Citation Nr: 1817138	
Decision Date: 03/20/18    Archive Date: 03/30/18

DOCKET NO.  10-06 940	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas


THE ISSUE

Entitlement to a rating in excess of 10 percent for bilateral hearing loss.


REPRESENTATION

Veteran represented by:	Texas Veterans Commission


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

S.S. Mahoney, Associate Counsel 


INTRODUCTION

The Veteran served on active duty in the United States Marine Corps from March 1966 to June 1969 and received the Combat Action Ribbon.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO).

The Veteran testified at a hearing before the undersigned Veterans Law Judge in May 2015. 

In June 2015, the Board remanded the issue on appeal for further development. 


FINDING OF FACT

Throughout the appeal period, the Veteran's bilateral hearing loss has been manifested by no worse than Level IV hearing impairment in both the right and the left ear.


CONCLUSION OF LAW

The criteria for a rating in excess of 10 percent for bilateral hearing loss are not met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85, Diagnostic Code (DC) 6100, 4.86 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran asserts that his bilateral hearing loss has worsened.  He reports that he has difficulty hearing in crowded rooms, has to watch to television at the maximum volume, and sometimes has problems hearing with his hearing aids.  See May 2015 Board Hearing Transcript at 4-5.

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 percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity in civil occupations.  38 U.S.C. § 1155.  The disability must be viewed in relation to its history.  38 C.F.R. § 4.1.  If two disability ratings are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  Reasonable doubt as to the degree of disability will be resolved in favor of the claimant.  38 C.F.R. § 4.3.

Ratings for hearing impairment are derived from a mechanical application of the Rating Schedule, using numeric designations based upon the results of controlled speech discrimination tests (Maryland CNC), together with the average hearing threshold level as measured by puretone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 Hertz.  See 38 C.F.R. § 4.85; see also Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992).  By applying the tables in the Rating Schedule to the Veteran's test results, a Roman numeral designation is assigned, ranging from Level I for essentially normal acuity to Level XI for profound deafness.  See 38 C.F.R. § 4.85, DC 6100, Table VI and Table VIA.  These Roman numeral designations are then used to determine the percentage evaluation for hearing impairment by applying Table VII.  Id.

By way of background, a July 1999 rating decision awarded service connection for bilateral hearing loss and assigned a 10 percent rating, effective July 27, 1997.  Thereafter, a November 2004 rating decision increased the rating to 10 percent, effective May 26, 2004.  The current appeal period before the Board begins on June 16, 2006, the date VA received the Veteran's claim for an increased rating, plus the one-year "look back" period.  Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010).

The Veteran did not report for an examination scheduled in August 2006.  During a VA examination in January 2010, a VA examiner conducted both air conduction and bone conduction testing and determined that the air conduction study better reflected the Veteran's hearing loss disability.  The pure tone thresholds results, in decibels, were as follows:




HERTZ



1000
2000
3000
4000
AVERAGE
RIGHT
30
55
70
75
58
LEFT
35
60
65
70
58

Speech audiometry revealed a Maryland CNC speech discrimination score of 92 percent in the right ear and 88 percent in the left ear, with an average loss of 58 decibels in both ears.  This correlates to Level II hearing impairment in the right ear and Level III hearing impairment in the left hear, which warrants a 0 percent disability rating.  See 38 C.F.R. § 4.85, Table VI, Table VII (DC 6100).

In April 2014, the Veteran underwent another VA examination which revealed the following puretone thresholds, in decibels:




HERTZ



1000
2000
3000
4000
AVERAGE
RIGHT
40
65
70
70
61
LEFT
40
55
65
65
56

Speech audiometry revealed a Maryland CNC speech discrimination score of 80 percent in the right ear, as well as 80 percent in the left ear, with an average loss of 61 decibels in the right ear and 56 decibels in the left ear.  This correlates to Level IV hearing impairment in the right ear, as well as Level IV hearing impairment in the left hear, which warrants a 10 percent disability rating.  See 38 C.F.R. § 4.85, Table VI, Table VII (DC 6100).

In June 2015, the Veteran underwent a private audiological examination, which did not include a Maryland CNC controlled speech discrimination test.  Therefore, this examination is inadequate for VA rating purposes and cannot be utilized to evaluate the Veteran's hearing loss.  38 C.F.R. § 4.85(a).

In December 2015, pursuant to the Board's remand, the Veteran underwent another VA examination, which revealed the following puretone thresholds, in decibels:




HERTZ



1000
2000
3000
4000
AVERAGE
RIGHT
35
65
70
65
59
LEFT
40
55
65
65
56

Speech audiometry revealed a Maryland CNC speech discrimination score of 94 percent in the right ear and 96 percent in the left ear, with an average loss of 59 decibels in the right ear and 56 decibels in the left ear.  This correlates to Level II hearing impairment in the right ear and Level I hearing impairment in the left hear, which warrants a 0 percent disability rating.  See 38 C.F.R. § 4.85, Table VI, Table VII (DC 6100).

A pattern of exceptional hearing loss has not been demonstrated, as puretone thresholds in each of the four frequencies 1000, 2000, 3000, and 4000 Hertz were not 55 decibels or greater, or 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz during any examination.  38 C.F.R. § 4.86.

VA examiners have noted the functional impact of the Veteran's bilateral hearing loss (difficulty hearing and understanding normal conversational level speech, especially in the presence of background noise or at a distance and when not using his hearing aids; difficulty conversing by phone; and difficulty understanding television and radio dialogue).  Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007).  However, as noted above, the assignment of disability ratings for hearing impairment are derived by a mechanical application of audiometric evaluation results to the rating schedule.  Lendenmann, 3 Vet. App. at 349.  As such, even considering the Veteran's reports as to the effects of his hearing loss on his daily life, the relevant evidence shows that a rating in excess of 10 percent for bilateral hearing loss is not warranted.
ORDER

A rating in excess of 10 percent for bilateral hearing loss is denied.



____________________________________________
S. BUSH
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs