Citation Nr: 1807328	
Decision Date: 02/05/18    Archive Date: 02/14/18

DOCKET NO.  05-29 976	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Milwaukee Pension Center


THE ISSUE

Entitlement to a rating in excess of 30 percent from January 24, 2005 to February 27, 2012, and in excess of 50 percent thereafter, for bilateral hearing loss.


REPRESENTATION

Appellant represented by:	Vietnam Veterans of America


ATTORNEY FOR THE BOARD

T. Davis, Associate Counsel



INTRODUCTION

The Veteran served on active duty in the Army from November 1951 to November 1953.  He died in June 2012.  The appellant in this case is his surviving spouse.

This matter originally came to the Board of Veterans' Appeals (Board) from the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan.  As set forth above, the appellant's claim is in the jurisdiction of the Milwaukee Pension Center in Milwaukee, Wisconsin.

This matter was previously before the Board in April 2017 and September 2010.  In April 2017, the Board instructed the RO to associate a December 2007 hearing test, referenced in VA treatments records, with the claims file. When this matter was before the Board in September 2010, the Board remanded for additional development, including providing the Veteran with an opportunity to identify or submit additional evidence, and providing the Veteran with a VA audiological examination. The Appeals Management Center issued a Supplemental Statement of the Case (SSOC) in August 2017.

The Veteran died in June 2012.  According to the record on appeal, the Agency of Original Jurisdiction (AOJ) has granted the appellant's request to be substituted in the Veteran's appeal pursuant to 38 U.S.C.A. § 5121A.  See e.g. January 14, 2014, VA letter to the Honorable John D. Dingell indicating that the AOJ had substituted the Veteran's surviving spouse as the appellant for this appeal.  

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).




FINDINGS OF FACT

1. Prior to March 18, 2010, the Veteran's service- connected bilateral hearing loss had been manifested by no worse than level VI hearing acuity in the right ear and level VII hearing acuity in the left ear.

2. For the period from March 18, 2010, the Veteran's service- connected bilateral hearing loss had been manifested by no worse than level XI hearing acuity in the right ear and level VII hearing acuity in the left ear.


CONCLUSION OF LAW

1. The criteria for a rating in excess of 30 percent for the period prior to March 18, 2010 for a bilateral hearing loss disability have not been met. 38 U.S.C.A. §§ 1155, 5107(a) (West 2014); 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100 (2017).

2. The criteria for a rating in excess of 60 percent for the period from March 18, 2010 for a bilateral hearing loss disability have not been met. 38 U.S.C.A. §§ 1155, 5107(a) (West 2014); 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Veterans Claims Assistance Act of 2000 (VCAA)

As a preliminary matter, the Board finds that no further notice or development action is necessary in order to satisfy VA's duties under the VCAA.  In an October 2005 letter, VA notified the Veteran of the information and evidence needed to substantiate and complete the claim, and of what part of that evidence the Veteran was to provide and what part VA would attempt to obtain for him.  38 U.S.C.A. §5103(a); 38 C.F.R. § 3.159(b) (1).  Further, a March 2006 letter included the additional notification requirements delineated in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).

With respect to VA's duty to assist, the record shows that VA has undertaken all necessary development action.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  The appellant has not argued otherwise.  The RO has obtained VA clinical records regarding the medical treatment at issue in this case.  38 U.S.C.A. § 5103A (c); 38 C.F.R. § 3.159(c) (2), (3).  Specifically, a December 2007 treatment record from the Detroit VA Medical center was located and associated with the claims file.  The record showed that the Veteran's hearing was tested at the time.  However the record is not sufficient evidence to evaluate the Veteran's hearing impairment as it is not clear if the audiological examination complied with 38 CFR § 4.85 (a). 

For the reasons set forth above, and given the facts of this case, the Board finds that no further notification or development action is necessary.

Laws and Regulations

The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 

Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.1 (2017). Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2017). Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2017). 

The Veteran's entire history is reviewed when making a disability determination. See 38 C.F.R. § 4.1 (2017). Where service connection has already been established, and increase in the disability rating is at issue, it is the present level of the disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). 

However, in Fenderson v. West, 12 Vet. App. 119 (1999), it was held that evidence to be considered in the appeal of an initial assignment of a disability rating was not limited to that reflecting the then current severity of the disorder. The Court also discussed the concept of the "staging" of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. See also Hart v. Mansfield, 21 Vet. App. 505 (2008).

The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14 (2017). The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261- 62 (1994).

Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. §4.7 (2017).

A rating for hearing loss is determined by a mechanical application of the rating schedule to the numeric designations assigned based on audiometric test results. Lendenmann v. Principi, 3 Vet. App. 345 (1992).

Under the rating criteria, the basic method of rating bilateral hearing loss is based on examination results including a controlled speech discrimination test (Maryland CNC), and a pure tone audiometric test of pure tone decibel thresholds at 1000, 2000, 3000, and 4000 Hz with an average pure tone threshold obtained by dividing these thresholds by four.

Once these test results have been obtained, employing Table VI, a Roman numeral designation of auditory acuity level for hearing impairment is ascertained based on a combination of the percent of speech discrimination and pure tone threshold average. Once a Roman numeral designation of auditory acuity level for each ear has been determined, Table VII is used to determine the percentage evaluation for bilateral hearing loss by combining the Roman numeral designations of auditory acuity level for hearing impairment of each ear. 38 C.F.R. § 4.85 (2017). 

There is an alternative method of rating hearing loss in defined instances of exceptional hearing loss. In such exceptional cases, the Roman numeral designation for hearing loss of an ear may be based only on pure tone threshold average, using Table VIA, or from Table VI, whichever results in the higher Roman numeral. Exceptional hearing exists when the pure tone threshold at the frequencies of 1000, 2000, 3000, and 4000 Hertz is 55 decibels or more; or where the pure tone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz. The higher Roman numeral, determined from Table VI or VIA, will then be elevated to the next higher Roman numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86.

The Veteran underwent a VA examination in April 2005, audiological evaluation pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
25
50
65
70
75
LEFT
40
55
60
65
75

The puretone threshold average was 65 for the right ear and 64 for the left ear. Speech audiometry revealed speech recognition ability of 60 percent in the right ear and of 56 percent in the left ear. From Table VI of 38 CFR 4.85, Roman Numeral VI is derived for the right ear and Roman Numeral VII is derived for the right ear. This is determined by intersecting the percent of speech discrimination row with the puretone threshold average column. A 30 percent evaluation is derived from Table VII of 38 CFR 4.85 by intersecting row VI, the better ear, with column VII, the poorer ear.

The Veteran underwent a private audiological examination in December 2005.  The results were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
30
55
70
-
75
LEFT
35
50
60
-
75

Speech discrimination scores were 48 percent in the right ear and 52 percent in the left ear in May 2006. See private treatment records received May 2006.  However, this exam is not sufficient to adjudicate the claim.  Although the veteran's hearing was tested, the section listing the examining audiologist is blank. Also, the section titled "Type of Visit" with the options "C&P", "Audiological Evaluation", and "Other "are all blank. Finally, there is no indication that the hearing test was a Maryland CNC controlled speech discrimination test not if it is noted if the exam was conducted with the use of hearing aids.  Based on the foregoing, the Board finds the December 2007 audiological examination in adequate.

Nonetheless, the Veteran was afforded another VA audiological examination in March 2010. The results are below.




HERTZ



500
1000
2000
3000
4000
RIGHT
25
65
85
75
85
LEFT
40
60
65
70
70

His right ear puretone threshold average was 78 while his left ear was 66. Speech discrimination scores were 12 percent in the right ear and 64 percent in the left ear. 


The Veteran underwent a final VA audiological examination in February 2012. The results are below.



HERTZ



500
1000
2000
3000
4000
RIGHT
40
65
90
105+
105+
LEFT
40
65
75
80
85
		

The right ear puretone threshold average was 91 and the left ear was 76. Speech discrimination scores were 8 percent in the right ear and 76 percent in the left ear.

The March 2010 VA examination findings show the left ear with 66 percent speech discrimination. Decibel (dB) loss at the puretone threshold of 1000 Hertz (Hz) is 60, with a 65 dB loss at 2000 Hz, a 70 dB loss at 3000 Hz, and a 70 dB loss at 4000 Hz. The average decibel loss is 78 in the left ear. From Table VI of 38 CFR 4.85, Roman Numeral VII is derived for the right ear. This is determined by intersecting the percent of speech discrimination row with the puretone threshold average column. The right ear shows 12 percent speech discrimination. Decibel (dB) loss at the puretone threshold of 1000 Hertz (Hz) is 65, with a 85 dB loss at 2000 Hz, a 75 dB loss at 3000 Hz, and a 85 dB loss at 4000 Hz. The average decibel loss is 78 in the right ear. From Table VI of 38 CFR 4.85, Roman Numeral XI is derived for the right ear. This is determined by intersecting the percent of speech discrimination row with the puretone threshold average column.

A 60 percent evaluation is derived from Table VII of 38 CFR 4.85 by intersecting row VII, the better ear, with column XI, the poorer ear. An evaluation of 60 percent is assigned because the left ear has an average decibel loss of 66 with a speech discrimination of 64 percent and the right ear has an average decibel loss of 78 with a speech discrimination of 8 percent. The evaluation for hearing loss is based on objective testing. Higher evaluations are assigned for more severe hearing impairment. Therefore, effective March 18, 2010, entitlement to an evaluation of 60 percent but no higher is granted for bilateral hearing loss.

The February 2012, VA examination findings show the left ear with 76 percent speech discrimination. Decibel (dB) loss at the puretone threshold of 1000 Hertz (Hz) is 65, with a 75 dB loss at 2000 Hz, a 80 dB loss at 3000 Hz, and a 85 dB loss at 4000 Hz. The average decibel loss is 76.25 in the left ear. Table VIa under 38 CFR 4.85 provides a roman numeral VI for the left ear based on its puretone threshold average. 38 CFR 4.86a applies for the left ear. The right ear shows 8 percent speech discrimination. Decibel (dB) loss at the puretone threshold of 1000 Hertz (Hz) is 65, with a 90 dB loss at 2000 Hz, a 105 dB loss at 3000 Hz, and a 105 dB loss at 4000 Hz. The average decibel loss is 91.25 in the right ear. From Table VI of 38 CFR 4.85, Roman Numeral XI is derived for the right ear. This is determined by intersecting the percent of speech discrimination row with the puretone threshold average column. A 50 percent evaluation is derived from Table VII of 38 CFR 4.85 by intersecting row VI, the better ear, with column XI, the poorer ear. 

The Board notes that the February 2012 VA examination scores results in a 50 percent evaluation for bilateral hearing loss. However, as the Veteran is deceased and we are unable to access his present level of disability. The benefit of the doubt goes to the Claimant in this case and the Board grants a 60 percent evaluation for bilateral hearing loss, effective from March 18, 2010, the date of the audiological examination yielding result commensurable with a 60 percent evaluation. 



ORDER

Entitlement to a rating of 60 percent but no greater for bilateral hearing loss is granted from March 18, 2010 and thereafter.



____________________________________________
MARJORIE A. AUER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs