Citation Nr: 1808684	
Decision Date: 02/09/18    Archive Date: 02/20/18

DOCKET NO.  12-34 053	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Newark, New Jersey


THE ISSUE

Entitlement to a higher initial rating for bilateral hearing loss, currently rated as noncompensably disabling.


REPRESENTATION

Veteran represented by:	National Association of County Veterans Service Officers


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

M.W. Kreindler, Counsel


INTRODUCTION

The Veteran served on active duty from February 1973 to February 1977.
 
This matter came to the Board of Veterans' Appeals (Board) from a January 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) which granted service connection for hearing loss, left ear, and denied service connection for hearing loss, right ear.  In May 2013, service connection was granted for hearing loss, right ear.  

The Veteran presented testimony at a Board hearing in November 2015; the transcript is of record.

The matter was remanded in February 2016 and July 2017.


FINDING OF FACT

The probative evidence of record reflects that the Veteran has had no worse than level II hearing loss in both the right ear and level II hearing loss in the left ear.


CONCLUSION OF LAW

The criteria for entitlement to a compensable disability rating for bilateral hearing loss have not been met.  38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.3, 4.10, 4.85, Diagnostic Code 6100 (2017).



REASONS AND BASES FOR FINDING AND CONCLUSION

VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  No further notice is required regarding the downstream issue of a higher initial rating for bilateral hearing loss as it stems from the grant of service connection, and no prejudice has been alleged.  

Next, VA has a duty to assist the Veteran in the development of the claim.  This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary.  38 U.S.C. § 5103A; 38 C.F.R. § 3.159.  The Board notes that the claims file contains the Veteran's private audiological examination reports.  Moreover, his statements and testimony in support of the claim are of record.  The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim.  Additionally, the Veteran underwent VA examinations, which are addressed in detail below.  

Given the above, the Board will proceed to the merits of this appeal.

Criteria & Analysis

Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability.  38 U.S.C. § 1155; 38 C.F.R. Part 4.  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 order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the veteran's condition.  Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991).  As the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time.  The Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made.  The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. 

Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects her ability to function under the ordinary conditions of daily life, including employment, by comparing her symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule).  38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10.  In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition.  The Board has a duty to acknowledge and consider all regulations that are potentially applicable.  The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required.  38 C.F.R. §§ 4.1, 4.2, 4.10. 

The Rating Schedule provides a table for ratings purposes (Table VI) to determine a Roman numeral designation (I through XI) for hearing impairment, established by a state-licensed audiologist including a controlled speech discrimination test (Maryland CNC), and based upon a combination of the percent of speech discrimination and the puretone threshold average which is the sum of the puretone thresholds at 1000, 2000, 3000 and 4000 Hertz, divided by four.  38 C.F.R. § 4.85.

Table VII is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment of each ear.  The horizontal row represents the ear having the poorer hearing and the vertical column represents the ear having the better hearing.  Id.

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.  38 C.F.R. § 4.86(a).  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.  38 C.F.R. § 4.86(b).

To evaluate the degree of disability from defective hearing, the rating schedule establishes eleven auditory acuity levels designated from "I" for essentially normal acuity, through "XI" for profound deafness.  38 C.F.R. § 4.85, Tables VI, VII.

A noncompensable evaluation is provided where hearing in the better ear is I and hearing in the poorer ear is I through IX; where hearing in the better ear is II, and hearing in the poorer ear is II to IV; or where there is level III hearing in both ears.  A 10 percent disability rating is warranted where hearing in the better ear is I, and hearing in the poorer ear is X to XI; or where hearing in the better ear is II, and hearing in the poorer ear is V to XI; or where hearing in the better ear is III, and hearing in the poorer ear is IV to VI..  38 C.F.R. § 4.85, Table VII, Diagnostic Code 6100.  

Pertinent case law provides that the assignment of disability ratings for hearing impairment are to be derived by the mechanical application of the Ratings Schedule to the numeric designations assigned after audiometry evaluations are rendered.  Lendenmann v. Principi, 3 Vet. App. 345 (1992).

In this case, the Veteran has been assigned a noncompensable evaluation throughout the rating period on appeal.  The Board finds no basis for an award of a higher rating, as discussed below.  

In December 2009, the Veteran underwent a private audiological evaluation.  01/14/2010 Medical Treatment Record-Non-Government Facility.  Pure-tone thresholds for the ears based on a reading of the graph were as follows:


HERTZ

1000
2000
3000
4000
RIGHT
30
28
40
50
LEFT
50
40
40
58

The pure tone average in the right ear was 37 decibels and 47 decibels in the left ear.  Speech recognition scores were 92 percent in the right ear and 96 percent in the left ear.  Such findings translate to level I hearing in the ears.  38 C.F.R. § 4.85, Table VI.  Applying Table VII, Diagnostic Code 6100, this equates to a 0 (zero) percent disability rating.

In December 2010, the Veteran underwent a VA audiological evaluation.  12/06/2010 VA Examination.  Pure-tone thresholds for the ears were as follows:


HERTZ

1000
2000
3000
4000
RIGHT
10
10
35
35
LEFT
20
20
55
40

The pure tone average in the right ear was 22.5 (23) decibels and 33.75 (34) decibels in the left ear.  Speech recognition scores were 94 percent in both ears.  Such findings translate to level I hearing in both ears.  38 C.F.R. § 4.85, Table VI.  Applying Table VII, Diagnostic Code 6100, this equates to a 0 (zero) percent disability rating.  


In February 2011, the Veteran underwent a private audiological evaluation.  03/02/2011 Medical Treatment Record-Non-Government Facility.  Pure-tone thresholds for the ears based on a reading of the graph were as follows:


HERTZ

1000
2000
3000
4000
RIGHT
35
40
50
55
LEFT
45
50
70
55

The pure tone average in the right ear was 45 decibels and 55 decibels in the left ear.  Speech recognition scores were 76 percent in the right ear and 72 percent in the left ear.  Such findings translate to level III hearing in the right ear and level V hearing in the left ear.  38 C.F.R. § 4.85, Table VI.  Applying Table VII, Diagnostic Code 6100, this equates to a 10 percent disability rating.  

In June 2011, the Veteran underwent a private audiological evaluation.  07/25/2011 Medical Treatment Record-Non-Government Facility.  Pure-tone thresholds for the ears based on a reading of the graph were as follows:


HERTZ

1000
2000
3000
4000
RIGHT
45
30
32
35
LEFT
30
35
38
40

The pure tone average in the right ear was 35.5 decibels (36) and 35.75 decibels (36) in the left ear.  Speech recognition scores were 96 percent in the right ear and 92 percent in the left ear.  Such findings translate to level I hearing in both ears.  38 C.F.R. § 4.85, Table VI.  Applying Table VII, Diagnostic Code 6100, this equates to a 0 (zero) percent disability rating.  


In May 2013, the Veteran underwent a VA audiological evaluation.  07/25/2011 Medical Treatment Record-Non-Government Facility.  Pure-tone thresholds for the ears were as follows:


HERTZ

1000
2000
3000
4000
RIGHT
15
15
35
40
LEFT
20
20
50
40

The pure tone average in the right ear was 26 decibels and 32 decibels in the left ear.  Speech recognition scores were 96 percent in both ears.  Such findings translate to level I hearing in both ears.  38 C.F.R. § 4.85, Table VI.  Applying Table VII, Diagnostic Code 6100, this equates to a 0 (zero) percent disability rating.  

In October 2015, the Veteran underwent a private audiological evaluation.  11/10/2015 Medical Treatment Record-Non-Government Facility.  Pure-tone thresholds for the ears based on a reading of the graph were as follows:


HERTZ

1000
2000
3000
4000
RIGHT
65
65
67
70
LEFT
75
85
82
80

The pure tone average in the right ear was 66.75 decibels (67) and 80.5 decibels (81) in the left ear.  Speech recognition scores were 70 percent in the right ear and 75 percent in the left ear.  Such findings translate to level VI hearing in both ears.  38 C.F.R. § 4.85, Table VI.  Applying Table VII, Diagnostic Code 6100, this equates to a 30 percent disability rating.  


In May 2016, the Veteran underwent a VA audiological evaluation.  05/25/2016 C&P Exam.  Pure-tone thresholds for the ears were as follows:


HERTZ

1000
2000
3000
4000
RIGHT
20
20
40
45
LEFT
20
25
55
45

The pure tone average in the right ear was 31 decibels and 36 decibels in the left ear.  Speech recognition scores were 94 percent in both ears.  Such findings translate to level I hearing in both ears.  38 C.F.R. § 4.85, Table VI.  Applying Table VII, Diagnostic Code 6100, this equates to a 0 (zero) percent disability rating.  

The May 2016 VA examiner explained that the results obtained in May 2016 are judged to be reliable.  The Veteran was previously tested at VA and pure tone thresholds were similar to those in May 2016.  Speech recognition scores were also similar in 2010 and 2013 as they were in the 2016 examination.  Testing done at VA for C&P follows very specific protocols.  The private evaluation in October 2015 showed very different results for pure tone thresholds and for speech recognition.  The examiner stated that it was unknown what protocols were followed for testing at the private facility.  The examiner opined that the test results submitted for C&P purposes in May 2016 are judged to be reliable as they are corroborated by numerous other examinations conducted at VA.  06/24/2016 C&P Exam.


On July 25, 2016, the Veteran underwent a private audiological evaluation.  08/25/2016 Medical Treatment Record-Non-Government Facility.  Pure-tone thresholds for the ears based on a reading of the graph were as follows:


HERTZ

1000
2000
3000
4000
RIGHT
38
28
55
65
LEFT
40
33
49
65

The pure tone average in the right ear was 46.5 decibels (47) and 46.75 decibels (47) in the left ear.  Speech recognition scores were 88 percent in the right ear and 92 percent in the left ear.  Such findings translate to level II hearing in the right ear and level I hearing in the left ear.  38 C.F.R. § 4.85, Table VI.  Applying Table VII, Diagnostic Code 6100, this equates to a 0 (zero) percent disability rating.  

On July 27, 2016, the Veteran underwent a private audiological evaluation.  08/11/2016 Medical Treatment Record-Non-Government Facility.  Pure-tone thresholds for the ears based on a reading of the graph were as follows:


HERTZ

1000
2000
3000
4000
RIGHT
30
30
45
50
LEFT
25
30
65
65

The pure tone average in the right ear was 38.75 decibels (39) and 46.25 decibels (46) in the left ear.  Speech recognition scores were 86 percent in the right ear and 82 percent in the left ear.  Such findings translate to level II hearing in the right ear and level III hearing in the left ear.  38 C.F.R. § 4.85, Table VI.  Applying Table VII, Diagnostic Code 6100, this equates to a 0 (zero) percent disability rating.  


In August 2016, the Veteran underwent a private audiological evaluation.  08/11/2016 Medical Treatment Record-Non-Government Facility.  Pure-tone thresholds for the ears based on a reading of the graph were as follows:


HERTZ

1000
2000
3000
4000
RIGHT
30
30
40
50
LEFT
30
30
54
50

The pure tone average in the right ear was 37.5 decibels (38) and 41 decibels in the left ear.  Speech recognition scores were 92 percent in the right ear and 96 percent in the left ear.  Such findings translate to level I hearing in both ears.  38 C.F.R. § 4.85, Table VI.  Applying Table VII, Diagnostic Code 6100, this equates to a 0 (zero) percent disability rating.  The examiner commented that there appeared to be a discrepancy in audiometric results from October 2015.  The examiner stated that the results are not consistent with the findings in February 2011 as well as the results from VA.  The examiner stated that it is possible that the Veteran was exaggerating his hearing loss on that date.  

In October 2017, the Veteran underwent a private audiological evaluation.  10/26/2017 Medical Treatment Record-Non-Government Facility.  Pure-tone thresholds for the ears based on a reading of the graph were as follows:


HERTZ

1000
2000
3000
4000
RIGHT
30
35
45
50
LEFT
30
35
60
50

The pure tone average in the right ear was 40 decibels and 43.75 decibels (44) in the left ear.  Speech recognition scores were 100 percent in both ears.  Such findings translate to level I hearing in both ears.  38 C.F.R. § 4.85, Table VI.  Applying Table VII, Diagnostic Code 6100, this equates to a 0 (zero) percent disability rating.  

The Board finds that the probative evidence of record does not support a compensable rating for bilateral hearing loss during any portion of the rating period on appeal.  As detailed above, in October 2015 the audiological results supported a 30 percent disability rating; however, that examiner, who also conducted the August 2016 evaluation, stated that there was a discrepancy in the findings and indicated that the Veteran may have been exaggerating his hearing loss in October 2015.  Likewise, such findings are inconsistent with those found in May 2016.  The May 2016 VA examiner explained that the results were reliable and corroborated by others examinations of record.  Based on the comments of both examiners, the Board finds that the October 2015 audiometric findings do not provide a proper representation of the Veteran's hearing loss.  The Board also acknowledges the February 2011 audiological results which supported a 10 percent rating.  Such findings are inconsistent with those documented in December 2010 and June 2011, especially the speech recognition scores which were substantially lower in February 2011.  The Board finds that the February 2011 audiological results also do not provide a proper representation of the Veteran's hearing loss.  

The Board acknowledges the Veteran's statements and testimony regarding his hearing loss.  Specifically, he asserts that he has to ask people to repeat themselves and cannot understand his spouse at times.  11/10/2015 Hearing Testimony at 8.  The rating criteria are intended to compensate for the impairment resulting from the hearing loss disability.  38 C.F.R. §§ 4.1, 4.85.  However, the pertinent and objective evidence of hearing impairment does not approximate the criteria for a compensable disability rating.  Lendenmann, 3 Vet. App. at 349 (noting that when VA assigns a schedular disability rating to a veteran's hearing loss, it generally is required by law to base its decision entirely on audiometric testing results); 38 C.F.R. § 4.85, Tables VI and VII, Diagnostic Code 6100.  

Applying the probative audiologic test results most favorable to the Veteran to the regulatory criteria, the Board is compelled to conclude that the preponderance of the evidence is against entitlement to a compensable disability rating for bilateral hearing loss disability.  Thus, there is no reasonable doubt to be resolved.  

The United States Court of Appeals for Veterans Claims (Court) recently discussed extraschedular consideration in the context of bilateral hearing loss:

[T]he Court holds that the [schedular] rating criteria for hearing loss contemplate the functional effects of decreased hearing and difficulty understanding speech in an everyday work environment, as these are precisely the effects that VA's audiometric tests are designed to measure.  Thus, when a claimant's hearing loss results in an inability to hear or understand speech or to hear other sounds in various contexts, those effects are contemplated by the schedular rating criteria.  However, as the rating criteria do not otherwise discuss, let alone account for, other functional effects, such as dizziness, vertigo, ear pain, etc., the Court cannot conclude that the rating schedule, on its face, contemplates effects other than difficulty hearing or understanding speech.

Doucette v. Shulkin, 28 Vet. App. 366, 369 (2017) (emphasis added).  The Court further noted that "a hearing loss claimant could provide evidence of numerous symptoms, including-for purposes of example only-ear pain, dizziness, recurrent loss of balance, or social isolation due to difficulties communicating, and the Board would be required to explain whether the rating criteria contemplate those functional effects."  Id. at 371.

In the decision here on appeal, the Board notes that the 2016 VA examination report reflects that he has trouble understanding conversations in group environments due to his hearing loss.  He reported he worked for 30 years as a driver for a power and light company, and he could not hear alarms, backing up, or the radio, so he retired.  While acknowledging the functional effects and limitations associated with his hearing loss, in consideration of Doucette, the Board finds that the schedular rating contemplates the effects of the Veteran's service-connected bilateral hearing loss as they are related to functional effects of decreased hearing and difficulty understanding speech from his spouse and in crowds.  

In summary, for the reasons and bases expressed above, the Board has concluded that a compensable initial rating is not warranted for bilateral hearing loss and the benefit of the doubt is not applicable.  Accordingly, the benefit sought on appeal is denied.


ORDER

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



____________________________________________
ERIC S. LEBOFF
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs