 (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).  

VA satisfied the duties to notify and assist in this appeal and neither the Veteran nor his representative has asserted any error as to these duties. See Scott v. McDonald, 789 F. 3d 1375 (Fed. Cir. 2015); Dickens v. McDonald, 814 F.3d 1359 (Fed. Cir. 2016).  The Veteran was provided VA examinations in January 2017 and July 2012; as discussed in greater details below, the Board finds these examinations to be adequate upon which to adjudicate the merits of this appeal.

II. Increase 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 Veteran's service-connected bilateral hearing loss is currently rated as zero-percent disabling under 38 C.F.R.§ 4.85, DC 6100 (2017).

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, Diagnostic Code 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).

The Veteran underwent a VA examination in January 2017. Pure tone thresholds, in decibels, were as follows:




HERTZ


1000
2000
3000
4000
RIGHT

30
55
70
75
LEFT

30
55
75
80


Speech recognition ability was 94 percent in the right ear and 88 percent in the left ear.  

The Veteran also underwent a VA examination in July 2012, where the pure tone thresholds, in decibels, were as follows:



HERTZ


1000
2000
3000
4000
RIGHT

25
50
65
70
LEFT

25
55
70
75


Speech recognition ability was 92 percent in the right ear and 88 percent in the left ear.  

In sum, during the appeal period, hearing acuity was, at worst, level III in the left ear and level II in the right ear.  A comparison between these levels and 38 C.F.R. § 4.85, Table VII, yields a 0 percent evaluation.

The Board has considered the Veteran's testimony that he was told by VA examiner that his hearing has gotten worse.  His testimony is consistent with the findings of the July 2012 and January 2017.  While the severity of his hearing loss has worsened over the years, it has not reached a level of impairment that is consistent with a compensable rating pursuant to the schedular.   The Board has sympathetically and fully considered the Veteran's statements regarding functional impact but finds that the rating criteria contemplate the symptoms presented by lay and medical evidence of file.



ORDER

Entitlement to a compensable rating for bilateral hearing loss is denied.




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



Department of Veterans Affairs