Citation Nr: 1736581	
Decision Date: 08/31/17    Archive Date: 09/06/17

DOCKET NO.  13-14 394	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Muskogee, Oklahoma


THE ISSUE

Entitlement to a compensable rating for bilateral hearing loss.


REPRESENTATION

Appellant represented by:	Mary M. Long, Esq.


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

N. Staskowski, Associate Counsel


INTRODUCTION

The appellant is a Veteran who served in the Oklahoma National Guard from February 1993 to January 1998 with active duty for training (ACDUTRA) from July 1994 to October 1994 and additional periods of ACDUTRA and inactive duty for training (INACDUTRA).  This matter is before the Board of Veterans' Appeals (Board) on appeal from a May 2013 rating decision by the Muskogee, Oklahoma, Department of Veterans Affairs (VA) Regional Office (RO) that granted service connection for bilateral hearing loss rated 0 percent.  In December 2015, a videoconference hearing was held before the undersigned; a transcript of the hearing is associated with the Veteran's record.  In February 2016, this matter and a claim of service connection for chronic bronchitis were remanded for additional development.  In March 2017 the RO granted service connection for chronic bronchitis, and that issue is no longer before the Board.


FINDING OF FACT

On July 2011 private audiometry the Veteran's right ear hearing acuity was level II and left ear acuity was level III; on April 2013 VA audiometry his hearing acuity was level IV in the right ear and level II in the left, and on June 2016 examination his right ear hearing acuity was level II in each ear.


CONCLUSION OF LAW

A compensable rating for bilateral hearing loss is not warranted.  38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.85, 4.86 Diagnostic Code (Code) 6100 (2016).





REASONS AND BASES FOR FINDING AND CONCLUSION

Veterans Claims Assistance Act of 2000 (VCAA)

The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits.  
38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014).  This appeal is from the rating decision that granted service connection and assigned a disability rating and an effective date for the award.  Accordingly, the purpose of statutory notice was met, and such notice was no longer necessary.  A statement of case properly provided notice in the downstream issue of entitlement to an increased initial rating.

In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires the Veterans Law Judge who conducts a hearing to fulfill two duties:  (1) to fully explain the issues and (2) to suggest the submission of evidence that may have been overlooked and that might be potentially advantageous to the claimant's position.  At the December 2015 hearing, the undersigned identified the issue and what was needed to substantiate the claim.  A deficiency in the conduct of the hearing has not been alleged.  The Board finds that there was compliance with 38 C.F.R. § 3.103(c)(2), in accordance with Bryant.  

VA has obtained all pertinent(private and VA) treatment records the Veteran identified.  He was afforded examinations on behalf of VA in April 2013 and June 2016.  Neither the Veteran nor his representative has asserted a duty to assist omission.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) ("the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument).




Legal Criteria, Factual Background, and Analysis

Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule).  The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.  

Ratings of hearing loss disability are derived from Table VII of 38 C.F.R. § 4.85 by a mechanical application of the rating schedule to numeric designations assigned after audiometric evaluations are performed.  See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992).  The numeric designations correspond to eleven auditory acuity levels, indicated by Roman numerals, where Level I denotes essentially normal acuity and Level XI denote profound deafness.  The assignment of the appropriate numeric level is based on the results of a controlled speech discrimination test (Maryland CNC test) in combination with the claimant's average pure thresholds.  The average threshold is obtained from puretone audiometric tests in the frequencies of 1000, 2000, 3000, and 4000 Hertz (Hz).  38 C.F.R. § 4.85.

Rating specialists use either Table VI or VIa of 38 C.F.R. § 4.85 to determine the correct Roman numeral designation.  Table VIa is employed when the use of speech discrimination tests is inappropriate due to language difficulties, inconsistent speech discrimination scores, etc., or where there is an exceptional pattern of hearing loss (as defined in 38 C.F.R. § 4.86).  One such pattern occurs when the puretone threshold at each of the four specialized frequencies (1000, 2000, 3000, and 4000) is 55 decibels or more.  38 C.F.R. § 4.86(a).  Another pattern occurs when the puretone threshold at 1000 Hz is 30 decibels or less and the puretone threshold at 2000 Hz is 70 decibels or more.  38 C.F.R. § 4.86(b).

When the appeal is from the initial rating assigned with an award of service connection, the severity of the disability at issue during the entire period from the initial assignment of the disability rating to the present is to be considered, and "staged" ratings may be assigned, based on facts found.  See Fenderson v. West, 12 Vet. App. 119 (1999).  

A claim will be denied only if the preponderance of the evidence is against the claim.  See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990).  Reasonable doubt regarding the degree of disability should be resolved in favor of the claimant.  38 C.F.R. § 4.3.  

The Board notes that it has reviewed all of the evidence in the Veteran's record 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.  Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).  Hence, the Board will summarize the relevant evidence, as deemed appropriate, and the Board's analysis will focus specifically on what the evidence shows, or does not show, as to the claim.

On July 2011 private audiometry puretone threshold (in decibels) were: 




HERTZ



500
1000
2000
3000
4000
RIGHT
25
25
25
70
80
LEFT
30
25
35
65
65

The right ear puretone threshold average was 50 decibels and the left ear puretone threshold average was 48.  Speech audiometry revealed speech recognition ability of 88 percent in the right ear and 80 percent in the left ear.  The diagnoses were binaural hearing loss and tinnitus.

On April 2013 examination on behalf of VA, audiometry revealed that puretone threshold were:




HERTZ



500
1000
2000
3000
4000
RIGHT
35
40
55
70
85
LEFT
30
35
45
60
80

The right ear puretone threshold average was 63 decibels and the left ear puretone threshold average was 55 decibels.  Speech audiometry revealed speech recognition ability of 80 percent in the right ear and 84 percent in the left.  

At the December 2015 videoconference hearing the Veteran indicated that his hearing acuity had worsened since his April 2013 examination.  He described impairment in his job as a truck driver due to the hearing loss, and a difficulty understanding people with background noise because of ringing in his ears.

On June 2016 examination on behalf of VA, audiometry revealed that puretone threshold were:




HERTZ



500
1000
2000
3000
4000
RIGHT
25
30
35
75
75
LEFT
20
30
40
70
70

The right ear puretone threshold average was 54 decibels and the left ear puretone threshold average was 53 decibels.  Speech audiometry revealed speech recognition ability of 90 percent in each ear.

No audiometry during the period under consideration shows a hearing loss disability warranting a compensable rating under the schedular criteria.  The July 2011 private audiometry examination shows level II in the right ear and level III in the left ear.  The April 2013 audiometry examination shows level IV in the right ear and level II in the left ear.  The June 2016 audiometry examination shows level II in each ear.  Under Table VII the results of each examination warrant a 0 percent rating.  No examination found an exceptional pattern of hearing loss, as defined in 38 C.F.R. § 4.86 (so as to warrant rating under the alternate criteria in Table VIA).  

Regarding the Veteran's assertions that his hearing impairment is greater than reflected by the 0 percent rating assigned, the Board acknowledges that he is competent to testify as to symptoms he experiences, including difficulty hearing.  However, as a layperson, he is not competent to establish his level of hearing acuity by his own opinion.  See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  By governing regulation (38 C.F.R. § 4.85) hearing acuity must be established by audiometry specified in the regulation.  The findings on each audiometry in accordance with the regulatory guidelines during the evaluation period (both by the Veteran's private provider and those on behalf of VA) place the Veteran's hearing acuity squarely with the criteria for a 0 percent rating.

The Board acknowledges the Veteran's testimony regarding work impairment due to his hearing loss (inability to hear air leaks) and difficulty hearing conversation in background noise, and has to reason to question that the impairment is such as he describes.   However, such impairment is contemplated by the schedular criteria.  Notably, he has been able to maintain employment as a truck driver.

The preponderance of the evidence is against the Veteran's claim.  Therefore, the appeal in this matter must be denied.


ORDER

A compensable rating for bilateral hearing loss is denied.



____________________________________________
GEORGE R. SENYK
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs

Advertisements

Leave a Reply

Please log in using one of these methods to post your comment:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

w

Connecting to %s