Citation Nr: 1808291 Decision Date: 02/08/18 Archive Date: 02/20/18 DOCKET NO. 10-26 180 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Fort Harrison, Montana THE ISSUES 1. Entitlement to a compensable rating for bilateral hearing loss for the period from April 6, 2009 to October 10, 2017. 2. Entitlement to a disability rating in excess of 20 percent for bilateral hearing loss for the period from October 11, 2017. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD G. Jackson, Counsel INTRODUCTION The Veteran served on active duty from June 1966 to May 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision issued by RO. The Board remanded the claim in September 2017 for additional development. The development has been completed and the case has been returned to the Board for appellate consideration. In November 2017, the RO granted an increased 20 percent rating for the Veteran's bilateral hearing loss from October 11, 2017. As higher schedular ratings for the bilateral hearing loss are possible and the Veteran has not withdrawn the appeals, this claim remains before the Board on appeal. AB v. Brown, 6 Vet. App. 35 (1993). VA has provided all appropriate notification and assistance to the Veteran in the development of the claim. The Veteran was notified and aware of the evidence needed to substantiate his claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. He was an active participant in the claims process submitting evidence and argument and presenting for an appropriate medical inquiry. This appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing system. FINDINGS OF FACT 1. The October 2009 VA examination reflected Level V hearing for the right ear and Level V hearing for the left ear. 2. The November 2015 VA examination reflected Level V hearing for the right ear and Level V hearing for the left ear. 3. The October 2017 VA examination reflected Level V hearing for the right ear and Level V hearing for the left ear. CONCLUSIONS OF LAW 1. The criteria for the assignment of a 20 percent rating for the service-connected bilateral hearing loss have been approximated for the period from April 6, 2009 to October 10, 2017. 38 U.S.C. §§ 1155, 5103, 5103A, 5107, 7104 (2012); 38 C.F.R. §§ 3.159, 4.1, 4.7, 4.85 including Diagnostic Code 6100 (2017). 2. The criteria for a rating in excess of 20 percent for the service-connected bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107, 7104 (2012); 38 C.F.R. §§ 3.159, 4.1, 4.7, 4.85 including Diagnostic Code 6100 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Disability ratings are determined by application of the criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). The Court has held that "staged" ratings are appropriate for any rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12Vet. App 119 (1999). Here the bilateral hearing loss has not significantly changed and uniform evaluation is warranted. 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. See 38 C.F.R. § 4.7. Under the applicable criteria, ratings for hearing loss are determined in accordance with the findings obtained on audiometric examination. Ratings for hearing impairment range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests, 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 hearing impairment, the rating schedule establishes eleven auditory acuity levels designated from Level I for essentially normal acuity through Level XI for profound deafness. 38 C.F.R. § 4.85, Diagnostic Code 6100. Hearing tests will be conducted without hearing aids, and the results of above-described testing are charted on Table VI and Table VII. See 38 C.F.R. § 4.85. Exceptional patterns of hearing impairment are addressed 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 (Hz)) 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. 38 C.F.R. § 4.86(a). When the pure tone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 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(b). On October 2009 audiometric testing, the Veteran's pure tone thresholds, in decibels, were as follows: 1000 Hz 2000 Hz 3000 Hz 4000 Hz Right 50 60 75 75 Left 50 60 70 65 Speech audiometry revealed speech recognition ability of 52 percent in the right ear and 44 percent in the left ear at 40 decibels. Speech audiometry revealed speech recognition ability of 84 percent in the right ear and 84 percent in the left ear at 80 decibels. Table VIa "Numeric Designation of Hearing Impairment Based Only on Puretone Threshold Average will be used when use of the speech discrimination test is not appropriate because of inconsistent speech discrimination scores. See 38 C.F.R. § 4.85(c). Given the inconsistent speech discrimination scores at the different decibels as noted above, the Board uses Table VIa. Applying the numeric designation of hearing impairment based only on puretone threshold average to the findings of the October 2009 audiometric evaluation results in designation of Level V hearing in the right ear and Level V in the left ear based on application of the reported findings to Tables VIa and VII. These findings warrant a 20 percent rating under 38 C.F.R. § 4.85, DC 6100. On November 2015 audiometric testing, the Veteran's pure tone thresholds, in decibels, were as follows: 1000 Hz 2000 Hz 3000 Hz 4000 Hz Right 45 60 75 75 Left 45 60 70 75 Speech audiometry revealed speech recognition ability of 0 percent in the right ear and 0 percent in the left ear at 40 decibels. Speech audiometry revealed speech recognition ability of 92 percent in the right ear and 96 percent in the left ear at 70 decibels. Given the inconsistent speech discrimination scores at the different decibels as noted above, the Board uses Table VIa. Applying the numeric designation of hearing impairment based only on puretone threshold average to the findings of the November 2015 audiometric evaluation results in designation of Level V hearing in the right ear and Level V in the left ear based on application of the reported findings to Tables VIa and VII. These findings warrant a 20 percent rating under 38 C.F.R. § 4.85, DC 6100. On October 2017 audiometric testing, the Veteran's pure tone thresholds, in decibels, were as follows: 1000 Hz 2000 Hz 3000 Hz 4000 Hz Right 55 70 70 65 Left 55 70 70 65 Speech audiometry revealed speech recognition ability of 92 percent in the right ear and 92 percent in the left ear. When the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz (Hz)) 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. 38 C.F.R. § 4.86(a). Applying the numeric designation of hearing impairment based only on puretone threshold average to the findings of the October 2017 audiometric evaluation results in designation of Level V hearing in the right ear and Level V in the left ear based on application of the reported findings to Tables VIa and VII. These findings warrant a 20 percent rating under 38 C.F.R. § 4.85, DC 6100. When viewed in a light most favorable to the Veteran, a 20 percent rating is assigned for the period of the appeal from April 6, 2009 to October 10, 2017. However, a rating in excess of 20 percent is not warranted at any time. The assignment of disability ratings for hearing impairment is derived by a mechanical application of the rating schedule to the numeric designation assigned after audiometry results are obtained. Lendenmann v. Principi, 3 Vet. App. 345 (1992). The Board is bound by law to apply VA's rating schedule based on the Veteran's audiometry results. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. The Veteran's assertions as to the severity of his bilateral hearing loss are less probative than the objective audiology studies of record, prepared by skilled professionals, in determining that his bilateral hearing loss does not meet the criteria for a rating in excess of 20 percent. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Further, the examination reports documented above also consider the impact his hearing loss had on his ordinary conditions of life including his ability to work, namely that he had difficulty communicating in noisy environments; and had difficulty hearing his wife, children and other high frequency sounds. See Martinak v. Nicholson, 21 Vet. App. 447 (2007). The Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). ORDER A rating of 20 percent for bilateral hearing loss for the period from April 6, 2009 to October 10, 2017 is granted. A rating in excess of 20 percent for bilateral hearing loss is denied. ____________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs