Citation Nr: 1808411	
Decision Date: 02/09/18    Archive Date: 02/20/18

DOCKET NO.  14-09 647	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Denver, Colorado


THE ISSUE

Entitlement to a compensable rating for bilateral hearing loss.


REPRESENTATION

Appellant represented by:	Colorado Division of Veterans Affairs


ATTORNEY FOR THE BOARD

G. Lilly, Associate Counsel


INTRODUCTION

The Veteran served on active duty from September 1966 to September 1969.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado.  


FINDING OF FACT

The Veteran's hearing loss was manifested by no worse than level V hearing in the right ear and level II hearing in the left ear.  


CONCLUSION OF LAW

The criteria for a compensable rating for bilateral hearing loss have not been met.  38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100 (2017).  


REASONS AND BASES FOR FINDINGS AND CONCLUSION

VA's Duties to Notify and Assist

The Veteran's Claims Assistance Act (VCAA) describes the VA's duties to notify and assist claimants in substantiating a claim for VA benefits.  See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F. 3d 1328 (Fed. Cir. 2006); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017).  

The Board finds that the VA's duty to notify has been satisfied.  In a claim for an increased evaluation, the VCAA requires generic notice, that is, the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned.  Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009) (VCAA notice in a claim for increased rating need not be "veteran specific").

In the present case, in a July 2012 letter issued prior to the January 2013 decision on appeal, the Veteran was advised with respect to his claim for a higher rating for his bilateral hearing loss that the evidence must show that his service-connected disabilities have gotten worse.  The letter further advised the Veteran of how effective dates are assigned, and the type of evidence that impacts those determinations. Thus, the Board finds that the Veteran was provided with adequate notice.  

The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim.  38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c), (d).  This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim.  38 C.F.R. § 3.159(c)(4).

In this case, VA fulfilled its duty to assist by obtaining all identified and available evidence needed to substantiate the claim.  VA has obtained records of the Veteran's VA audiological examinations and private audiology consults, as well as his service treatment records.  Lay statements of the Veteran have also been associated with the record and have been reviewed.  The Veteran last underwent a VA audiological examination in March 2017.  He has not indicated that his symptoms have materially worsened since that time.

For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements.  There is no additional evidence which needs to be obtained.  The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran.




Increased Rating for Bilateral Hearing Loss

The Veteran contends that his bilateral hearing loss disability is more severe than what is reflected by his current, noncompensable evaluation.

Disability ratings are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule).  38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10.

If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned.  38 C.F.R. § 4.7.  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).

"Staged" ratings may 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).

Evaluations of bilateral defective hearing 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 measured by puretone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hertz).  To evaluate the degree of disability for bilateral service-connected defective hearing, the schedule establishes 11 auditory hearing acuity levels designated from Level I (for essentially normal hearing acuity) through Level XI (for profound deafness).  38 C.F.R. § 4.85, Tables VI and VII, DC 6100.  Disability ratings for hearing loss are derived from a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing.  See Lendenmann v. Principi, 3 Vet. App. 345 (1992).  The evaluations 


derived from the schedule are intended to make allowance for improvement by hearing aids.  38 C.F.R. § 4.85, DC 6100.

Exceptional patterns of hearing impairment are to be evaluated in accordance with the provisions of 38 C.F.R. § 4.86.  That regulation states:

(a) When the puretone 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 will be evaluated separately.

(b) When the puretone 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.

An examination for hearing impairment for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a puretone audiometry test.  38 C.F.R. § 4.85(a).

The Veteran filed the instant claim for an increased rating in May 2012.  
The Veteran was afforded VA audiological examinations in September 2012, September 2014, and March 2017. 


During the September 2012 VA audiological evaluation, an audiogram showed puretone thresholds, in decibels, as follows: 





HERTZ



500
1000
2000
3000
4000
RIGHT
50
45
25
60
95
LEFT
10
15
35
65
85

See September 2012, VA Hearing Loss and Tinnitus Disability Benefits Questionnaire, in Legacy Content Manager entered on September 19, 2012.  

The puretone threshold average was 55 decibels in the right ear and 50 decibels in the left ear.  The Maryland CNC word list speech discrimination test measured 72 percent in the right ear and 96 percent in the left ear.

Applying Table VI of the rating schedule, the results of the September 2012 audiogram revealed that the Veteran had Level V hearing in the right ear and Level I hearing in the left ear.  Based on Table VII, these results correspond to a noncompensable rating.  See 38 C.F.R. § 4.85.

The Veteran underwent a second VA audiological examination in September 2014.  The audiogram indicated pure tone thresholds, in decibels, as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
20
15
25
60
100
LEFT
15
15
40
65
85

The puretone threshold average was 50 decibels in the right ear and 51 decibels in the left ear.  The Maryland CNC word list speech discrimination test measured 96 percent in the right ear and 96 percent in the left ear.

Applying Table VI of the rating schedule, the results of the September 2014 audiogram reflects a finding of Level I hearing in the right ear and Level I hearing in the left ear.  Based on Table VII, these results warrant a noncompensable rating.  See 38 C.F.R. § 4.85.

The Veteran was afforded a VA audiological examination in March 2017.  Audiological testing revealed pure tone thresholds, in decibels, as follows:





HERTZ



500
1000
2000
3000
4000
RIGHT
15
30
40
70
100
LEFT
15
20
40
65
85

The puretone threshold average was 60 decibels in the right ear and 53 decibels in the left ear.  The Maryland CNC word list speech discrimination test, measured 76 percent in the right ear and 90 percent in the left ear.

Applying Table VI of the rating schedule, the results of the March 2017 audiogram revealed that the Veteran had Level IV hearing in the right ear and Level II hearing in the left ear.  Based on Table VII, these results correspond to a noncompensable rating.

Upon review, the audiological examinations of record indicate findings corresponding to no higher than a noncompensable rating.  There is no additional competent evidence in the record that would suggest that the Veteran's hearing loss is severe enough to warrant a higher rating.  The Board has no reason to doubt the validity of the VA audiometric testing in this case.

Moreover, none of the VA examinations demonstrate an exceptional pattern of hearing impairment, as the Veteran did not have pure tone thresholds of 55 decibels or more at each of the frequencies of 1000, 2000, 3000, and 4000 Hertz, or a pure tone threshold of 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz.  38 C.F.R. § 4.86(a), (b).  Additionally, there is no examiner certification that the use of speech discrimination testing was not appropriate due to factors such as language difficulties, inconsistent scores, etc.  As such, there is no basis to alternatively rate this claim under Table VIA.  See 38 C.F.R. § 4.85(c).

The Veteran's subjective reports of hearing impairment have been considered.  See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994).  However, a review of his lay statements gives no indication of specific symptoms or a particular degree of impairment that would justify a compensable rating.  Moreover, the Board is bound to apply the VA rating schedule, where the assignment of disability ratings for hearing impairment is derived from a mechanical formula.  Thus, while laypersons are competent to report general symptoms such as hearing loss, the specific audiological findings from the audiological examination from February 2010 is more probative of the severity of the Veteran's hearing loss disability for VA purposes.  See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (2007). 

In sum, the application of the rating schedule to the numeric designations assigned based on the VA audiological examination reports demonstrate that the appropriate rating for the Veteran's bilateral hearing loss disability is noncompensable, throughout the appeal period.  The Veteran has not met the criteria for a compensable rating during any discrete period involved in this appeal.


ORDER

Entitlement to a compensable rating for bilateral hearing loss is denied.






____________________________________________
YVETTE R. WHITE
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs