Citation Nr: 1807770	
Decision Date: 02/06/18    Archive Date: 02/14/18

DOCKET NO.  10-13 787A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in New Orleans, Louisiana


THE ISSUE

Entitlement to a compensable evaluation prior to September 12, 2017, and in excess of 10 percent disabling therefrom, for bilateral hearing loss.  


REPRESENTATION

Veteran represented by:	The American Legion


ATTORNEY FOR THE BOARD

S. Kalolwala, Associate Counsel






INTRODUCTION

The Veteran served on active duty from September 1992 to June 1997.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas.  Jurisdiction over the Veteran's claim was subsequently transferred to the RO in New Orleans, Louisiana.

This matter was remanded by the Board in March 2015 and again in April 2017 for additional development.  The matter has since been returned to the Board for appellate consideration.  

A September 2017 rating decision granted an increased 10 percent disability rating for the Veteran's service-connected bilateral hearing loss.  As this is not the maximum disability rating possible, the appeal remains in appellate status and is properly before the Board.  AB v. Brown, 6 Vet. App. 35 (1993).


FINDINGS OF FACT

1.  Prior to September 12, 2017, the Veteran's bilateral hearing loss is manifested by hearing impairment corresponding to no higher than an auditory acuity of Level IV in the right ear and Level II in the left ear.

2.  As of September 12, 2017, the Veteran's bilateral hearing loss is manifested by hearing impairment corresponding to no higher than an auditory acuity of Level IV in the right ear and Level IV in the left ear.






CONCLUSIONS OF LAW

1.  Prior to September 12, 2017, the criteria for a compensable rating for bilateral hearing loss have not been met.  38 U.S.C. §§ 1155, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.21, 4.85, Diagnostic Code (DC) 6100 (2017).

2.  As of September 12, 2017, the criteria for a rating in excess of 10 percent disabling for bilateral hearing loss have not been met.  38 U.S.C. §§ 1155, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.21, 4.85, DC 6100 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Duty to Notify and Assist

VA's duty to notify was satisfied by letters dated in August 2008, January 2009, April 2017, and June 2017.  See 38 U.S.C. § 5103 (2012); 38 C.F.R. § 3.159 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).  

The duty to assist the Veteran has also been satisfied in this case.  

In that regard, the Board notes that this case was most recently remanded in April 2017.  Pursuant to the Board's remand, the Agency of Original Jurisdiction (AOJ) obtained the outstanding medical records, requested the Veteran identify any records and/or treatment received at non-VA medical facilities that are relevant to his claim, provided the Veteran with a new VA examination, and issued a supplemental statement of the case (SSOC).  Based on the foregoing actions, the Board finds that there has been substantial compliance with the Board's remand.  Stegall v. West, 11 Vet. App. 268 (1998) (finding that a remand by the Board confers on the appellant the right to compliance with the remand orders).  The matter has been returned to the Board for appellate consideration.  

Accordingly, the Board finds that no prejudice to the Veteran will result from the adjudication of his claim in this Board decision.  

II. Increased Rating

	Legal Principles

A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4.  The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred in or aggravated during military service and their residual conditions in civil occupations.  38 U.S.C. § 1155.

The Veteran's entire history is reviewed when making disability evaluations.  See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995).  Where, as here, entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern.  See Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  When adjudicating an increased rating claim, the relevant time period for consideration is the time period one year before the claim was filed.  Hart v. Mansfield, 21 Vet. App. 505, 509 (2007).  This is because the effective date of increased compensation shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year of such date.  38 U.S.C. § 5110(b) (2).

Disability ratings for service-connected hearing impairments are determined through a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are made.  Bruce v. West, 11 Vet. App. 405 (1998); Lendenmann v. Principi, 3 Vet. App. 345 (1992).  The regulations set forth eleven auditory acuity levels, designated from Roman numerals I to XI, in escalating order of hearing impairment.  See 38 C.F.R. § 4.85.  The appropriate auditory level is identified as the point where the percentage of speech discrimination and puretone threshold average intersect.  Id.  The regulations also provide that in cases of exceptional hearing loss, i.e., when the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz (Hz)) is 55 decibels (dB) or more, the Roman numeral designation will be determined from either Table VI or Table VIA, whichever results in the higher numeral.  38 C.F.R. § 4.86(a).  Likewise, a Roman numeral designation will be determined from either Table VI or Table VIA, whichever results in the higher numeral, when the puretone threshold is 30 dB or less at 1000 Hz, and 70 dB or more at 2000 Hz.  That numeral will then be elevated to the next higher Roman numeral.  38 C.F.R. § 4.86(b).

For speech recognition scores to be valid for VA disability rating purposes, an examiner must utilize the Maryland CNC word list in performing the examination.  38 C.F.R. § 4.85 (a).  

	Discussion

Upon review of the evidence of record, the Board finds that a compensable rating for the Veteran's service-connected bilateral hearing loss prior to September 12, 2017, is not warranted.

The relevant medical evidence of record consists of the Veteran's post-service treatment records, including reports of VA audiological examinations conducted in September 2008, February 2009, September 2010, and September 2017, respectively, as well as lay statements by the Veteran and other sources.

Post-service treatment records spanning between September 2008 and September 2017 reflect ongoing complaints of and treatment for bilateral hearing loss.  

On the authorized audiological evaluation in September 2008, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
0
40
40
50
40
LEFT
10
45
45
45
45

Speech audiometry revealed speech recognition ability of 84 percent in the right ear and of 86 in the left ear, using the Maryland CNC Test.  Considering that the Veteran's right ear manifest an average puretone threshold of 42.5, with 84 percent speech discrimination, reference to 38 C.F.R. § 4.85, Table VI, shows his right ear hearing loss to be Level II impairment.  Considering that the Veteran's left ear manifest an average puretone threshold of 45, with 86 percent speech discrimination, reference to 38 C.F.R. § 4.85, Table VI, shows his left ear hearing loss to be Level II impairment.

On the authorized audiological evaluation in February 2009, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
5
45
60
60
45
LEFT
10
50
60
55
45

Speech audiometry revealed speech recognition ability of 80 percent in the right ear and of 92 in the left ear, using the Maryland CNC Test.  Considering that the Veteran's right ear manifest an average puretone threshold of 52.5, with 80 percent speech discrimination, reference to 38 C.F.R. § 4.85, Table VI, shows his right ear hearing loss to be Level IV impairment.  Considering that the Veteran's left ear manifest an average puretone threshold of 52.5, with 92 percent speech discrimination, reference to 38 C.F.R. § 4.85, Table VI, shows his left ear hearing loss to be Level I impairment.

On the authorized audiological evaluation in September 2010, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
20
40
50
55
45
LEFT
15
50
50
50
60

Speech audiometry revealed speech recognition ability of 92 percent in the right ear and of 84 in the left ear, using the Maryland CNC Test.  Considering that the Veteran's right ear manifest an average puretone threshold of 47.5, with 92 percent speech discrimination, reference to 38 C.F.R. § 4.85, Table VI, shows his right ear hearing loss to be Level I impairment.  Considering that the Veteran's left ear manifest an average puretone threshold of 52.5, with 84 percent speech discrimination, reference to 38 C.F.R. § 4.85, Table VI, shows his left ear hearing loss to be Level II impairment.

On the authorized audiological evaluation in January 2014, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
15
50
60
55
45
LEFT
15
50
55
50
55

Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 92 in the left ear, using the Maryland CNC Test.  Considering that the Veteran's right ear manifest an average puretone threshold of 52.5, with 96 percent speech discrimination, reference to 38 C.F.R. § 4.85, Table VI, shows his right ear hearing loss to be Level I impairment.  Considering that the Veteran's left ear manifest an average puretone threshold of 52.5, with 92 percent speech discrimination, reference to 38 C.F.R. § 4.85, Table VI, shows his left ear hearing loss to be Level I impairment.

Applying the clinical findings of the September 2008, February 2009, September 2010, and January 2014 VA audiological examinations, separately, to Table VII, respectively, a noncompensable evaluation is assigned.  Specifically, the point where the Roman numeral designations for each ear (at each examination) intersect indicates a zero percent evaluation.

The Board has considered the various lay statements from the Veteran and other sources attesting to the impact of the Veteran's hearing loss, e.g., difficulty understanding speech.  However, the Veteran, while competent to report symptoms associated with hearing loss, is not competent to report that his hearing acuity is of sufficient severity to warrant a higher evaluation under DC 6100 because such an opinion requires medical expertise, i.e., training in evaluating hearing impairment, which he has not shown to have.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Charles v. Principi, 16 Vet. App. 370 (2002).  As such, the Board finds the medical evidence of record to be more probative.

The Board is sympathetic to the Veteran's position that a compensable rating prior to September 12, 2017, is warranted for his service-connected bilateral hearing loss.  However, the audiometric examination results, as compared to the rating criteria, do not warrant a compensable rating prior to September 12, 2017.  Accordingly, the Board finds that the preponderance of the evidence is against the claim for a compensable schedular rating for bilateral hearing loss prior to September 12, 2017; and therefore, the claim must be denied.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  

In addition, the Board notes that in accordance with Fenderson, supra, staged ratings have been considered, but because there is no objective evidence that the Veteran's disability was more disabling than warranted by the noncompensable rating assigned at any point prior to September 12, 2017, a staged rating is not warranted.  

Next, the Board turns to whether a rating in excess of 10 percent at any point since September 12, 2017, is warranted.  Upon review of the evidence of record, the Board finds that a rating in excess of 10 percent for the Veteran's service-connected bilateral hearing loss since September 12, 2017, is not warranted.  

On the authorized audiological evaluation in September 2017, pure tone thresholds, in decibels, were as follows:





HERTZ



500
1000
2000
3000
4000
RIGHT
10
50
65
60
50
LEFT
10
50
65
55
55

Speech audiometry revealed speech recognition ability of 76 percent in the right ear and of 76 in the left ear, using the Maryland CNC Test.  Considering that the Veteran's right ear manifest an average puretone threshold of 56.25, with 76 percent speech discrimination, reference to 38 C.F.R. § 4.85, Table VI, shows his right ear hearing loss to be Level IV impairment.  Considering that the Veteran's left ear manifest an average puretone threshold of 56.25, with 76 percent speech discrimination, reference to 38 C.F.R. § 4.85, Table VI, shows his left ear hearing loss to be Level IV impairment.

Applying the clinical findings of the September 2017 VA audiological examination to Table VII, i.e., Roman numeral IV in the right ear and Roman numeral IV in the left ear, a 10 percent evaluation is assigned.  Specifically, the point where the Roman numeral designations for each ear intersect indicates a 10 percent evaluation.

The Board has considered the various lay statements from the Veteran and other sources attesting to the impact of his hearing loss, i.e., difficulty understanding speech.  However, for the reasons previously mentioned, the Veteran is not competent to report that his hearing acuity is of sufficient severity to warrant a higher evaluation under DC 6100.  As such, the Board finds the medical evidence of record to be more probative.

Again, the Board is sympathetic to the Veteran's position that a rating in excess of 10 percent disabling for the period since September 12, 2017, is warranted for his service-connected bilateral hearing loss.  However, the audiometric examination results, as compared to the rating criteria, do not warrant such a rating during the appeal period.  Accordingly, the Board finds that the preponderance of the evidence is against the claim for a rating in excess of a 10 percent schedular rating for bilateral hearing loss; and therefore, the claim must be denied.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  


ORDER

Entitlement to a compensable rating prior to September 12, 2017, for bilateral hearing loss is denied.

Entitlement to a rating in excess of 10 percent disabling as of September 12, 2017, for bilateral hearing loss is denied.



____________________________________________
Thomas H. O'Shay
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs