Citation Nr: 1807560	
Decision Date: 02/06/18    Archive Date: 02/14/18

DOCKET NO.  14-15 940A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in San Diego, California


THE ISSUE

Entitlement to an initial compensable disability rating for bilateral hearing loss.


ATTORNEY FOR THE BOARD

C. Samuelson, Counsel


INTRODUCTION

The Veteran served on active duty in the Coast Guard from September 1967 to August 1971.

This case comes before the Board of Veterans' Appeals (Board) on appeal from a May 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO).

The record reflects that in his May 2014 VA Form 9, the Veteran had requested a Board hearing in conjunction with his appeal.  However, the Veteran withdrew his hearing request via correspondence received in June 2017.  His request for a hearing before the Board is accordingly deemed to be effectively withdrawn.  See 38 C.F.R. § 20.702(e) (2014).


FINDINGS OF FACT

Throughout the pendency of this appeal, the Veteran had, at worst, Level II hearing in the right ear and Level II hearing 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. §§ 1154(a), 1155, 5107(b) (2012); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.85, 4.86, Diagnostic Code (DC) 6100 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran contends that a higher rating is warranted for his bilateral hearing loss disability.  He asserts that he strains to hear others talk and he has to record discussions in order to listen to them later.  He contends that this has impacted his career and personal life.  See September 2011 statement; Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).

Disability evaluations are determined by the application of a schedule of ratings that is based on the average impairment of earning capacity.  Separate diagnostic codes (DCs) identify the various disabilities.  38 U.S.C.A. § 1155; 38 C.F.R., Part 4. Where  there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating is to be assigned.  38 C.F.R. § 4.7.  The Veteran's entire history is reviewed when making disability evaluations.  See Schafrath v. Derwinski, 1 Vet. App. 589 (1995).  After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. 

Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibits symptoms that would warrant different evaluations during the course of the appeal, the assignment of staged ratings is appropriate.  See Fenderson v. West, 12 Vet. App. 119, 126-127 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 

Under the VA rating schedule, hearing impairment is evaluated based on audiological testing, including a puretone audiometry test and the Maryland CNC controlled speech discrimination test.  38 C.F.R. § 4.85.  To evaluate the degree of disability from defective hearing, the rating schedule establishes eleven auditory acuity levels from level I for essentially normal acuity through level XI for profound deafness.  38 C.F.R. § 4.85.  Table VI is used to assign a Roman numeral designation for hearing impairment based on a combination of the percent of speech discrimination and the pure tone threshold average.  38 C.F.R. § 4.85(b).  The puretone threshold average is the average of the puretone thresholds, in decibels, at 1000, 2000, 3000 and 4000 Hertz [Hz], shown on a puretone audiometry test. 38 C.F.R. § 4.85.  When there is no speech discrimination testing, Table VIa is used, based on the puretone threshold average alone.  38 C.F.R. § 4.85(c).  Table VII is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment for each ear.  38 C.F.R. § 4.85(e). 

Under 38 C.F.R. § 4.86, when the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hz) is 55 decibels or more, the rating specialist will determine the Level designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral.  38 C.F.R. § 4.86(a).  Further, when the average puretone threshold is 30 decibels at 1000 Hz, and 70 decibels or more at 2000 Hz, the rating specialist will determine the Level 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 Level. 38 C.F.R. § 4.86(b).  As an initial matter, the Board finds that an exceptional pattern of hearing under 38 C.F.R. § 4.86 has not been shown in the Veteran's audiogram during the appeal period; therefore that regulation is inapplicable. 

The Veteran's March 2012 VA examination revealed an average pure tone threshold hearing level of 45 dB in the left ear and 44 dB in the right ear.  Speech audiometry revealed speech recognition ability of 88 percent in the right ear and 88 percent in the left ear.  Application of these pure tone threshold average levels and speech recognition ability (percentage of discrimination) using Table VI, results in Roman Numeral II for the right ear and Roman Numeral II for the left ear.  Level II and Level II correspond to a noncompensable evaluation pursuant to Table VII.  The Veteran reported that he does not pick up on half of what is being said in meetings and his hearing loss affected him in school as he had to tape record his lectures since he could not hear them.

A September 2011 private audiogram from the Doctor Robert Martin Hearing Center, Inc. showed an average pure tone threshold hearing level of 41.25 dB in the left ear and 47.5 dB in the right ear and speech discrimination of 86 percent in the right ear and 92 percent in the left ear.  Although speech discrimination testing was performed, the audiogram is not adequate for evaluation purposes as there is no evidence that the Maryland CNC test was used for speech discrimination.  However, even assuming the Maryland CNC test was used in this evaluation, application of these pure tone threshold average levels and speech recognition ability (percentage of discrimination) using Table VI, results in Roman Numeral I for the right ear and Roman Numeral II for the left ear.  Level I and Level II correspond to a noncompensable evaluation pursuant to Table VII.  

The August 20, 2017 audiogram which was submitted by the Veteran in September 2017 is consistent with both the March 2012 VA examination and the September 2011 private audiogram from the Doctor Robert Martin Hearing Center, Inc. in showing a noncompensable evaluation for bilateral hearing loss.  It revealed an average pure tone threshold hearing level of 53.75 dB in the left and right ears.  Speech discrimination testing was not provided. 

Based on the results of the medical evidence of record discussed above, and in the absence of any additional medical evidence showing a more severe hearing disability, a compensable disability rating for bilateral hearing loss is not warranted.  The Board does not discount the difficulties the Veteran has with his auditory acuity.  However, the Board must predicate its determination on the basis of the results of the audiology studies of record.  Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992).


ORDER

A compensable disability rating for bilateral hearing loss is denied.





____________________________________________
STEVEN D. REISS
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs