Citation Nr: 1808077	
Decision Date: 02/08/18    Archive Date: 02/20/18

DOCKET NO.  13-21 533	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Jackson, Mississippi


THE ISSUE

Entitlement to a compensable evaluation for bilateral hearing loss.


REPRESENTATION

Appellant represented by:	The American Legion


WITNESSES AT HEARING ON APPEAL

Veteran and wife


ATTORNEY FOR THE BOARD

F. Yankey Counsel


INTRODUCTION

The Veteran served on active duty from June 1966 to June 1968.  

This case comes before the Board of Veterans' Appeals (Board) on appeal of an October 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi.

The Veteran testified before the undersigned at a July 2016 Video Conference hearing.  The hearing transcript is of record.  


FINDING OF FACT

For the entire period on appeal, the Veteran has had, at worst, Level III hearing loss in the right ear and Level I hearing loss in the left ear.


CONCLUSION OF LAW

For the entire period on appeal, the criteria for a compensable rating for bilateral hearing loss have not been met.  38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.85, 4.86(a), Diagnostic Code 6100 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

Duties to Notify and Assist

There is no indication in this record of a failure to notify.  See Scott v. McDonald, 789 F.3rd 1375 (Fed. Cir. 2015). 

Pursuant to the duty to assist, VA must obtain "records of relevant medical treatment or examination" at VA facilities.  38 U.S.C. § 5103A(c)(2).  All records pertaining to the condition at issue are presumptively relevant.  See Moore v. Shinseki, 555 F.3d 1369, 1374 (Fed. Cir. 2009); Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010).  In addition, where the veteran "sufficiently identifies" other VA medical records that he or she desires to be obtained, VA must also seek those records even if they do not appear potentially relevant based upon the available information.  Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016) (citing 38 C.F.R. § 3.159(c)(3) ).  In this case, the Veteran has indicated no such records, and all pertinent records have been obtained.  Furthermore, the Veteran was afforded the opportunity to submit additional evidence as well as testify at a Board hearing, which was held in July 2016.  Neither the information of record nor the contentions of the Veteran suggest that additional pertinent information or evidence can be obtained in this case through further assistance from VA.

Legal Criteria

Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2017).  The percentage ratings contained in the Rating Schedule represent, as far as can practicably be determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations.  38 U.S.C. § 1155; 38 C.F.R. § 4.1. 

Each disability must be considered from the point of view of the veteran working or seeking work.  38 C.F.R. § 4.2.  Where there is a question as to which of two evaluations shall 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.  38 C.F.R. § 4.7.

In both initial rating claims and normal increased rating claims, the Board must discuss whether any "staged ratings" are warranted, and if not, why not.  
Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 

Evaluations of defective hearing are based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination testing together with the average hearing threshold level as measured by pure tone audiometry tests in the frequencies 1,000, 2,000, 3,000 and 4,000 cycles per second.  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.

When the pure tone threshold at each of the four specified frequencies (1,000, 2,000, 3,000 and 4,000 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 will be evaluated separately.  When the pure tone threshold is 30 decibels or less at 1,000 hertz, and 70 decibels or more at 2,000 hertz, 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.  That numeral will then be elevated to the next higher Roman numeral.  Each ear will be evaluated separately.  38 C.F.R. 
§ 4.86 (2017).

Analysis

In a January 2005 rating decision, the RO granted service connection for bilateral hearing loss.  A noncomepnsable evaluation (0 percent) was assigned, effective July 16, 2003.

The Veteran's current claim for an increased rating was received in March 2011.

The Veteran was afforded a VA audiological examination in response to his claim in March 2011.  The following audiometric findings were reported:

Hertz (Hz):	1000	2000	3000	4000	Average
Right (db):	45	60	75	80	65
Left (db):	20	40	45	55	40

Speech audiometry results revealed speech recognition ability of 90 percent in the right ear and 96 percent in the left ear. 

These values do not meet the criteria of 38 C.F.R. § 4.86(a) or (b) for an exceptional pattern of hearing impairment.  Applying these values to the rating criteria results in a numeric designation of level III in the right ear and level I in the left ear.  See 38 C.F.R. § 4.85, Table VI (2017).  Application of the level of hearing impairment in each ear to Table VII at 38 C.F.R. § 4.85 produces a rating of 0 percent.

The Veteran was afforded a private VA audiological examination in April 2011.  The following audiometric findings were reported: 

Hertz (Hz):	1000	2000	3000	4000	Average
Right (db):	45	55	70	80	62.5
Left (db):	25	45	55	65	47.5

Speech audiometry results revealed speech recognition ability of 100 percent in the right ear and 96 percent in the left ear. 

These values do not meet the criteria of 38 C.F.R. § 4.86(a) or (b) for an exceptional pattern of hearing impairment.  Applying these values to the rating criteria results in a numeric designation of level II in the right ear and level I in the left ear.  See 38 C.F.R. § 4.85, Table VI (2017).  Application of the level of hearing impairment in each ear to Table VII at 38 C.F.R. § 4.85 produces a rating of 0 percent.

Treatment records from the Jackson VA Medical Center include a hearing aid fitting in April 2014 and cerumen removal in October 2014.  A June 2014 audiogram reveals decibel loss of 30 at 1000 hertz for the right and left ears; at 2000 hertz decibel loss was 30 for the right ear and 35 for the left ear; at 3000 hertz decibel loss was 45 for the right ear and 40 for the left ear; and at 4000 hertz decibel loss was 65 for the right ear and 70 for the left ear.  No speech discrimination scores were reported, but these findings by themselves, do not suggest a level of hearing impairment consistent with a compensable rating.

The Veteran was afforded his most recent VA examination in September 2015.  The following audiometric findings were reported:

Hertz (Hz):	1000	2000	3000	4000	Average
Right (db):	30	50	55	75	52.5
Left (db):	25	40	50	65	45

Speech audiometry results revealed speech recognition ability of 94 percent in the right and left ears.

These values do not meet the criteria of 38 C.F.R. § 4.86(a) or (b) for an exceptional pattern of hearing impairment.  Applying these values to the rating criteria results in a numeric designation of level I in the right ear and level I in the left ear.  See 38 C.F.R. § 4.85, Table VI (2017).  Application of the level of hearing impairment in each ear to Table VII at 38 C.F.R. § 4.85 produces a rating of 0 percent.

Accordingly, the Board finds that the Veteran's hearing loss disability does not currently meet or approximate the criteria for a schedular compensable rating at any time during the appeal period.  Furthermore, based on the analysis of the evidence above, a staged rating is not warranted at any time during the appeal.

Extraschedular Considerations

With regard to an extraschedular evaluation under 38 C.F.R. § 3.321(b)(1), the Board has carefully compared the level of severity and symptomatology of the Veteran's service-connected bilateral hearing loss with the established criteria found in the rating schedule.  With regard to functional impairment, including the Veteran's reports of difficulty understanding speech in noise, when in a group of people and when the speaker is not facing him, his speech discrimination abilities have been specifically measured by VA audiological examinations and this functional impairment has thus been taken into account as part of the currently assigned evaluation.  See Martinak v. Nicholson, 21 Vet. App. at 455 (2007).  Specifically, such criteria contemplate the difficulty the Veteran has hearing in all situations.  In this regard, the rating schedule takes into account both the average decibel loss as well as speech discrimination scores for hearing loss and contemplates that hearing loss may be so profound as to result in scores above the numbers on the charts and beyond the range of audiometers (as indicated by the "+" signs in Tables VI and VIA, as well as the provisions of 38 C.F.R. § 4.86(a) (2017)).  In the present case, the provisions of 38 C.F.R. § 4.86 for exceptional patterns of hearing impairment are not applicable.  Accordingly, the Board determines that the Veteran's complaints of hearing difficulty have been considered under the numerical criteria set forth in the rating schedule.  The available schedular evaluations are adequate, as described above.  Therefore, referral for consideration of an extraschedular evaluation is not warranted.  Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009).


ORDER

A compensable evaluation for bilateral hearing loss is denied.



____________________________________________
BARBARA B. COPELAND
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs