Citation Nr: 1808584	
Decision Date: 02/09/18    Archive Date: 02/20/18

DOCKET NO.  17-43 707	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUE

Entitlement to an initial compensable evaluation for bilateral hearing loss.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

R. Kipper, Associate Counsel


INTRODUCTION

The Veteran served on active duty from February 1953 to January 1955.  

This matter comes before the Board of Veterans Appeals (Board) on appeal from an October 2016 rating decision by the Appeals Management Center (AMC), which granted entitlement to service connection for bilateral hearing loss and assigned a noncompensable rating.  The Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida currently has jurisdiction of this matter. 

The Veteran originally requested a Board hearing in his July 2017 Substantive Appeal.  However, in a November 2017 signed correspondence, the Veteran requested that his hearing request be withdrawn.  The Veteran has not requested an additional hearing.  As such, the Board considers his hearing request withdrawn.  38 C.F.R. § 20.704 (2017).

In January 2016, the Board remanded the Veteran's claim of entitlement to service connection for a psychiatric disorder for further development.  A review of the claims file reveals that the AOJ is still actively developing that claim.  Accordingly, that issue is not currently before the Board.

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) (2012).


FINDINGS OF FACT

1.  Prior to May 29, 2014, the Veteran's hearing loss manifested as no worse than Level II impairment in the right ear and Level I impairment in the left ear.

2.  From May 29, 2014 to October 26, 2017, the Veteran's hearing loss manifested as no worse than Level V impairment in the right ear and Level VIII impairment in the left ear.

3.  On and after October 27, 2017, an exceptional pattern of hearing loss is found in both ears; this manifested as no worse than Level VII impairment in the right ear and Level VII impairment in the left ear.


CONCLUSIONS OF LAW

1.  Prior to May 29, 2014, the criteria for an initial compensable rating for bilateral hearing loss were not met.  38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.321(b), 4.85, 4.86, Diagnostic Code 6100 (2017).  

2.  From May 29, 2014 to October 26, 2017, the criteria for a disability rating of 30 percent, but no higher, for bilateral hearing loss were met.  38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.321(b), 4.85, 4.86, Diagnostic Code 6100 (2017).  

3.  Since October 27, 2017, the criteria for a disability rating of 40 percent, but no higher, for bilateral hearing loss have been met.  38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.321(b), 4.85, 4.86, Diagnostic Code 6100 (2017).  


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Duties to Notify and Assist

Under applicable law, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017).

In the present case, VA's duty to notify was satisfied by way of a July 2011 letter to the Veteran.

VA also has a duty to assist the Veteran in the development of the claim.  This duty includes assisting the Veteran in the procurement of service treatment records (STRs) and pertinent treatment records and providing an examination when necessary.  38 U.S.C. § 5103A; 38 C.F.R. § 3.159.

The record reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran.  The Veteran has not identified any outstanding evidence, to include any other medical records, which could be obtained to substantiate his appeal.  

In light of the foregoing, the Board finds that there is no further action to be undertaken to comply with the provisions of 38 U.S.C. § 5103(a), § 5103A, or 38 C.F.R. § 3.159, and that all necessary development has been accomplished.  Therefore, appellate review may proceed without prejudice to the Veteran.  See Bernard v. Brown, 4 Vet. App. 384 (1993).

II. Increased Rating

The Veteran contends that his bilateral hearing loss disability is more severe than reflected in his current disability rating.  

A. Legal Criteria

Disability ratings are determined by the application of the VA's Schedule for Rating Disabilities.  Separate diagnostic codes identify the various disabilities.  38 U.S.C. § 1155; 38 C.F.R. § Part 4.  Ratings for service-connected disabilities are determined by comparing the Veteran's symptoms with criteria listed in VA's Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity.  Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating is to be assigned.  38 C.F.R. § 4.7. 

In evaluating the extent of hearing loss, disability ratings are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are performed.  Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992).  Hearing loss ratings range from noncompensable to 100 percent based on organic impairment of hearing acuity, as measured by controlled speech discrimination tests in conjunction with average hearing thresholds determined by puretone audiometric testing at frequencies of 1000, 2000, 3000 and 4000 cycles per second.  "Puretone threshold average" is the sum of the puretone thresholds at 1000, 2000, 3000 and 4000 Hertz divided by four.  This average is used in all cases (including those in §4.86) to determine the Roman numeral designation for hearing impairment from Table VI or VIa.  38 C.F.R. § 4.85, Diagnostic Code 6100.

The rating schedule establishes eleven auditory acuity levels, designated from Level I for essentially normal hearing acuity, through Level XI for profound deafness.  38 C.F.R. § 4.85.  The horizontal rows in Table VI (in 38 C.F.R. § 4.85) represent nine categories of the percentage of discrimination based on the controlled speech discrimination test.  The vertical columns in Table VI represent nine categories of decibel loss based on the puretone audiometry test.  The Roman numeral designation is located at the point where the percentage of speech discrimination and puretone threshold average intersect.  See 38 C.F.R. §§ 4.85, 4.86.

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 ) is 55 decibels or more, the Roman numeral designation will be determined for hearing impairment, separately, from either Table VI or Table VIa, whichever results in the higher numeral.  38 C.F.R. § 4.86.  A Roman numeral designation will also be determined from either Table VI or Table VIa, whichever results in the higher numeral, when the puretone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz.  That numeral will then be elevated to the next higher Roman numeral.

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, the question for consideration is the propriety of the initial evaluation assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of "staged rating" is required.  Fenderson v. West, 12 Vet. App. 119, 126 (1999).

After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran.  38 C.F.R. § 4.3.

B. Facts and Analysis

The Veteran underwent a VA examination in September 2011.  The Veteran reported difficulty hearing when two or more people are speaking.  He also reported difficulty hearing the phone or doorbell.  The resulting examination report shows puretone thresholds, in decibels, as follows:

HERTZ

500
1000
2000
3000
4000
RIGHT
30
35
50
70
90
LEFT
25
25
35
80
90

The puretone threshold average was 61 decibels in the right ear and 58 decibels in the left ear.  The Maryland CNC speech discrimination test revealed speech recognition ability of 92 percent in the right ear and 88 percent in the left ear.  The above audiological findings translate to a Level II hearing acuity for the right ear, and a Level III hearing acuity for the left ear under Table VI.  Applying these results to Table VII, a noncompensable disability rating is warranted.  An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown.

The Veteran underwent a private examination by a state licensed audiologist on May 29, 2014.  The resulting examination report shows puretone thresholds, in decibels, as follows:

HERTZ

500
1000
2000
3000
4000
RIGHT
35
30
45
70
85
LEFT
30
25
45
80
85

The puretone threshold average was 57.5 decibels in the right ear and 66.25 decibels in the left ear.  The Maryland CNC speech discrimination test revealed speech recognition ability of 72 percent in the right ear and 56 percent in the left ear.  The above audiological findings translate to a Level V hearing acuity for the right ear and a level VIII hearing acuity in the left ear under Table VI.  Applying these results to Table VII, a 30 percent disability rating is warranted.  An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown.

The Veteran underwent a VA examination in June 2017.  The Veteran reported significant difficulty hearing in general.  The resulting examination report shows puretone thresholds, in decibels, as follows:

HERTZ

500
1000
2000
3000
4000
RIGHT
35
35
55
80
90
LEFT
35
30
45
80
90

The puretone threshold average was 65 decibels in the right ear and 61decibels in the left ear.  The Maryland CNC speech discrimination test revealed speech recognition ability of 86 percent in the right ear and 84 percent in the left ear.  The above audiological findings translate to a Level III hearing acuity for the right ear, and a Level III hearing acuity for the left ear under Table VI.  Applying these results to Table VII, a noncompensable disability rating is warranted.  An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown.

The Veteran underwent a private examination by a state licensed audiologist on October 27, 2017.  The resulting examination report shows puretone thresholds, in decibels, as follows:

HERTZ

500
1000
2000
3000
4000
RIGHT
70
70
75
85
100
LEFT
75
70
65
90
100

The puretone threshold average was 82.5 decibels in the right ear and 81.25 decibels in the left ear.  The Maryland CNC speech discrimination test revealed speech recognition ability of 80 percent in the right ear and 64 percent in the left ear.  The above audiological findings translate to a Level V hearing acuity for the right ear and a level VII hearing acuity in the left ear under Table VI.  Under Table VII, these findings warrant a 30 percent rating.

However, the Board notes that both ears exhibited an exceptional pattern of hearing impairment as defined by 38 C.F.R. § 4.86(a).  This regulation permits the rater to evaluate the Veteran's hearing loss under Table VIA, which uses only the puretone threshold average.  Applying the 82.5 decibel right ear puretone threshold average to Table VIA results in the assignment of Level VII hearing acuity in the right ear.  Applying the 81.25 decibel left ear puretone threshold average to Table VIA results in the assignment of Level VII hearing acuity in the left ear.  When combined pursuant to Table VII, these readings produce a 40 percent rating.

Based on the evidence above, the Board finds that the audiometric testing fails to reflect that the Veteran's bilateral hearing loss disability met the criteria to warrant a compensable rating prior to May 29, 2014.  However, resolving reasonable doubt in favor of the Veteran, the Board finds that a 30 percent disability rating (but no higher) for bilateral hearing loss is warranted effective May 29, 2014, the earliest date upon which it is factually ascertainable that the Veteran experienced a worsening of symptoms, and that a 40 percent disability rating (but no higher) for bilateral hearing loss is warranted effective October 27, 2017.  

To the extent that the Veteran contends that his hearing loss is even more severe than currently evaluated, the Board observes that the Veteran, while competent to report symptoms such as difficulty understanding conversation, he is not competent to report that his hearing acuity is of sufficient severity to warrant a higher evaluation under VA's tables for rating hearing loss disabilities because such an opinion requires medical expertise (training in evaluating hearing impairment), which he has not been 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); Woehlaert v. Nicholson, 21 Vet. App. 456 (2007); Charles v. Principi, 16 Vet. App. 370 (2002).  

Moreover, as noted above, disability ratings for hearing impairment are to be derived by the mechanical application of the Rating Schedule to the numeric designations assigned based on objective audiometric test results.  See Lendenmann, supra (explaining that the assignment of disability ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered).  Thus, even after considering such contentions as to the functional effects of the Veteran's hearing loss disability, without medical evidence of bilateral hearing loss which merits higher evaluations, the Veteran's condition is properly rated as discussed above.

To the extent that ratings higher than those noted above have been denied, the Board has considered the doctrine of reasonable doubt.  However, as the preponderance of the evidence is against this claim, the claim is not in equipoise.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).


ORDER

Prior to May 29, 2014, entitlement to a compensable rating for bilateral hearing loss is denied.

From May 29, 2014 to October 26, 2017, entitlement to a 30 percent rating for bilateral hearing loss is granted, subject to the laws and regulations governing the award of monetary benefits.

Since October 27, 2017, entitlement to a 40 percent rating for bilateral hearing loss is granted, subject to the laws and regulations governing the award of monetary benefits.



____________________________________________
DEBORAH W. SINGLETON
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs