Citation Nr: 1816366	
Decision Date: 03/15/18    Archive Date: 03/23/18

DOCKET NO.  12-33 708	)	DATE
	)
	)

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


THE ISSUE

Entitlement to an initial compensable rating for service-connected bilateral hearing loss disability.


REPRESENTATION

Appellant represented by:	Florida Department of Veterans Affairs


ATTORNEY FOR THE BOARD

K. R. Fletcher



INTRODUCTION

The Veteran served on active duty from May 1969 to February 1970

This matter is before the Board of Veterans' Appeals (Board) on appeal from an August 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.  

This issue was before the Board in June 2017 when it was remanded for additional development.

The Veteran was scheduled to appear at the St. Petersburg RO for a personal hearing before a Veterans Law Judge in May 2017.  However, the Veteran, through his representative, withdrew his request for a hearing pursuant to 38 C.F.R. § 20.704(e) (2017).  See statement received in May 2017.


FINDING OF FACT

During the entire appeal period, audiometric findings have shown that the Veteran had no more than Level I hearing acuity in the right ear and Level I hearing acuity in the left ear; he has not had an exceptional pattern of hearing loss at any time.


CONCLUSION OF LAW

The criteria for an initial compensable rating for a bilateral hearing loss disability are not met for any portion of the appeal period.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code (DC) 6100 (2017).





REASONS AND BASES FOR FINDING AND CONCLUSION

Duties to Notify and Assist

Under applicable criteria, VA has certain notice and assistance obligations to claimants.  See 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).  In this case, required notice was met, and neither the Veteran, nor his representative, has either alleged, or demonstrated, any prejudice with regard to the content or timing of VA's notices or other development.  See Shinseki v. Sanders, 129 U.S. 1696 (2009).  Thus, adjudication of the claim at this time is warranted. 

As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  Service treatment records (STRs), and identified, available VA treatment records have been obtained.  The Veteran was also provided VA examinations (most recently in 2017) which the Board finds to be adequate for rating purposes, as the examiners had a full and accurate knowledge of the Veteran's disability and contentions and grounded their opinions in the medical literature and evidence of record.  See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  Moreover, neither the Veteran nor his representative has objected to the adequacy of the examinations conducted during this appeal.  See Sickels v. Shinseki, 643 F.3d, 1362, 1365-66 (Fed. Cir. 2011). 

As described, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose.  See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).  Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal.

Initial Rating for Bilateral Hearing Loss Disability

The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal.  Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record.  Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence).  Hence, the Board will summarize the relevant evidence where appropriate and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. 

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4.  The Rating Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service.  The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations.  38 U.S.C. § 1151; 38 C.F.R. § 4.1. 

If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned.  38 C.F.R. § 4.7.  It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances.  38 C.F.R. § 4.21.  All benefit of the doubt will be resolved in the Veteran's favor.  38 C.F.R. § 4.3. 

At the time of an initial rating, separate ratings can be assigned for separate periods of time based on the facts found-a practice known as "staged" ratings.  Fenderson v. West, 12 Vet. App. 119 (1999).  The United States Court of Veterans Claims (Court) has held that "staged" ratings are appropriate for an increased rating claim where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings.  Hart v. Mansfield, 21 Vet. App. 505 (2007).

The Veteran's hearing loss disability is rated noncompensable, effective April 18, 2011, under 38 C.F.R. § 4.86, DC 6100. 

The assignment of disability ratings for impairment of hearing acuity is derived by the mechanical application of the Rating Schedule to the numeric designations assigned, after audiometric evaluations are rendered.  See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992).

The Rating Schedule provides a table for rating purposes (Table VI) to determine a Roman numeral designation (at Levels I through XI) for hearing impairment. Table VII is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment in both ears.  See 38 C.F.R. § 4.85.

VA rating criteria for evaluating hearing loss disability provide ratings from 0 (noncompensable) to 100 percent, based on the results of controlled speech discrimination tests together with the results of pure tone audiometry tests.  38 C.F.R. §§ 4.85, 4.86, DC 6100.  "Pure tone threshold average," as used in Table VI, is the sum of the pure tone thresholds at 1000, 2000, 3000 and 4000 Hertz, divided by four.  Average pure tone decibel loss is located on Table VI along a horizontal axis, and percent of speech discrimination is located along a vertical axis.  These axes intersect to determine the Roman numeral designation for hearing impairment in each ear.  The results are then matched between the "better" ear and the "poorer" ear on Table VII to produce a disability rating under DC 6100.

When the puretone threshold at each of the four specified frequencies (1,000, 2,000, 3,000 and 4,000 Hertz ) is 55 decibels or more, Table VI or Table VIa is to be used, whichever results in the higher numeral.  38 C.F.R. § 4.86(a).  Additionally, when the puretone threshold is 30 decibels or less at 1,000 Hertz, and 70 decibels or more at 2,000 Hertz, Table VI or Table VIa is to be used, whichever results in the higher numeral.  Thereafter, that numeral will be elevated to the next higher numeral.  38 C.F.R. § 4.86(b).

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 pure tone audiometry test. Examinations will be conducted without hearing aids.  38 C.F.R. § 4.85(a).

In Martinak v. Nicholson, 21 Vet. App. 447 (2007), the Court held that in addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in his or her final report.  Martinak, 21 Vet. App. at 455.  The Court also noted, however, that even if an audiologist's description of the functional effects of a veteran's hearing disability was somehow defective, the veteran bears the burden of demonstrating any prejudice caused by a deficiency in the examination.  Id.   

On July 2011 VA audiological evaluation, the examiner reviewed the claims file and noted the Veteran's current complaints of hearing loss with difficulty hearing in background noise or with multiple speakers.  Examination revealed puretone thresholds for the right ear, in decibels, at 1000, 2000, 3000, and 4000 Hz as follows: 15, 25, 45, 55, for an average of 35; and puretone thresholds for the left ear, in decibels, at 1000, 2000, 3000, and 4000 Hz as follows: 15, 15, 45, 55, for an average of 32.5.  The speech recognition scores, using the Maryland CNC Test, were 100 percent in the right ear and 98 percent in the left ear.  

In an August 2011 Notice of Disagreement, the Veteran stated that he had problems hearing in crowds.  He reported that he had to turn up the volume on the television in order to hear it.  In a November 2012 VA Form 9, the Veteran stated that his hearing loss affected his daily life and he now needed hearing aids.

VA treatment records dated from 2013 to 2017 note the Veteran's complaints of hearing impairment.  He was fitted for hearing aids but returned them during the trial period.

On August 2017 VA audiological evaluation, the examiner reviewed the claims file and noted the Veteran's current complaints of hearing loss.  Examination revealed puretone thresholds for the right ear, in decibels, at 1000, 2000, 3000, and 4000 Hz as follows: 30, 45, 65, 65, for an average of 51; and puretone thresholds for the left ear, in decibels, at 1000, 2000, 3000, and 4000 Hz as follows: 30, 45, 65, 70, for an average of 53.  The speech recognition scores, using the Maryland CNC Test, were 92 percent in the right ear and 94 percent in the left ear.  The examiner stated that the effect of hearing loss on the Veteran's daily life, including his ability to work, was difficulty understanding speech, especially in noise.  Specifically, the examiner noted that the Veteran complained, "[I]f I want to go to a restaurant I can't hear what people are saying.  Everyone is talking and I have to say what I can't hear you.  It is very confusing.  I don't want to have to keep saying what did you say.  Sometimes at home I have to turn the TV up loud.  I don't hear it right.  My hearing loss does not stop me from doing things.  It is just very frustrating and people don't want to repeat themselves." 

Evaluating the VA audiological test results cited above, the Board finds that when the pure tone threshold averages and the speech recognition scores for the right ear from the VA examination in 2011 are applied to Table VI, the numeric designation of hearing impairment is Level I.  When the pure tone threshold averages and speech recognition scores for the left ear are applied to Table VI, the numeric designation of impairment is Level I.  When these numeric designations for the right and left ears from the VA examination are applied to Table VII (Percentage Evaluation for Hearing Impairment-DC 6100), the percentage of disability for hearing impairment is 0 percent, and a compensable rating is therefore not warranted.  See 38 C.F.R. § 4.85, DC 6100.  Likewise, when the pure tone threshold averages and the speech recognition scores for the right ear from the VA examination in 2017 are applied to Table VI, the numeric designation of hearing impairment is Level I.  When the pure tone threshold averages and speech recognition scores for the left ear are applied to Table VI, the numeric designation of impairment is Level I.  When these numeric designations for the right and left ears from the VA examination are applied to Table VII (Percentage Evaluation for Hearing Impairment-DC 6100), the percentage of disability for hearing impairment is 0 percent, and a compensable rating is therefore not warranted.  See 38 C.F.R. § 4.85, DC 6100.

In addition, the Board notes that the 2017 VA examiner discussed the functional effects caused by the Veteran's hearing disability in his report, to include difficulty understanding speech, as noted above.  See Martinak, supra.

The provisions of 38 C.F.R. § 4.86 which address exceptional patterns of hearing loss are not applicable.  There is no showing that Veteran had an exceptional pattern of hearing loss at any time.

Consideration is given to the Veteran's statements regarding the effects of his hearing loss.  He is competent and credible in this regard.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) and 38 C.F.R. § 3.159 (a)(2).  However, as a layperson, without the appropriate medical training and expertise, he is not competent to provide a probative (persuasive) opinion on a medical matter, especially the severity of his hearing loss disability in terms of the applicable rating criteria.  As noted above, the evaluation of hearing loss is reached by a mechanical application of the rating schedule, to the numeric designations assigned, after audiometric evaluations are rendered.  See Lendenmann, supra.  The requirements of 38 C.F.R. § 4.85 set out the percentage ratings for exact numerical levels of impairment required for a compensable evaluation of hearing loss, which requires specific testing. 

In reviewing the record, the Board finds that the Veteran's degree of bilateral hearing loss disability has not met the standards for a compensable evaluation at any point during the pendency of the appeal.  See Fenderson, supra.  The preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply, and the claim for an initial compensable rating for bilateral hearing loss disability must be denied.  38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102.


ORDER

An initial compensable rating for bilateral hearing loss disability is denied.



____________________________________________
A. ISHIZAWAR
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs