Citation Nr: 1807771	
Decision Date: 02/06/18    Archive Date: 02/14/18

DOCKET NO.  14-28 623	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Louisville, Kentucky


THE ISSUE

Entitlement to an initial compensable rating  since April 17, 2013, for bilateral hearing loss.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

S. Anwar, Associate Counsel


INTRODUCTION

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  38 U.S.C. § 7107(a)(2) (West 2014).

The Veteran had active service from April 1961 to April 1965.

This matter comes before the Board of Veterans' Appeals (Board) from a February 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky.

In an April 2015 rating decision, the RO granted the Veteran's claim of service connection for tinnitus. This issue is no longer in appeal status.

The case was remanded in July 2017 for evidentiary development. All actions ordered by the remand have been accomplished. 

Pursuant to VA's duties to notify and assist the Veteran, VA advised the claimant how to substantiate an application for benefits, obtained all relevant and available evidence, and conducted any appropriate medical inquiry. The appeal is ready for appellate review. This appeal was processed using the Virtual VA and Veterans Benefits Management System (VBMS) paperless claims processing system. 


FINDING OF FACT

Since April 17, 2013, the Veteran's bilateral hearing loss manifested with 40 to 49 average pure tone decibel hearing loss and 90 to 96 percent speech discrimination for the right ear; and 35 to 48 average pure tone decibel hearing loss and 84 to 90 percent speech discrimination for the left ear.


CONCLUSION OF LAW

The criteria for a compensable rating for bilateral hearing loss since April 17, 2013, have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.321, 4.85, 4.86, 4.87a, Diagnostic Code 6100 (2016).  



REASONS AND BASES FOR FINDING AND CONCLUSION

Disability ratings are determined by applying criteria set forth in VA's Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations should be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7.

For claims for increased ratings which arise out of an initial grant of service connection, the Board must consider the application of "staged" ratings for different periods from the filing of the claim forward, if the evidence suggests that such a rating would be appropriate. See Fenderson v. West, 12 Vet. App. 119 (1999).

The Rating Schedule provides rating tables for the evaluation of hearing impairment. Table VI assigns a Roman numeral designation (I through XI) for hearing impairment based on the pure tone threshold average and controlled speech discrimination (Maryland CNC) testing. Table VIa assigns a Roman numeral designation for hearing impairment based only on the pure tone threshold average, and is used when speech discrimination testing is not appropriate or when indicated under the provisions of 38 C.F.R. § 4.86, which relate to exceptional patterns of hearing impairment. The "pure tone threshold average" is the sum of the pure tone thresholds at 1000, 2000, 3000, and 4000 Hertz, divided by four. 38 C.F.R. § 4.85 (d). Table VII is used to determine the rating assigned by combining the Roman numeral designations for hearing impairment of each ear. 38 C.F.R. § 4.85 (e). 

Exceptional patterns of hearing impairment are provided for in 38 C.F.R. § 4.86. When the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. Each ear is evaluated separately. 38 C.F.R. § 4.86 (a). 

Ratings for hearing impairment are derived by the mechanical application of the Rating Schedule to the numeric designations assigned after audiometric evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345 (1992). However, in addition to providing objective test results, a VA audiological examination report must address the functional effects caused by a hearing disability because an extraschedular rating under 38 C.F.R. § 3.321 (b) "does not rely exclusively on objective test results to determine whether a referral for an extraschedular rating is warranted." Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). VA's policy requiring VA audiologists to describe the effect of a hearing disability on occupational functioning and daily activities facilitates extraschedular determinations. Id. 

The Veteran underwent three audiological evaluations during the appellate period. 

At the April 2013 audiological evaluation, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
20
20
30
55
55
LEFT
10
20
20
55
60

Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 84 percent in the left ear using the Maryland CNC speech discrimination test. The average pure tone thresholds of 1000, 2000, 3000, and 4000 Hz, rounded to the nearest whole number, were 40 for the right ear and 39 for the left ear. The examiner assessed the Veteran with sloping mild to moderately severe mixed hearing loss at the upper frequencies. The Veteran was referred for hearing aids. 




At the February 2014 audiological evaluation, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
20
15
25
60
60
LEFT
10
15
10
55
60

Speech audiometry revealed speech recognition ability of 90 percent in the right ear and of 90 percent in the left ear using the Maryland CNC speech discrimination test. The average pure tone thresholds of 1000, 2000, 3000, and 4000 Hz, rounded to the nearest whole number, were 40 for the right ear and 35 for the left ear. He was assessed with sensorineural hearing loss in both ears. The examiner noted the functional effects of the Veteran's hearing loss included a gradual decrease in hearing and trouble with high pitch sounds and voices.

At the August 2014 audiological evaluation, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
25
30
45
55
65
LEFT
30
30
35
60
65

While the audiogram was represented in graphical form, the Board, as the finder of fact, may interpret a graphical audiogram. See Kelly v. Brown, 7 Vet. App. 471 (1995). Speech audiometry revealed speech recognition ability of 90 percent in the right ear and of 90 percent in the left ear using the Maryland CNC speech discrimination test. The average pure tone thresholds of 1000, 2000, 3000, and 4000 Hz, rounded to the nearest whole number, were 49 in the right ear and 48 in the left ear. The examiner assessed the Veteran with mild to moderate sensorineural hearing loss, noting a dramatic drop at the high frequencies in both ears. The examiner did not note the functional effects of the Veteran's hearing loss.

The evidence does not support a finding of "exceptional" hearing loss in the current case. Specifically, the defined regulatory "exceptional" patterns (pure tone threshold at 1000, 2000, 3000, and 4000 Hertz is 55 decibels or more, or when the pure tone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz) are not found in this case.  See 38 C.F.R. § 4.86. 

As "exceptional" hearing loss does not exist, it is necessary to apply the criteria found in 38 C.F.R. 4.87 at Table VI to the Veteran's audiological examinations of record. With regards to the April 2013 examination, the results yield a numerical designation of I for the right ear (between 0 and 41 average pure tone decibel hearing loss, with between 92 and 100 percent speech discrimination), and a numerical designation of II for the left ear (between 0 and 41 average pure tone decibel hearing loss, with between 84 and 90 percent speech discrimination). Entering the category designations for each ear into Table VII results in a noncompensable disability evaluation.

With regards to the February 2014 examination, the results yield a numerical designation of II for both the right and left ears (between 0 and 41 average pure tone decibel hearing loss, with between 84 and 90 percent speech discrimination). Entering the category designations for each ear into Table VII results in a noncompensable disability evaluation.

With regards to the August 2014 examination, the results yield a numerical designation of II for both the right and left ears (between 42 and 49 average pure tone decibel hearing loss, with between 84 and 90 percent speech discrimination). Entering the category designations for each ear into Table VII results in a noncompensable disability evaluation.

The preponderance of the evidence is against finding a compensable rating for the Veteran's bilateral hearing loss since April 17, 2013. The results of the Veteran's three audiological examinations are probative and valid for rating purposes, and reflect the severity of the Veteran's bilateral hearing loss at the time. 

The Veteran is competent to describe the effects of his hearing loss on his daily functioning, such as having difficulty understanding other people with background noise present. However, disability ratings are derived by a mechanical application of the rating schedule. Lendenmann, 3 Vet. App. at 349. Thus, the Board has no discretion in this matter and must predicate its determination on the basis of the results of the audiological examinations of record. Mechanical application of the Rating Schedule to the audiometric findings establishes a noncompensable rating since April 17, 2013.

The Veteran's claim for a compensable rating for his bilateral hearing loss since April 17, 2013, is denied. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R.       § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). 


ORDER

An initial compensable rating for bilateral hearing loss since April 17, 2013, is denied.




____________________________________________
Vito A. Clementi
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs