Citation Nr: 1807616	
Decision Date: 02/06/18    Archive Date: 02/14/18

DOCKET NO.  14-31 458	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Roanoke, Virginia


THE ISSUE

Entitlement to a compensable rating prior to March 7, 2017; to a rating in excess of 10 percent from March 7, 2017, to June 7, 2017; and to a rating in excess of 30 percent beginning June 8, 2017, for bilateral hearing loss disability.


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

I. Cannaday, Associate Counsel





INTRODUCTION

The Veteran had active air service from August 1973 to July 1977 and from July 1980 to November 1982, and active military service from November 1982 to November 1983 and from December 1983 to January 1997. 

This case comes before the Board of Veterans' Appeals (Board) on appeal from a March 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama.  Jurisdiction over the case has since been transferred to the RO in Roanoke, Virginia.

During the pendency of the appeal, in an August 2017 rating decision, the RO assigned 10 percent rating, effective March 7, 2017; and a 30 percent rating, effective from June 8, 2017, for bilateral hearing loss disability.  That does not constitute a full grant of the benefit sought on appeal.  However, the Board has limited its consideration accordingly.  

In connection with this appeal, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in October 2017 and accepted that hearing in lieu of an in-person hearing before a member of the Board.  A transcript of that hearing has been associated with the claims file. 


FINDINGS OF FACT

1.  Prior to March 7, 2017, the Veteran's hearing impairment was no worse than Level II in either ear.

2.  From March 7, 2017, to June 7, 2017, the Veteran's hearing impairment was no worse than Level II in the right ear and Level VI in the left ear.

3.  Beginning June 8, 2017, the Veteran's hearing impairment is no worse than Level VI in either ear.

CONCLUSIONS OF LAW

1.  The criteria for a compensable rating for bilateral hearing loss disability have not been met prior to March 7, 2017.  38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.7, 4.85, Diagnostic Code 6100 (2017).

2.  The criteria for a rating in excess of 10 percent for bilateral hearing loss disability have not been met prior to June 8, 2017.  38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.7, 4.85, Diagnostic Code 6100 (2017).

3.  The criteria for a rating in excess of 30 percent for bilateral hearing loss disability have not been met beginning June 8, 2017.  38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.7, 4.85, Diagnostic Code 6100 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veteran asserts that he should have a higher rating for his bilateral hearing loss disability throughout his appeal because his level of impairment is worse than contemplated by the currently assigned rating.  Specifically, at his October 2017 Board hearing, the Veteran testified that his 30 percent evaluation should have begun in April 2012. 

Period prior to March 7, 2017

At a December 2012 audiological evaluation, the Veteran reported that his hearing disability caused occasional difficulty in hearing or understanding quiet conversation, and he reported that he had difficulty with speech at a distance.  The Veteran's audiometric testing results at that time were as follows:


500
1000
2000
3000
4000
Right
40
45
65
85
85
Left
40
45
55
70
80
 
Speech recognition ability was measured at 96 percent in the right ear and 92 percent in the left ear.  The examiner diagnosed bilateral sensorineural hearing loss.  Applying those values to the rating criteria results in a numeric designation of Level II in the right ear and Level II in the left ear.  38 C.F.R. § 4.85, Table VI (2017).  Application of the levels of hearing impairment in each ear to Table VII at 38 C.F.R. § 4.85 produces a noncompensable rating.

In December 2012, the Veteran submitted a private audiological evaluation conducted in July 2011.  The Veteran's audiometric testing results at that time were as follows:


500
1000
2000
3000
4000
Right
40
55
60
90
90
Left
40
40
65
80
80

Speech recognition ability was not measured.  Applying those values to the rating criteria results in a numeric designation of Level VII in the right ear.  38 C.F.R. § 4.85, Table VIA (2017).  However, as there is no speech discrimination score, the Board finds that the the Maryland CNC speech discrimination test was not used.  38 C.F.R. § 4.85.  Therefore the Board cannot determine the numeric designation value level of the right ear.  Thus, the Board is unable to use this test result for evaluation purposes.

In March 2016 the Veteran submitted another private audiological evaluation.  The Veteran's audiometric testing results appeared to be as follows:


500
1000
2000
3000
4000
Right
35
50
75
75
85
Left
35
30
70
65
80
 
Speech recognition ability appeared to be measured at 44 percent in the right ear and 60 percent in the left ear.  Applying those values to the rating criteria results in a numeric designation of Level VIII in the right ear and Level VI in the left ear.  38 C.F.R. § 4.85, Table VI (2017).  However, while the private audiogram had a speech discrimination score, there is no indication that the Maryland CNC speech discrimination test was used.  38 C.F.R. § 4.85.  Thus, the Board is unable to use this test result for evaluation purposes.

The Board finds that the December 2012 VA examination is the most probative evidence of record during the appeal period.  In addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in the final report.  Martinak v. Nicholson, 21 Vet. App. 447 (2007).  The December 2012VA examiner clearly identified the effects that the Veteran's bilateral hearing loss disability had on his daily activities, and the effects on the Veteran's social interactions.  Therefore, the Board finds that the VA examination report and addendum report are in compliance with the requirements.

There are no other audiogram reports of record showing the Veteran to have hearing impairment worse than that reported at the VA examination of record during the above appeal period.

The results of the Veteran's bilateral hearing loss disability fall within the schedular criteria for a 0 percent rating.  Therefore, the criteria for a compensable rating for bilateral hearing loss disability have not been met during the above appeal period. 38 C.F.R. § 4.85, Diagnostic Code 6100 (2017).

On and after March 7, 2017, and prior to June 8, 2017

The Veteran's VA treatment record reflects that in March 2017 he underwent audiological testing.  The Veteran's audiometric testing results at that time were as follows:


500
1000
2000
3000
4000
Right
45
50
70
85
85
Left
45
55
60
80
90
 
Speech recognition ability was measured at 92 percent in the right ear and 88 percent in the left ear.  Applying those values to the rating criteria results in a numeric designation of Level II in the right ear and Level VI in the left ear.  38 C.F.R. § 4.85, Tables VI, VIA (2017).  Application of the levels of hearing impairment in each ear to Table VII at 38 C.F.R. § 4.85 produces a 10 percent rating.

There are no other audiogram reports of record showing the Veteran to have hearing impairment worse than 10 percent during the above appeal period.  

The results of the Veteran's bilateral hearing loss disability fall within the schedular criteria for a 10 percent rating.  Therefore, the criteria for a rating in excess of 10 percent for bilateral hearing loss disability have not been met during the above appeal period.  38 C.F.R. § 4.85, Diagnostic Code 6100 (2017).

On and after June 8, 2017

At a June 2017, audiological evaluation, the Veteran reported that he has to ask people to repeat themselves when conversing.  The Veteran's audiometric testing results at that time were as follows:


500
1000
2000
3000
4000
Right
45
55
75
75
85
Left
50
60
65
80
85
 
Speech recognition ability was measured at 76 percent in the right ear and 84 percent in the left ear.  Applying those values to the rating criteria results in a numeric designation of Level VI in the right ear and Level VI in the left ear.  38 C.F.R. § 4.85, Table VIA (2017).  Application of the levels of hearing impairment in each ear to Table VII at 38 C.F.R. § 4.85 produces a 30 percent rating.

In addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in the final report.  Martinak, 21 Vet. App. 447.  The June 2017 VA examiner clearly identified the effects that the Veteran's bilateral hearing loss disability had on his daily activities, and social interactions.  Therefore, the Board finds that the June 2017 VA examination report are in compliance with the requirements.

There are no other audiogram reports of record showing the Veteran to have hearing impairment worse than the VA examination reported above.  

The results of the Veteran's bilateral hearing loss disability fall within the schedular criteria for a 30 percent rating during the above appeal period.  Therefore, the criteria for a rating in excess of 30 percent for bilateral hearing loss disability have not been met during the above appeal period.  38 C.F.R. § 4.85, Diagnostic Code 6100 (2017).

For the entire appeal period the Board has considered the Veteran's claim and decided entitlement based on the evidence or record.  The Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, with respect to his claims.  See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017).


ORDER

Entitlement to a compensable rating prior to March 7, 2017; to a rating in excess of 10 percent from March 7, 2017, to June 7, 2017; and to a rating in excess of 30 percent beginning June 8, 2017, for bilateral hearing loss disability is denied.




____________________________________________
Kristin Haddock
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs